THIS AGREEMENT is made on the 1st day of March 1999
BETWEEN:
(1) HANG XXXX GOLD TECHNOLOGY LIMITED whose principal place of business is at
Xxxx 00-00, 0xx Xxxxx, Xxxxx X, Focal Industrial Centre, 21 Man Lok Street,
Hunghom, Kowloon, Hong Kong (the "Company"); and
(2) CHAN YAM FAI, XXXX of Xxxx X, 00xx Xxxxx, Xxxxx X, Xxxxxxxx Xxxxx, Xx.0 Ho
Man Tin Hill Road, Ho Man Tin, Kowloon, Hong Kong (the "Executive").
WHEREAS the Company has agreed to employ the Executive and the Executive has
agreed to serve the Company as an executive director on the following terms and
conditions.
WHEREBY IT IS AGREED AS FOLLOWS:-
1. INTERPRETATION
(A) In this Agreement, unless the context otherwise requires:-
"Board" means the board of directors of the Company from time to time;
"Business" means all the business and affairs carried out by the Group from
time to time and with which the Executive was concerned during the 12 month
period prior to the termination of the Employment;
"Companies Ordinance" means the Companies Ordinance (Cap. 32 of the Laws of
Hong Kong) from time to time amended or re-enacted;
"Group" means the Company and its subsidiaries from time to time (and the
expression "member of the Group" shall be construed accordingly);
"Group Employee" means any person who was employed by the Group for at
least three months prior to and on the Termination Date, and
(i) with whom the Executive has had personal contact or dealings in
performing his duties of employment; or
(ii) who has or has had material contact with customers or suppliers of the
Group in performing his or her duties of employment with the Group; or
(iii)who was a member of the management team of any company within the
Group.
"Hong Kong" means the Hong Kong Special Administrative region of the PRC;
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"HK$" means Hong Kong dollars;
"Listing Rules" means the Rules Governing the Listing of Securities on The
Stock Exchange of Hong Kong Limited;
"PRC" means the People's Republic of China;
"Stock Exchange" means The Stock Exchange of Hong Kong Limited;
"subsidiary" means a company:
(a) of which the Company controls the composition of the board of
directors; or
(b) of which the Company controls more than half of the voting power;
or
(c) of which the Company holds more than half of the issued share
capital (excluding any part of it which carries no right to
participate beyond a specified amount in a distribution of either
profits or capital); or
(d) which is a subsidiary of any company which is a subsidiary of the
Company; and
"Termination Date" means the date when the Executive's employment with the
Company terminates.
(B) References herein to Clauses and Schedules are references to the clauses
and 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.
(C) References herein to one gender include references to all other genders.
References herein to persons include references to individuals, firms,
companies, corporations and unincorporated bodies of persons and vice
versa. References herein to the singular number include references to the
plural and vice versa.
(D) Terms defined in Section 2 of the Companies Ordinance shall in this
Agreement have the meanings ascribed to them in that section.
2. EMPLOYMENT
----------
The Company will employ the Executive and the Executive hereby agrees to
serve the Company as an executive director upon the terms and subject to
the conditions hereinafter appearing.
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3. DURATION
--------
The employment of the Executive by the Company commenced on 1 October 1998
for an initial term of three years. Subject to Clause 10, either party may
terminate this Agreement at any time by giving not less than three months'
written notice or payment of salary in lieu thereof to the other party.
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4. EXECUTIVE'S DUTIES
------------------
The Executive shall, during the continuance of his employment hereunder:
(a) serve the Company as an executive director and, in such capacity,
perform such duties and exercise the powers from time to time assigned
to or vested in him by the Board;
(b) comply with and conform to any lawful instructions or directions from
time to time given or made by the Board, or with the authority of the
Board, and shall comply with the Company's rules, regulations,
policies and procedures from time to time in force;
(c) faithfully and diligently serve the Group and use his best endeavours
to promote the business and interests thereof;
(d) devote himself exclusively and diligently to the business and
interests of the Group and personally attend thereto at all times
during usual business hours and during such other times as the Company
may reasonably require except in case of incapacity through illness or
accident in which case he shall forthwith notify the Secretary of the
Company of such incapacity and shall furnish to the Board such
evidence thereof as it may require;
(e) keep the Board promptly and fully informed (in writing if so
requested) of his conduct of the business or affairs of the Group and
provide such explanations as the Board may require in connection
therewith;
(f) comply to the best of his ability with the Listing Rules from time to
time in force for so long as the Company is listed on the Stock
Exchange; and
(g) not demand or accept or permit any member of his family to demand or
accept from third parties any gifts, benefits or advantages offered or
given to the Executive or a member of his family by reason of his
employment with the Company.
5. REMUNERATION
------------
5.1 The remuneration of the Executive shall be:
(a) a monthly salary of HK$30,000 payable in arrears payable no later than
the last day of the month to which such salary relates, such salary to
include any sum receivable as director's fees or other remuneration
from any other member of the Group. This salary will be reviewed by
the Board on or around 1 April each year. Any annual increment of the
Executive's monthly salary under this Clause shall not exceed 15% of
the Executive's then existing monthly salary;
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(b) a guaranteed annual double pay equivalent to one month's salary, which
will be paid on or around the Chinese New Year period. If the
Executive joins or leaves (other than as a result of voluntary
resignation or summary dismissal) during the calendar year, this
double pay will be calculated on a pro rata basis provided the
Executive was employed for at least three months during the relevant
calendar year; and
(c) a discretionary bonus of such amounts (if any) at such times and
subject to such conditions as the Board may in its absolute discretion
decide. Such bonus, if payable, shall be calculated as a percentage of
the consolidated net profit after taxation and extraordinary items of
the Group of each financial year (as disclosed by the audited
consolidated accounts of the Group) (the "Consolidated Profit")
provided that the aggregate amount of bonus payable to all the
executive directors shall not exceed five per cent (5%) of the
Consolidated Profit for the relevant year during the term of this
Agreement. The Executive will not be eligible to be considered for
such a bonus if he has left the employment of the Company or is
serving out any notice given to him by the Company to terminate his
employment at the date when the Company's annual bonuses are declared.
5.2 The discretionary bonus referred to in Clause 5.1(c) shall be payable in
respect of each financial year within thirty (30) days after the issue of
the audited consolidated accounts of the Group for such financial year.
5.3 The Executive shall not vote or be counted in the quorum in respect of any
resolution regarding the amount of monthly salary, guaranteed double pay or
discretionary bonus payable to him.
5.4 The Company may arrange for the whole or any part of the Executive's
remuneration payable hereunder to be paid by one or more members of the
Group to which the Executive has provided or may provide services pursuant
to this Agreement.
6. OTHER BENEFITS
--------------
In addition to the foregoing remuneration and benefits, the Executive shall
also be entitled to the following, subject to determination by the Board as
to the appropriate level of cost of each item:
(a) the provision of medical, dental and optical insurance under such
insurance scheme as the Board may decide from time to time at the
expense of the Company for the benefit of the Executive, his spouse
and dependant children under the age of 18;
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(b) membership of the Group's provident fund subject to the terms and
conditions of such scheme from time to time in force;
(c) the shared use of a Company owned car, together with the other
executive directors of the Company, in respect of which the Company
shall pay all maintenance, petrol and parking costs; and
(d) the Company shall pay for all the maintenance, petrol and parking
costs in respect of one car owned by the Executive.
7. EXPENSES
--------
The Company shall reimburse the Executive (against receipts or such other
reasonable evidence of expenditure as the Board may require) 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 Group.
8. 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 him to the Company
or any of its subsidiaries including, but not limited to, any outstanding
loans, advances, the cost of repairing any damage to or loss of the Group's
property caused by him (and of recovering the same) and any other monies
owed by him to the Company or any of its subsidiaries.
9. LEAVE
------
9.1 The Executive shall be entitled after completion of each year of service
with the Company to twenty-one working days' annual leave (in addition to
public holidays) with full pay, which leave shall be taken at such time or
times as may be approved by the Board.
9.2 Unused annual leave may be carried forward from time to time.
10. TERMINATION
-----------
10.1 If at any time during the term of his employment hereunder the Executive
shall:
(a) be guilty of or commit any serious misconduct which in the absolute
opinion of the Board is in any way detrimental to the interests of any
member of the Group;
(b) be in breach of any material term of this Agreement;
(c) commit any act of bankruptcy or become insolvent or make any
arrangements or composition with his creditors generally;
(d) fail to pay his personal debts;
(e) be convicted of any criminal offence involving his integrity or
honesty; or
(f) refuse to carry out any reasonable lawful order given to him by the
Board in the course of his employment or fail diligently to attend to
his duties hereunder;
the Company may terminate the Executive's employment hereunder
forthwith without any notice or payment in lieu of notice and upon
such termination the Executive shall not be entitled to any payment or
other benefits whatsoever (other than in respect of unpaid salary and
unused annual leave actually accrued) for or in respect of the then
current year of service or to claim any compensation or damages for or
in respect of or by reason of such termination.
10.2 In the event of termination of the Executive's employment for whatever
reason, the Executive shall (if not already vacated from such office(s))
forthwith resign as a director of the Company and from all offices held by
him in any member of the Group.
10.3 Any delay or forbearance by the Company in exercising any right to
terminate this Agreement shall not constitute a waiver of such right.
11. NO RIGHT TO WORK
----------------
The Company shall be under no obligation to provide any work for the
Executive during any period of notice either given by the Company or the
Executive to terminate the Executive's employment under this Agreement. The
Company may at any time during the said period suspend the Executive from
his employment or exclude him from any premises of the Company. Provided
that during such period the Executive shall continue to receive salary and
all other contractual benefits provided by this Agreement.
12. EXECUTIVE'S UNDERTAKINGS
------------------------
12.1 The Executive shall not either during the continuance of his employment
hereunder or at any time thereafter:
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(a) divulge to any person whomsoever or to any body corporate or
unincorporate (except to those officers of the Group whose province it
is to know the same); or
(b) use for his own purposes or for any purposes other than those of the
Group and shall use his best endeavours to prevent the unauthorised
publication or disclosure of any trade secret or any confidential
information concerning the business or finances of any member of the
Group or any of its dealings, transactions or affairs or those of its
customers, suppliers, management and shareholders which may come to
his knowledge during or in the course of his employment including but
not limited to any such information relating to customers, customer
lists or requirements or ways of dealing with customers, pricing
structures, marketing and sales information, business plans or
dealings, employees or officers, financial information, accounts and
plans, designs, formulae, product lines, prototypes, services,
research activities, source codes and computer systems, software,
technical information, any document marked "Confidential" (or with a
similar expression), or any information which he has been told is
confidential or which he might reasonably expect the Group would
regard as confidential, or any information which has been given to the
Group in confidence by customers and other persons.
12.2 Forthwith upon the termination of the employment of the Executive
hereunder, and/or at any other time 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 and
concerning the business, finances or affairs of any member of the Group.
For the avoidance of doubt it is hereby declared that the property in all
such documents as aforesaid shall at all times be vested in the relevant
member of the Group.
12.3 The Executive shall not at any time during the continuance of his
employment hereunder or for a period of twelve months immediately following
the Termination Date whether on his own behalf or on behalf of any other
person or body corporate or unincorporate directly or indirectly:
(a) at any place within Hong Kong carry on or be concerned as a
shareholder, director, employee, partner, manager, consultant, adviser
or otherwise to or in any person, firm or company engaged in any
business in competition with the business(es) of the Company in the
faithful performance of which it could be reasonably anticipated that
the Executive would or would be required or expected to use or
disclose any confidential information or trade secrets of the Company
or any member of the Group provided that the provisions of this clause
shall only apply in respect of products or services with which the
Executive was personally concerned or for which the Executive was
responsible during the Executive's employment hereunder;
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(b) solicit or entice away from any member of the Group or deal with any
person or body corporate or unincorporate who now is or at the
Termination Date may have become a customer or supplier of any member
of the Group and with whom the Executive had personal contact or
dealings during the twelve months immediately preceding the
Termination Date;
(c) encourage or procure any person who is a Group Employee or director of
any member of the Group to leave the Group's employment, where that
person is a Group Employee or director of any member of the Group on
the Termination Date; or
(d) accept into employment or otherwise engage or use the services of any
person who is a Group Employee or director or consultant to any member
of the Group on the Termination Date, and who by reason thereof is or
may be likely to be in possession of any confidential information
relating to the Group's business or otherwise.
12.4 Each of the above restrictions constitutes an entirely separate and
independent restriction on the Executive.
12.5 While at the date of this Agreement the duration, extent and application of
each of the above restrictions are considered by the parties no greater
than is necessary for the protection of the interests of the Company and
any member of the Group and reasonable in all the circumstances, if
unforeseen changes occur or court judgements are delivered which would
render any of the provisions invalid or void, the parties declare that each
of the restrictions or any parts thereof being separate and severable shall
where appropriate be deleted or amended to the extent necessary to make
such restrictions effective and enforceable.
12.6 The Executive shall comply, where relevant, with every rule of law, every
rule and regulation of the Stock Exchange or any other stock exchange on
which he deals and every regulation, code of practice and the bye-laws of
the Company in force in relation to dealings in shares, debentures or other
securities of the companies in the Group and in relation to unpublished
price-sensitive information affecting the shares, debentures or other
securities of any company in the Group, including (without limitation) the
Model Code for Securities Transactions by Directors of Listed Companies set
out in Appendix 10 to the Listing Rules and the provisions of the
Securities (Insider Dealing) Ordinance, Provided always that in relation to
overseas dealings the Executive shall also comply with all laws of the
state and all rules and regulations of the stock exchange, market or
dealing system in which such dealings take place.
13. PLACE OF WORK/SECONDMENT
------------------------
13.1 The Executive's normal place of work shall be Xxxx 00-00, 0xx Xxxxx, Xxxxx
X, Focal Industrial Centre, 00 Xxx Xxx Xxxxxx, Xxxxxxx, Xxxxxxx, Xxxx Xxxx
but the Company reserves the right to change this to any place within or
outside Hong Kong. The Executive will be given at least one month's notice
of any such change. The Executive will be provided with such financial or
other relocation assistance as may be payable under any relevant policy
which the Group may operate at the relevant time.
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13.2 The executive acknowledges and agrees the Company may from time to time
transfer or second his services to any other member of the Group as part of
any reorganisation or otherwise and either permanently or temporarily.
14. MISCELLANEOUS
-------------
14.1 This Agreement shall be in substitution for any subsisting agreement or
arrangement (oral or otherwise) made between the Company and the Executive
which shall be deemed to have been terminated by mutual consent as from the
date on which the Executive's employment under this Agreement commences.
14.2 The expiration or termination of this Agreement howsoever arising shall not
operate to affect such of the provisions hereof as in accordance with their
terms are expressed to operate or have effect thereafter.
14.3 In the event of any variation of the remuneration payable to the Executive
hereunder being made by consent of the parties hereto such variation shall
not constitute a new agreement but (subject to any express agreement to the
contrary) the employment of the Executive hereunder shall continue subject
in all respects to the terms and conditions of this Agreement with such
variation as aforesaid.
14.4 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 days' prior written notice specified to
the other party):
To the Company: Hang Xxxx Gold Technology Limited
Xxxx 00-00, 0xx Xxxxx
Xxxxx X, Xxxxx Xxxxxxxxxx Xxxxxx
00 Xxx Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
Xxxx Xxxx
Fax Number: 0000 0000
Attention: Board of Directors
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To the Executive: Chan Yam Fai, Xxxx
Flat D, 10th Floor, Block B
Mountain Court
Xx.0 Xx Xxx Xxx Xxxx Xxxx
Xx Xxx Xxx
Xxxxxxx
Xxxx Xxxx
Fax Number: 0000 0000
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 despatched subject to receipt of machine-printed
confirmation of error-free despatch.
14.5 If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect, the legality, validity and
enforceability of the remaining provisions of this Agreement shall not be
affected or impaired thereby.
14.6 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.
14.7 This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and the parties hereto hereby irrevocably submit to the
non-exclusive jurisdiction of the Hong Kong courts.
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IN WITNESS WHEREOF the parties hereto have signed this document on the date
appearing at the head hereof.
SIGNED by )
for and on behalf of )
HANG XXXX GOLD )
TECHNOLOGY LIMITED )
in the presence of: )
SIGNED by )
CHAN YAM FAI, XXXX )
in the presence of: )
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