Dated XINHUA SPORTS & ENTERTAINMENT LIMITED and EXECUTIVE SERVICE AGREEMENT
DATE:
PARTIES:
| (1) | XINHUA SPORTS & ENTERTAINMENT LIMITED a company registered in the Cayman Islands whose office
is at 21/F On Hong Xxxxxxxxxx Xxxx, 000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxx (the “Company”); |
and
| (2) | an individual (the “Executive”). |
RECITALS:
The Company has agreed to employ the Executive and the Executive has agreed to serve the Company as
on the following terms and conditions.
TERMS AGREED:
| 1. | Definitions and Interpretation |
| 1.1 | In this Agreement where the context so admits the following words and expressions shall have
the following meanings: |
| “Associated Company” | means in relation to the Company, any subsidiary or
holding company of the Company, any subsidiary of
such holding company, and any company in which the
Company or any such holding company holds or controls
directly or indirectly not less than 20% of the
issued share capital; |
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| “CEO” | means the CEO of directors of the Company from time
to time; |
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| “HK$” | means Hong Kong dollars; |
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| “Hong Kong” | means the Hong Kong Special Administrative Region of
the People’s Republic of China. |
| 1.2 | Terms defined in Section 2 of the Companies Ordinance shall in this Agreement have the
meanings ascribed to them in that section. |
| 1.3 | All references in this Agreement and the Schedule attached hereto to the Company or any
Associated Companies shall include their successors in title or assigns. |
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| 1.4 | References herein to Clauses and the Schedules are references to the clauses and the
schedules of this Agreement which shall be deemed to form part of this Agreement. The
headings in this Agreement are inserted for convenience of reference only and do not affect
the interpretation hereof. |
| 2. | Employment |
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The Company shall employ the Executive and the Executive shall serve the Company as [ ] on and subject to the terms and conditions specified herein. |
| 3. | Commencement |
| 3.1 | The Executive agrees that he will remain in the employ of the Company or an Associated
Company for the period commencing the date of this Agreement and ending on the date that is
three years after the date of this Agreement, with a three year renewal at the option of the
Executive. The renewal will be at identical terms as this contract; PROVIDED, HOWEVER, that
nothing in this Clause 3 shall affect the termination provisions pursuant to clause 12. |
| 4. | Duties |
| 4.1 | Subject to Clause 6.1 below, the Executive shall be employed in the position of
in which capacity he shall devote such time, attention and skill
as is necessary in order to fulfill his duties hereunder, and shall at all times during such
employment act in the interests of the Company and its Associated Companies, and shall
faithfully and diligently perform such duties and exercise such powers consistent therewith as
may from time to time be assigned to or vested in him by the CEO or the Company. |
| 4.2 | The Executive shall fulfill the reasonable and lawful orders of the CEO, given by or with the
authority of the CEO provided such orders comply with recognizable pertinent ethical standards
in effect at such time, and shall comply with all the Company’s rules, regulations, policies
and procedures from time to time in force. |
| 4.3 | The Executive may be required in pursuance of his duties hereunder to perform services not
only for the Company but also for any Associated Company and, without further remuneration
(except as otherwise agreed), to accept any such office or position in any Associated Company
which is consistent with his position with the Company, as the CEO or the Company may from
time to time reasonably require, provided that such office and/or position does not inhibit
the Executive from performing his duties hereunder or entail services which are well beyond
his duties hereunder (in which event the parties shall mutually agree to acceptable additional
remuneration in connection with such position and/or office). |
| 4.4 | The Executive will keep the CEO promptly and fully informed (in writing if so requested) of
his conduct of the business or affairs of the Company and any
Associated Company and provide such explanations as the CEO may require in connection
therewith. |
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| 5. | Place of Work |
The Executive’s place of work shall be , or any location outside
as the Company and the Executive shall mutually agree. In the performance
of his duties hereunder, the Executive may be required to travel both throughout and outside
Asia.
| 6. | Exclusivity of Service/Conflicts |
| 6.1 | During the period of the Executive’s employment hereunder the Executive shall devote such of
his time and attention to his duties hereunder as is required to fulfill those duties and he
shall not (without the prior written consent of the CEO) directly or indirectly either on his
own account or on behalf of any other person, company, business entity or other organisation: |
| 6.1.1 | (i) engage in, or (ii) be concerned with, or (iii) provide services to,
(whether as an employee, officer, director, agent, partner, consultant or otherwise)
any other business in direct competition with the Company or any Associated Company; or |
6.1.2 accept any public office; PROVIDED THAT the Executive may not hold shares in a private company which is in direct competition with the Company; and |
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FURTHER PROVIDED THAT the Executive is entitled to devote his time and attention to other
business interests provided that such interests do not conflict or interfere with the duties
of the Executive as set out in this Agreement. |
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| 7. | Remuneration |
The remuneration of the Executive shall be:
| (a) | a monthly salary of US$ payable in arrears such salary to include any
sum receivable as other remuneration from any Associated Company, except as set forth
herein. |
| (b) | a discretionary bonus in cash or shares in such amounts (if any), at such times
and subject to such conditions as the Compensation Committee of the Company may in its
absolute discretion decide; |
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| 8. | Other Benefits |
| 8.1 | In addition to the foregoing remuneration and benefits, the Executive shall also be entitled
to the following: |
| (a) | the provision of medical, dental, travel and optical insurance under such
insurance scheme as the CEO may decide from time to time at the expense of the Company
for the benefit of the Executive, his spouse and dependent children under the age of
21; |
| (b) | participation in any share option scheme which may be adopted by the Company,
subject to the terms and conditions of such scheme from time to time in place; and |
| 8.2 | Details of the scheme(s) referred to in Clauses 8.1(a), (b) and (c) above can be obtained
from the HR Department. The Company reserves the right to substitute other scheme(s) for such
scheme(s) or amend the scale of benefits of such scheme(s) provided the level of benefits to
the Executive is not diminished. |
| 8.3 | The Company represents that it has taken all corporate action necessary in order to enter
into this Agreement and comply with the terms contained herein, including the payment of bonus
and issuance of shares in accordance with terms of this Agreement and the Compensation Share
Agreement. |
| 8.4 | The Company agrees that it shall obtain Officers and Directors liability insurance covering
the Executive from a reputable internationally recognized insurance carrier, at such levels as
is customary in the business conducted by the Company. |
| 9. | Expenses |
The Company shall reimburse the Executive (against receipts or other satisfactory evidence)
for all reasonable expenses properly incurred in the course of his employment hereunder or
in promoting or otherwise in connection with the business of the Company and as set forth in
this Agreement.
| 10. | Deductions |
The Company shall, to the extent permitted by s.32 of the Employment Ordinance of the Laws
of Hong Kong, be entitled to deduct from the Executive’s remuneration hereunder any monies
due from his to the Company or any Associated Company including, but not limited to, any
outstanding loans, advances, the cost of repairing any damage to or loss of the Company’s
property caused by his (and of recovering the same, only as adjudged by a court of competent
jurisdiction) and any other monies owed by his to the Company or any Associated Company.
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| 11. | Leave |
| 11.1 | The Executive shall be entitled to _____ working days’ per calendar year leave (in addition to
public holidays) with full pay, which leave shall be taken at such time or times which do not
interfere with the Executive carrying out his duties hereunder. |
| 11.2 | Unused annual leave may not be carried forward without the approval of CEO. Failure to take
holiday entitlement in the appropriate holiday year will lead to forfeiture of any accrued
holiday not taken without any right to payment in lieu thereof. |
| 12. | Termination |
| 12.1 | Notwithstanding the provisions of Sections 2 and 3, the Executive’s employment with the
Company may be earlier terminated as follows: |
| 12.1.1 | By action taken by the CEO or the Board, the Executive may be discharged for cause
(as hereinafter defined), effective as of such time as the CEO or the Board shall determine.
Upon discharge of the Executive pursuant to this Section 12.1.1, the Company shall have no
further obligation or duties to the Executive, except for payment of salary, issuance of all
Shares earned, benefits, expenses and any earned but unpaid bonus, through the effective
date of termination, and the Executive shall have no further obligations or duties to the
Company. “Cause” means (i) the Executive’s indictment or conviction of a felony or crime
involving moral turpitude or the Executive’s intentional commission of any other act or
omission involving dishonesty, fraud or malfeasance; (ii) the Executive’s gross failure to
perform duties of the office held by the Executive as reasonably directed by the CEO or
Board of Directors, if such failure is not cured within ninety (90) days after the Executive
receives written notice thereof; (iii) gross negligence or willful misconduct in the
performance of the Executive’s duties which materially injures the Company or its
reputation; or (iv) the Executive’s willful breach of any of the covenants of this
Agreement. |
| 12.1.2 | In the event of (i) the death of the Executive or (ii) by action of the CEO or the
Board and the inability of the Executive, by reason of physical or mental disability, to
continue substantially to perform his duties hereunder for a period of 180 consecutive days,
during which 180 day period salary and any other benefits hereunder shall not be suspended
or diminished. Upon any termination of the Executive’s employment under this Section
12.1.2, the Company be responsible for paying to the Executive (or the Executive’s estate if
applicable) a lump sum equal to the annual salary of the Executive in effect at the time of
termination plus shares or bonus as provided in Section 7 above, plus the benefits in
Section 8.1(a) for a period of one year following such termination. Provided that by way of
example, if either of the aforementioned events occur, the Executive shall be entitled to
such bonus enumerated in Clause 7 if at the end of such calendar year the Executive has
achieved the predetermined milestones for which a bonus is to be paid. |
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| 12.1.3 | In the event (i) that Executive’s employment with the Company is terminated by action
taken by the CEO or the Board of Directors without cause or (ii) there is a Change in
Control (as hereinafter defined), or (iii) the Company fails to pay such bonus due to
Executive in accordance with Section 7 in a timely fashion (in such
event the Executive shall have the right to terminate this Agreement upon written notice to
the Company, in which case the Company shall be responsible for the payments set forth
below), then the Company shall be responsible for payment to the Executive of the salary
amounts and such earned but unpaid bonus as provided in Section 7 above plus expenses
incurred by the Executive as per Section 9 above and the benefits in Section 8.1(a) all of
which shall be for a period through the life of this contract plus option extension
following such termination, and Executive shall have no further obligations or duties to the
Company . In the event such aforementioned termination and/or event occurs, the Company
shall pay to the Executive within five business days after such termination/event a lump sum
due the Executive whether due to Executive in cash or shares per section 7 above.
Additionally, all options or other types of shares granted but not vested shall become
immediately vested. Additionally, the Company or it successors shall be required at the
Executive’s option to purchase all of the Executives shares at $2.24 USD per share or market
price whichever is higher.
|
All amounts payable to the Executive pursuant to this Section 12.1.3 shall be paid to the
Executive in one lump-sum payment within five business days after such termination. Provided
that by way of example, if either of the aforementioned events occur, the Executive shall be
entitled to such compensation enumerated in Clause 7 if at the end of such calendar year the
Executive has achieved the predetermined milestones. |
| 12.2 | For purposes of this Agreement a “Change in Control” shall be deemed to occur, unless
previously consented to in writing by the Executive, in case the Company shall, consolidate or
merge with or into another corporation (whether or not the Company is the surviving
corporation or where there is a change in or distribution with respect to the stock of the
Company), or sell, transfer or otherwise dispose of a substantial portion, all or
substantially all of its shares, property, assets or business to another corporation or
investor and, pursuant to the terms of such reorganization, reclassification, merger,
consolidation or disposition of assets, shares of common stock of the successor or acquiring
corporation, or any cash, shares of stock or other securities or property of any nature
whatsoever (including warrants or other subscription or purchase rights) in addition to or in
lieu of common stock of the successor or acquiring corporation. In case of any such
reorganization, reclassification, merger, consolidation or disposition of assets, the
successor or acquiring corporation (if other than the Company) shall expressly assume the due
and punctual observance and performance of each and every covenant and condition of this
Agreement to be performed and observed by the Company and all the obligations hereunder. |
| 12.3 | Forthwith upon the termination of the employment of the Executive hereunder, provided the
parties are not involved in a dispute over such materials, if the Company shall so request,
the Executive shall deliver to the Company all documents (including correspondence, lists of
customers, notes, memoranda, plans, drawings and other documents of whatsoever nature), models
or samples made or compiled by or delivered to the Executive during his employment hereunder,
in connection with his duties hereunder, and concerning the business, finances or affairs of
the Company or any Associated Company. For the avoidance of doubt it is hereby declared that
the property in all such documents as aforesaid shall at tall times be vested in the relevant
Associated Company. |
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| 12.4 | The Executive acknowledges that the Company may, during all or any part of any period of
notice whether given by the Company or the Executive to terminate the Executive’s employment
under this Agreement, require the Executive not to attend work and/or not to undertake all or
any of his duties and/or exclude his from any premises of the Company, provided that for the
avoidance of doubt during such period the Executive shall continue to receive salary and other
contractual benefits provided by this Agreement. |
| 12.5 | The Executive agrees that he will not at any time after the termination of the Employment
represent himself as still having any connection with the Company or any Associated Company,
save as a former employee for the purpose of communicating with prospective employers or
complying with any applicable statutory requirements. |
| 13. | [Intentionally Omitted] |
| 14. | Reasonableness of Restrictions |
The Executive recognises that, whilst performing his duties for the Company, he will have
access to and come into contact with trade secrets and confidential information belonging to
the Company or to Associated Companies and will obtain personal knowledge of and influence
over its or their customers and/or employees. The Executive therefore agrees that the
restrictions contained or referred to in Clauses 15 and 16 and Schedule 1 are reasonable and
necessary to protect the legitimate business interests of the Company and the Associated
Companies both during and after the termination of his employment.
| 15. | Confidentiality |
| 15.1 | The Executive shall neither during the Employment (except in the proper performance of his
duties) nor one year after the termination thereof by the Company for cause (as defined above)
or termination by the Executive, directly or indirectly |
| 15.1.1 | use for his own purposes or those of any other person, company, business entity or
other organisation whatsoever; or |
| 15.1.2 | disclose to any person, company, business entity or other organisation whatsoever. |
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any trade secrets or confidential information belonging to the Company or any Associated
Company including but not limited to any such information relating to customers, customer
lists or requirements, price lists or pricing structures, sales and marketing information,
business plans or dealings, employees or officers, source codes and computer systems,
software, financial information and plans, designs,
formulae, prototypes, product lines, services, research activities, which are expressly
proprietary to the Company or any Associated Company and not in the knowledge of the
Executive prior to the date of this Agreement, any document marked ‘Confidential’ (or with a
similar expression), or any information which the Executive has been told is confidential or
which he might reasonably expect the Company would regard as confidential, or any
information which has been given to the Company or any Associated Company in confidence by
customers, suppliers or other persons. |
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| 15.2 | The obligations contained in Clause 15.1 shall cease to apply to any information or knowledge
which may subsequently come into the public domain other than by way of unauthorised
disclosure, or any such information which is the subject of a lawful court order then in
effect. |
| 16. | Copyright, Inventions and Patents |
| 16.1 | The Executive will promptly disclose to the Company and to no one else all copyright works or
designs originated, conceived, written or made by him alone or with others in the course of
his employment (except only those works originated, conceived, written or made by him wholly
outside his normal working hours and which are wholly unconnected with his employment). |
| 16.2 | All records, documents, papers (including copies and summaries thereof) and other copyright
protected works made or acquired by him in the course of his employment shall, together with
all the worldwide copyright and design rights in all such works, be and at all times remain
the absolute property of the Company. |
| 16.3 | The Executive hereby irrevocably and unconditionally waives in favour of the Company all
rights granted by the Copyright Ordinance 1997 in connection with his authorship of any
copyright works in the course of his employment with the Company, including without limitation
any moral rights and any right to claim an additional payment with respect to use or
exploitation of those works. |
| 16.4 | The Executives agree that his compensation in this Agreement are full compensation for his
services and all present and future uses of copyright works made by him in the course of his
employment. |
| 16.5 | If, at any time during the Executive’s employment under this Agreement, he (whether alone or
with any other person or persons) shall make any invention which relates directly to the
business of the Company or any Associated Company or was made or acquired in course of his
employment, he will promptly disclose to the Company and no-one else full details, including
drawings and models, of such invention. |
| 16.6 | If the Executive makes any inventions that do not belong to the Company under the Patents
Ordinance 1997, he agrees that he will forthwith agree that the Company shall have the first
right to exclusively license such inventions. The Company will pay to the Executive such
compensation for the license as the Executive and the Company agree, with such compensation
being in lines with the standard in such industry. If the parties do not agree then the
Executive shall be entitled to license such invention to other parties. |
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| 16.7 | The Executive will, at the request and expense of the Company both during and after the
termination of his employment under this Agreement, do all things necessary or desirable to
perfect the rights of the Company under this Clause 16, provided no bona fide dispute exists. |
| 17. | Post-Termination Obligations |
| 17.1 | The Executive agrees that he will observe the post-termination obligations set out in
Schedule 1 for a period of one year. |
| 18. | [Intentionally Omitted] |
| 19. | Warranty |
The Executive represents and warrants that he is not prevented by any agreement,
arrangement, contract, understanding, court order or otherwise, which in any way directly or
indirectly restricts or prohibits him from fully performing the duties of his employment
hereunder, or any of them, in accordance with the terms and conditions of this Agreement.
| 20. | Indemnification |
The Company shall indemnify and hold harmless the Executive against any and all expenses
reasonably incurred by him in connection with or arising out of (a) the defense of any
action, suit or proceeding in which he is a party, or (b) any claim asserted or threatened
against him, in either case by reason of or relating to his being or having been an
employee, officer or director of the Company, provided the Executive has acted in the best
interests of the Company and has not acted in bad faith, whether or not he continues to be
such an employee, officer or director at the time of incurring such expenses, except insofar
as such indemnification is prohibited by law. Such expenses shall include, without
limitation, the fees and disbursements of attorneys, amounts of judgments and amounts of any
settlements. Such amounts do not need to be agreed to in advance by the Company. The
foregoing indemnification obligation is independent of any similar obligation provided in
the Company’s organization documents or Articles of Association, and to matters attributable
to his employment hereunder, without regard to when asserted. No indemnification shall be
available to the Executive in the event of actions by Executive which are in violation of
this Agreement, however, in the event of actions by Executives which are in violation of
this Agreement, however, in the event of the Company terminates the Executives, the Company
shall pay for Executive’s legal representation in any settlement discussions. Additionally,
in the event of any disputes, the Company shall pay all costs of Executives separate
counsel, whether or not the Company deems those expenses reasonable.
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| 21. | Notices |
| 21.1 | Each notice, demand or other communication given or made under this Agreement shall be in
writing and delivered or sent to the relevant party at its address or fax number set out below
(or such other address or fax number as the addressee has by five business days’ prior written
notice specified to the other party): |
| To the Company: | Xinhua Sports & Entertainment Limited | |||||
| Fax number: | (00-00) 0000 0000 | |||||
| Attention: | CEO | |||||
| To the Executive: | ||||||
| 21.2 | Any notice, demand or other communication so addressed to the relevant party shall be deemed
to have been delivered (a) if given or made by letter, when actually delivered to the relevant
address; and (b) if given or made by fax, when dispatched subject to receipt of
machine-printed confirmation of error-free dispatch. |
| 21.3 | Any notice to be given hereunder may be delivered (a) in the case of the Company by first
class post addressed to its Registered Office or via facsimile, and (b) in the case of the
Executive, either to him personally or by first class postage to his last known address. |
| 22. | Miscellaneous |
| 22.1 | The various provisions and sub-provisions of this Agreement and the Schedules are severable
and if any provision or sub-provision is held to be unenforceable by any court of competent
jurisdiction then such unenforceability shall not affect the enforceability of the remaining
provisions or sub-provisions in this Agreement or the Schedules. |
| 22.2 | The benefit of each agreement and obligation of the Executive under Clause 15 and Schedule 1
may be assigned to and enforced by all successors and assigns for the time being of the
Company and each Associated Company and such agreements and obligations shall operate and
remain binding notwithstanding the termination of this Agreement. |
| 22.3 | This Agreement cancels and is in substitution for all previous letters of engagement,
agreements and arrangements (whether oral or in writing) relating to the subject-matter hereof
between the Company and the Executive all of which shall be deemed to have been terminated by
mutual consent. This Agreement constitutes the entire terms and conditions of the Executive’s
employment and no waiver or modification thereof shall be valid unless in writing, signed by
the parties and only to the extent therein set forth. |
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| 22.4 | No failure or delay by the Company in exercising any right, power or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the
same preclude any further exercise thereof or the exercise of any other right, power or
remedy. Without limiting the foregoing, no waiver by the Company of any breach by the
Executive of any provision in this Agreement shall be deemed to be a waiver of any subsequent
breach of that or any other provision in this Agreement. |
| 22.5 |
SIGNED by the parties on the date first above written.
For and on behalf of
XINHUA SPORTS & ENTERTAINMENT LIMITED
in the presence of:
SIGNED SEALED AND DELIVERED
AS A DEED by
AS A DEED by
in the presence of:
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Schedule 1
Post-Termination Restrictions
| 1. | Non-Competition |
The Executive hereby agrees that he shall not (without the written consent of the CEO) for
the Relevant Period within the Prohibited Area and whether on his own behalf or in
conjunction with or on behalf of any other person, firm, company or other organisation, (and
whether as an employee, director, principal, agent, consultant or in any other capacity
whatsoever,) in competition with the Company directly or indirectly (i) be employed or
engaged in, or (ii) perform services in respect of, or (iii) be otherwise concerned with:
| 1.1 | the research into, development, manufacture, supply or marketing of any product which is of
the same or similar type to any product researched, or developed, or manufactured, or
supplied, or marketed by the Company during the 12 months immediately preceding the
Termination Date; |
| 1.2 | the development or provision of any services (including but not limited to technical and
product support, or consultancy or customer services) which are of the same or similar type to
any services provided by, or known by the Executive to be in development by, the Company
during the 12 months immediately preceding the Termination Date; |
| 2. | Non-Solicitation of Customers |
The Executive hereby agrees that he shall not for the Relevant Period whether on his own
behalf or in conjunction with or on behalf of any person, company, business entity or other
organisation (and whether as an employee, director, principal, agent, consultant or in any
other capacity whatsoever), directly or indirectly (i) solicit or, (ii) assist in
soliciting, or (iii) accept, or (iv) facilitate the acceptance of, or (v) deal with, in
competition with the Company, the custom or business of any Customer or Prospective
Customer.
| 3. | Non-Solicitation of Employees |
The Executive hereby agrees that he will not for the Relevant Period either on his own
behalf or in conjunction with or on behalf of any other person, company, business entity, or
other organization (and whether as an employee, principal, agent, consultant or in any other
capacity whatsoever), directly or indirectly:-
| 3.1 | (i) induce, or (ii) solicit, or (iii) entice or (iv) procure, any person who is a Company
Employee to leave the Company’s or any Associated Company’s employment (as applicable) where
that person is a Company Employee on the Termination Date or during the Relevant Period; |
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| 3.2 | be personally involved to a material extent in (i) accepting into employment or (ii)
otherwise engaging or using the services of, any person who is a Company Employee on the
Termination Date. |
| 4. | Interference with Suppliers/Joint Venture Partners/Company Employees |
The Executive hereby agrees that he shall not (i) for the Relevant Period, and (ii) in
relation to any contract or arrangement which the Company has with any joint venture
partner, Company Employee, or Supplier for the exclusive supply of goods or services to the
Company and/or to its Associated Companies, for the duration of such contract or
arrangement, whether on his own behalf or in conjunction with or on behalf of any person,
company, business entity or other organization, (and whether as an employee, director,
agent, principal, consultant or in any other capacity whatsoever), directly or indirectly:
| 4.1 | interfere with the supply of goods or services to the Company from any Supplier, Company
Employee, or joint venture partner; |
| 4.2 | induce any Company Employee, joint venture partner, or Supplier of goods or services to the
Company to cease or decline to supply such goods or services in the future. |
| 5. | Associated Companies |
| 5.1 | Paragraphs 1, 2, 3, 4, and 6 in this Schedule 1 shall apply as though references to the
“Associated Company” were substituted for references to the “Company”. The obligations
undertaken by the Executive pursuant to this Schedule shall, with respect to each Associated
Company, constitute a separate and distinct covenant and the invalidity or unenforceability of
any such covenant shall not affect the validity or enforceability of the covenants in favour
of the Company or any other Associated Company. |
| 5.2 | In relation to each Associated Company referred to in paragraphs 5.1 above, the Company
contracts as trustee and agent for the benefit of each such Associated Company. The Executive
agrees that, if required to do so by the Company, he will enter into covenants in the same
terms as those set out in paragraphs 1, 2, 3, 4, and 6 hereof directly with all or any of
such Associated Companies, mutatis mutandis. If the Executive fails, within seven
business days of receiving such a request from the Company, to sign the necessary documents to
give effect to the foregoing, the Company shall be entitled, and is hereby irrevocably and
unconditionally authorised by the Executive, to execute all such documents as are required to
give effect to the foregoing, on his behalf. |
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| 6. | Definitions |
For the purposes of this Schedule, the following words and expressions shall have the
meanings set out below:
| 6.1 | “Associated Company”, “CEO”, and “Company” shall have the meanings set out in the Agreement
attached hereto, and shall include their successors in title and assigns (as applicable). |
| 6.2 | “Company Employee” means any person who was employed by (i) the Company or (ii) any
Associated Company, for at least one month during Executive’s employment with the Company or
during the Relevant Period. |
| 6.3 | “Customer” shall mean any person, firm, company or other organisation whatsoever to whom the
Company has supplied goods or services. |
|
| 6.4 | “Prohibited Area” means: |
| 6.4.1 | |||
| 6.4.2 | any other country in the world where, on the Termination Date, the Company
develops, sells, supplies, manufactures or researches its products or services or where
the Company is intending within 3 months following the Termination Date to develop,
sell, supply or manufacture its products or services and in respect of which
the Executive has been responsible (whether alone or jointly with others), concerned or
active on behalf of the Company during any part of the 12 months immediately preceding
the Termination Date. |
| 6.5 | “Prospective Customer” shall mean any person, firm, company or other organisation with whom
the Company has had any material negotiations or material discussions regarding the possible
supply of goods or services by the Company. |
| 6.6 | The “Relevant Period” shall mean, solely in the event of termination by the Company of the
Executive with cause (as defined in the Agreement) the 12 months immediately following the
Termination Date. PROVIDED that the Relevant Period shall be the Termination Date in the
event of termination of the Executive Services Agreement for any other reason whatsoever. |
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| 6.7 | “Supplier” means any person, company, business entity or other organisation whatsoever who: |
| 6.7.1 | has supplied goods or services to the Company during any part of the 12 months
immediately preceding the Termination Date; or |
| 6.7.2 | has agreed prior to the Termination Date to supply goods or services to the
Company to commence at any time in the 12 months following the Termination Date; or |
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| 6.7.3 | as at the Termination Date, supplies goods or services to the Company under a
contract or arrangement between that Supplier and the Company. |
| 6.8 | “Termination Date” shall mean the date upon which the Executive’s employment with the Company
terminates. |
SIGNED by the parties on the date first above written.
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