Exhibit 4.5
BONSO ELECTRONICS INTERNATIONAL INC.
EMPLOYMENT AGREEMENT
WITH
XXXXXXX SO
This Employment Agreement is made on the 27th day of March, 2008 at
Shenzhen and entered into effective this 1st day of April, 2008, by and between
Bonso Electronics International Inc., a British Virgin Islands international
business company (the "Company"), and Xxxxxxx So, an individual ("Executive").
RECITALS
A. The Company desires to be assured of the association and services of
Executive for the Company.
B. Executive is willing and desires to be employed by the Company, and the
Company is willing to employ Executive, upon the terms, covenants and conditions
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto agree as follows:
1. Employment. The Company hereby employs Executive as its Chairman of the
Board of Directors, Chief Executive Officer and President.
2. Term. The term of this Agreement shall be for a period of five (5) years
effective as of April 1, 2008, and ending on March 31, 2013, (the "Initial
Term") unless terminated earlier pursuant to Section 6 below. This Agreement
shall be automatically renewed for successive one year periods (the "Renewal
Term") unless, at least 90 days prior to the expiration of the Initial Term or
any Renewal Term, either party gives written notice to the other party
specifically electing to terminate this Agreement at the end of the Initial Term
or any such Renewal Term.
3. Compensation; Reimbursement.
3.1 Base Salary. For all services rendered by Executive under this
Agreement, the Company shall pay Executive a base salary of Eight Hundred
Thousand United States Dollars (US$800,000) per year (the "Base Salary"). The
Base Salary shall be payable in equal, consecutive monthly installments. It is
expressly understood and agreed that the Base Salary may be increased upon the
approval of the Company's Compensation Committee (if such a committee exists) or
by a majority of the members of the Board of Directors.
3.2 Bonus. In addition to the Base Salary and the Deferred Compensation,
the Company shall pay Executive such Bonus or Bonuses as the Board of Directors
shall determine in their sole discretion.
3.3 Additional Benefits. In addition to the Base Salary and the Bonus,
Executive or his family shall be provided the exclusive use and possession of
the property located at Savanna Garden, House Xx. 00, Xxx Xx, Xxx Xxxxxxxxxxx,
Xxxx Xxxx ("Savanna Garden House") without any cost or charge to the Executive.
If the Savanna Garden House is sold during the term of this Agreement or during
any period that Company is obligated to provide Executive or his family with the
exclusive use and possession of Savanna Garden House, then Company agrees to
provide Executive with the possession and use of a property in the Hong Kong
Special Administrative Region that is substantially identical to the Savanna
Garden House of Executive's choice (or if Executive is deceased his family's
choice). References to Savanna Garden House in the remainder of this paragraph
shall be deemed to mean the property that is substantially identical to the
Savanna Garden House referenced in the preceding sentence as the context may
require. Executive shall be provided the exclusive possession and use of the
Savanna Garden House for the term of this Agreement and for five years after
this Agreement has been terminated for any reason without any cost or charge to
the Executive. If Executive should die while in possession and use of the
Savanna Garden House, Executive's family shall be entitled to remain in
possession and use of the Savanna Garden House until the later of the period to
which Executive would have been entitled to possession and use or five years
after the date of Executive's death. The Company shall be responsible for and
shall pay all costs of upkeep and maintenance of the Savanna Garden House for so
long as Executive or his family are entitled to possession and use, including
but not limited to taxes, insurance, maintenance, repairs, and all costs
associated with living in the Savanna Garden housing estate. Company agrees to
take no action to convey any interest in or to the Savanna Garden House to any
party other than Executive or his family during any period that Executive or his
family is entitled to the possession and use of the Savanna Garden House.
Company shall provide Executive with an automobile of Executive's choice
("Automobile") for his or his family's exclusive use during the term of this
Agreement and for five years after this Agreement is terminated. Company shall
be responsible for all costs of taxes, licensing, insurance, repair,
maintenance, fuel, and upkeep of the Automobile during this period. Company
shall pay such fees, dues, assessments and costs for memberships and use of such
clubs as Executive shall desire to join or continue as a member during the term
of this Agreement and for the five year period after this Agreement is
terminated. Company agrees to transfer any or all club membership interests to
Executive or his family upon request by Executive or members of his immediate
family (if Executive is deceased) without any charge or cost to Executive or
members of his immediate family. Company shall pay and be responsible to pay for
any costs associated with the transfer of club memberships. In addition, as part
of his compensation Executive shall be entitled to all other benefits of
employment provided to the employees of the Company.
3.4 Reimbursement. Executive shall be reimbursed for all reasonable
"out-of-pocket" business expenses for business travel and business entertainment
incurred in connection with the performance of his duties under this Agreement.
The reimbursement of Executive's business expenses shall be upon monthly
presentation to and approval by the Company of valid receipts and other
appropriate documentation for such expenses.
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4. Scope of Duties.
4.1 Assignment of Duties. Executive shall have such duties as may be
assigned to him from time to time by the Company's Board of Directors
commensurate with his experience and responsibilities in the positions for which
he is employed pursuant to Section 1 above. Such duties shall be exercised
subject to the control and supervision of the Board of Directors of the Company.
4.2 General Specification of Duties. Executive's duties shall include, but
not be limited to those duties that are generally associated with the positions
of Chairman of the Board of Directors, Chief Executive Officer and President of
a company similarly situated to the Company.
The foregoing specifications are not intended as a complete itemization of
the duties which Executive shall perform and undertake on behalf of the Company
in satisfaction of his employment obligations under this Agreement.
4.3 Executive's Devotion of Time. Executive hereby agrees to devote his
full time abilities and energy to the faithful performance of the duties
assigned to him and to the promotion and forwarding of the business affairs of
the Company, and not to divert any business opportunities from the Company to
himself or to any other person or business entity.
4.4 Conflicting Activities.
(a) Executive may, during the Initial Term or any Renewal Term of this
Agreement, be engaged in other business activities without the prior consent of
the Board of Directors of the Company; provided, however, that Executive may not
compete directly with the Company. Further, nothing in this Agreement shall be
construed as preventing Executive from investing his personal assets in passive
investments in business entities which are not in competition with the Company
or its affiliates, or from pursuing business opportunities as permitted by
Section 4.4(b).
(b) Executive hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or anticipated
future business of the Company, in a manner consistent with the best interests
of the Company and with his duties under this Agreement. Should Executive
discover a business opportunity that does not relate to the current or
anticipated future business of the Company, he shall be free to pursue that
opportunity without first offering such opportunity to the Company. It is
expressly understood that in developing any business opportunity for himself;
such development may not in any material way conflict or interfere with the
duties owed by Executive to the Company under this Agreement. As used herein,
the term "business opportunity" shall not include business opportunities
involving investment in publicly traded stocks, bonds or other securities, or
other investments of a personal nature.
5. Change of Control. If any time during the Initial Term or any Renewal
Term of this Agreement there is a change of control of the Company, as defined
below, and Executive's employment is terminated under Section 6.1(a), (b), (c)
or (d) within the greater of one (1) year following the change of control or the
remaining term of this Agreement (the "Change of Control Date"), the Company
shall pay to Executive (a) the balance of all amounts due from the Change of
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Control Date until the end of the Initial Term, including deferred compensation,
due under this Agreement plus (b) an amount equal to five times the sum of (i)
his annual Base Salary as in effect on the date of termination plus (ii) the
amount of bonus paid in the prior year to executive, and (c) any other amounts
due to Executive under any other provision of this Agreement. This amount shall
be paid to Executive in one lump sum as soon as practicable, but in no event
later than one hundred twenty (120) days, after the date that Executive's
employment is terminated. In addition to the lump sum payment referenced in the
preceding sentence, the Company shall pay to Executive any accrued and unpaid
Bonuses as provided for in Section 3.2 at the same time as the lump sum payment
is made. For example, if the Change of Control Date was April 1, 2009 and
Executive's employment is terminated on the same day, then the amount paid to
Executive would be equal to the balance of all amounts due from the Change of
Control Date until the end of the Initial Term [$800,000 (Base Salary) X 4 years
remaining on until the end of the Initial Term] plus an amount equal to [5 X
$800,000 (Base Salary)] plus [5 X 0 (Bonus plus other amounts)] or the sum of
$3.200,000 + $4,000,000 = $7,200,000. In addition, Executive shall be entitled
to the possession and use of the Savanna Garden House until the end of the
Initial Term or any additional term plus five calendar years thereafter without
cost or charge to the Executive. The Company shall continue to pay and be
responsible for the payment of all taxes, insurance, repairs, maintenance,
upkeep, or costs associated with the Savanna Garden Housing estate.
For purposes of this subsection, a Change of Control shall mean a change in
control of the Company of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended ("Exchange Act"), whether or not the
Company is subject to such reporting requirement; provided, however, that,
anything in this Agreement to the contrary notwithstanding, a Change in Control
shall be deemed to have occurred if:
(1) Any individual, partnership, firm, corporation, association, trust,
unincorporated organization or other entity or person, or any syndicate or
group deemed to be a person under Section 14(d)(2) of the Exchange Act, is
or becomes the "beneficial owner" (as defined in Rule 13d-3 of the General
Rules and Regulations under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined voting
power of the Company's then outstanding securities entitled to vote in the
election of directors of the Company;
(2) During any period of two (2) consecutive years (not including any
period prior to the execution of this Agreement) individuals who at the
beginning of such period constituted the Board and any new directors, whose
election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least a majority of the directors
then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof;
(3) Within two years after a tender offer or exchange offer for voting
securities of the Company, the individuals who were directors of the
Company immediately prior thereto shall cease to constitute a majority of
the Board;
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(4) There occurs a reorganization, merger, consolidation or other corporate
transaction involving the Company (a "Transaction"), in each case, with
respect to which the stockholders of the Company immediately prior to such
Transaction do not, immediately after the Transaction, own more than 50
percent of the combined voting power of the Company or other corporation
resulting from such Transaction; or
(5) All or substantially all of the assets of the Company are sold,
liquidated or distributed.
6. Termination.
6.1 Bases for Termination.
(a) Executive's employment hereunder may be terminated at any time by
mutual agreement of the parties.
(b) This Agreement shall automatically terminate on the last day of the
month in which Executive dies or becomes permanently incapacitated. "Permanent
incapacity" as used herein shall mean mental or physical incapacity, or both,
reasonably determined by the Company's Board of Directors based upon a
certification of such incapacity by, in the discretion of the Company's Board of
Directors, either Executive's regularly attending physician or a duly licensed
physician selected by the Company's Board of Directors, rendering Executive
unable to perform substantially all of his duties hereunder and which appears
reasonably certain to continue for at least six consecutive months without
substantial improvement. Executive shall be deemed to have "become permanently
incapacitated" on the date the Company's Board of Directors has determined that
Executive is permanently incapacitated and so notifies Executive. If Executive's
employment under this Agreement is terminated pursuant to this Section 6.1(b),
the Company shall (i) make a lump sum cash payment to Executive within 10 days
after termination is effective of an amount equal to (1) Executive's Base Salary
accrued to the date of termination; (2) unreimbursed expenses accrued to the
date of termination; and (3) any other amounts due to Executive under any other
provision of this Agreement. In addition, Company shall pay Executive or his
family (if Executive is deceased) an amount equal to Three times the Executive's
annual Base Salary within 60 days after termination is effective. For purposes
of this provision, Executive's annual Base Salary shall be calculated as of the
termination date. After the Company's termination of Executive under this
provision, the Company shall continue to be obligated to provide the benefits to
Executive described in Section 3.3.
(c) Executive's employment may be terminated by the Company (for any reason
or no reason at all) at any time by giving Executive 180 days prior written
notice of termination, which termination shall be effective on the 180th day
following such notice. If Executive's employment under this Agreement is so
terminated, the Company shall (i) make a lump sum cash payment to Executive
within 10 days after termination is effective of an amount equal to (1)
Executive's Base Salary accrued to the date of termination; (2) unreimbursed
expenses accrued to the date of termination; (3) an amount equal to the greater
of (a) Five times the Executive's annual Base Salary (i.e., 60 months of Base
Salary), or (b) amounts remaining due to Executive as Base Salary (assuming that
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payments under this Agreement were made until expiration of the Initial Term or
if applicable the Renewal Term), and (4) any other amounts due to Executive
under any other provision of this Agreement. For purposes of this provision,
Executive's annual Base Salary and the remaining portion of the term of the
Agreement shall be calculated as of the termination date. After the Company's
termination of Executive under this provision, the Company shall continue to be
obligated to provide the benefits to Executive described in Section 3.3. In
addition to the lump sum payment referenced in the preceding sentence, the
Company shall pay to Executive the Bonus provided for in Section 3.2 based upon
the number of days in the year that Executive was employed by the Company,
within one hundred five days after the end of the fiscal year in which Executive
was terminated.
(d) Executive may terminate his employment hereunder by giving the Company
60 days prior written notice, which termination shall be effective on the 60th
day following such notice.
6.2 Payments Upon Termination Pursuant To Sections 6.1(a), or (d). Upon
termination under Sections 6.1(a), or (d), the Company shall pay to Executive
within 10 days after termination an amount equal to the sum of (1) Executive's
Base Salary accrued to the date of termination; (2) unreimbursed expenses
accrued to the date of termination, and (3) any other amounts due to Executive
under any other provision of this Agreement. Except for the foregoing
compensation then due and owing and the benefits provided for in Section 3.3,
the Company shall not be obligated to compensate Executive, his estate or
representatives after any such termination.
7. Miscellaneous.
7.1 Transfer and Assignment. This Agreement is personal as to Executive and
shall not be assigned or transferred by Executive without the prior written
consent of the Company. This Agreement shall be binding upon and inure to the
benefit of all of the parties hereto and their respective permitted heirs,
personal representatives, successors and assigns.
7.2 Severability. Nothing contained herein shall be construed to require
the commission of any act contrary to law. Should there be any conflict between
any provisions hereof and any present or future statute, law, ordinance,
regulation or other pronouncement having the force of law, the latter shall
prevail, but the provision of this Agreement affected thereby shall be curtailed
and limited only to the extent necessary to bring it within the requirements of
the law, and the remaining provisions of this Agreement shall remain in full
force and effect.
7.3 Governing Law. This Agreement is made under and shall be construed
pursuant to the laws of BVI.
7.4 Counterparts. This Agreement may be executed in several counterparts
and all documents so executed shall constitute one agreement, binding on all of
the parties hereto, notwithstanding that all of the parties did not sign the
original or the same counterparts.
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7.5 Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements and understandings
with respect thereto. No representation, promise, inducement, statement or
intention has been made by any party hereto that is not embodied herein, and no
party shall be bound by or liable for any alleged representation, promise,
inducement or statement not so set forth herein.
7.6 Modification. This Agreement may be modified, amended, superseded or
cancelled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
party or parties to be bound by any such modification, amendment, supersession,
cancellation or waiver.
7.7 Attorneys' Fees and Costs. In the event of any dispute arising out of
the subject matter of this Agreement, the prevailing party shall recover, in
addition to any other damages assessed, its attorneys' fees and court costs
incurred in litigating or otherwise settling or resolving such dispute whether
or not an action is brought or prosecuted to judgment. In construing this
Agreement, none of the parties hereto shall have any term or provision construed
against such party solely by reason of such party having drafted the same.
7.8 Waiver. The waiver by either of the parties, express or implied, of any
right under this Agreement or any failure to perform under this Agreement by the
other party, shall not constitute or be deemed as a waiver of any other right
under this Agreement or of any other failure to perform under this Agreement by
the other party, whether of a similar or dissimilar nature.
7.9 Cumulative Remedies. Each and all of the several rights and remedies
provided in this Agreement, or by law or in equity, shall be cumulative, and no
one of them shall be exclusive of any other right or remedy, and the exercise of
any one or such rights or remedies shall not be deemed a waiver of, or an
election to exercise, any other such right or remedy.
7.10 Headings. The section and other headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement.
7.11 Notices. Any notice under this Agreement must be in writing, may be
telecopied provided that evidence of the transmission and receipt is created at
the time of transmission, sent by express 24-hour guaranteed courier, or
hand-delivered, or may be served by depositing the same in the United States
mail, addressed to the party to be notified, postage-prepaid and registered or
certified with a return receipt requested. The addresses of the parties for the
receipt of notice shall be as follows:
If to the Company: Bonso Electronics International, Inc.
If to Executive: Xxxxxxx So
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Each notice given by registered or certified mail shall be deemed delivered and
effective on the date of delivery as shown on the return receipt, and each
notice delivered in any other manner shall be deemed to be effective as of the
time of actual delivery thereof. Each party may change its address for notice by
giving notice thereof in the manner provided above.
7.12 Survival. Any provision of this Agreement which imposes an obligation
after termination or expiration of this Agreement shall survive the termination
or expiration of this Agreement and be binding on Executive and the Company.
7.13 Right of Set-Off. Upon termination or expiration of this Agreement,
the Company shall have the right to set-off against the amounts due Executive
hereunder the amount of any outstanding loan or advance from the Company to
Executive.
7.14 Effective Date. This Agreement shall become effective as of the date
set forth on page 1 when signed by Executive and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first set forth above.
XXXXXXX SO BONSO ELECTRONICS INTERNATIONAL, INC.
/s/ Xxxxxxx So By:/s/ Woo Xxxx Xxx
------------------------ ---------------------------------
Woo Xxxx Xxx, Director
By:/s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Xxxxx X. Xxxxxxxxx, Director
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