Exhibit 10.7
Dated the ________________
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EMPLOYMENT AGREEMENT
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CONTENTS
PAGE
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CLAUSE
1. DEFINITIONS AND INTERPRETATION..................................... 1
2. EMPLOYMENT......................................................... 2
3. EXECUTIVE'S DUTIES AND SERVICES.................................... 2
4. REMUNERATION AND OTHER BENEFITS.................................... 3
5. EXPENSES........................................................... 4
6. LEAVE AND TRAVEL................................................... 4
7. TERMINATION........................................................ 5
8. RESTRAINT ON ACTIVITIES OF THE EXECUTIVE........................... 7
9. CONFIDENTIAL INFORMATION........................................... 10
10. INTELLECTUAL PROPERTY.............................................. 11
11. RESTRICTIONS REASONABLE............................................ 12
12. WAIVER............................................................. 12
13. FORMER SERVICE AGREEMENTS.......................................... 12
14. REPRESENTATIONS AND WARRANTIES..................................... 13
15. SEVERABILITY....................................................... 13
16. NOTICES............................................................ 13
17. LAW AND JURISDICTION............................................... 14
THIS AGREEMENT is made the _________ day of _________.
BETWEEN:
(1) CHINA GRENTECH CORPORATION LIMITED, a company incorporated in People's
Republic of China whose registered office is at Xxxxx X, 00X, Xxxxxxxx
Xxxxx, Caitian North Road, Futian District, Shenzhen, the People's Republic
of China (the COMPANY); and
(2) [Name] (the EXECUTIVE).
WHEREAS the Company wishes to employ the Executive and the Executive agrees to
be employed by the Company as [management position] in accordance with the terms
of this engagement.
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, the following
words shall have the following meanings:-
EMPLOYMENT means the Employment of the Executive under the terms herein;
ARTICLES means the Articles of Association of the Company as amended from time
to time;
BOARD means the board of directors from time to time of the Company or (as the
context may require) the majority of directors present and voting at any meeting
of the board of directors of the Company duly convened and held or a duly
authorized committee thereof;
BUSINESS means all the business and affairs carried out by the Company Group or
any company in the Company Group from time to time;
COMMENCEMENT DATE means [____], the date of commencement of the Employment;
CONFIDENTIAL INFORMATION means all information, know-how and records (in
whatever form held) in any way connected with the Business including (without
prejudice to the generality of the foregoing) without limitation all formulae,
designs, specifications, drawings, data, operations and testing procedures,
manuals and instructions and all customer and supplier lists, sales information,
business plans and forecasts and all technical or other expertise and all
computer software and all accounting and tax records, correspondence, orders and
enquiries that are confidential or not generally known;
COMPANY GROUP means the Company and all of its Subsidiaries;
COMPANY GROUP MEMBER means any company in the Company Group;
HONG KONG means the Hong Kong Special Administrative Region of the People's
Republic of China;
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INCAPACITY means any illness (whether mental or physical), injury or accident;
and
PRC means the People's Republic of China and for geographical purposes of this
Agreement, excludes Taiwan, Macau and Hong Kong.
1.2 References herein to CLAUSES are references to the Clauses of this
Agreement. The headings in this Agreement are inserted for convenience of
reference only and do not affect the interpretation of this Agreement.
1.3 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.
2. EMPLOYMENT
2.1 The Company agrees, from the Commencement Date, to employ the Executive and
the Executive agrees to be so employed and faithfully serve the Company as
[management position] (or such other position as the Company may from time to
time designate) subject to and upon the terms hereinafter set out.
2.2 Subject to the provisions for termination set out in Clause 9, the
Employment shall continue unless and until terminated by either the Company or
the Executive giving to the other not less than [three (3)/six (6)] months'
prior notice in writing to terminate the Employment.
2.3 The Executive represents and warrants that s/he is not bound by or subject
to any court order, agreement, arrangement or undertaking which in any way
restricts or prohibits him from entering into this Agreement or the Employment
nor from performing his/her duties hereunder.
3. EXECUTIVE'S DUTIES AND SERVICES
3.1 The Executive hereby undertakes with the Company that during the term of the
Employment s/he shall use his/her best endeavors to carry out his/her duties
hereunder and to protect, promote and act in the best interests of the Company
Group.
3.2 Without prejudice to the generality of Clause 3.1, the Executive in his/her
office as [management position] (or such other position as the Company may from
time to time designate) shall:-
(a) devote the whole of his/her attention, skill and time to the interests and
affairs to the Company Group in the discharge of his/her duties as
[management position] (or such other position as the Company may from time
to time designate) in relation to the Company Group, both during his/her
hours of work (being the normal business hours of the Company Group
together with such additional hours as the Executive may spend on the
performance of his/her duties) and at such other times as the Executive may
spend for the proper and efficient conduct of the Business (subject to
appropriate holidays and vacation time as provided in this Agreement);
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(b) in the discharge of such duties and in the exercise of such powers comply
with all and any lawful directions and instructions from time to time made
or given to him by the Board according to the best of his/her skills and
ability and comply with all resolutions and regulations from time to time
passed or made by the Board;
(c) in pursuance of his/her duties hereunder perform such services for any
company in the Company Group and (without further remuneration unless
otherwise agreed) accept such offices (including being appointed as
director thereof) in any company in the Company Group as the Board may from
time to time reasonably require; and
(d) faithfully and diligently perform such duties and exercise only such powers
as are consistent with his/her office in relation to the Company and/or any
company in the Company Group and use his/her best endeavors to promote the
interests of the Company Group.
3.3 The Executive shall at all times keep the Board promptly and fully informed
of the Executive's conduct of the Business or affairs of the Company Group and
give promptly to the Board (in writing if so requested) all such information as
the Board may reasonably require in relation to his/her conduct of the Business
insofar as such information is or ought to be within the knowledge of the
Executive and provide such written explanations as the Board may require in
connection therewith.
3.4 The Executive shall carry out his/her duties and exercise his/her powers
jointly with any director or executive as shall from time to time be appointed
by the Board to act jointly with the Executive and the Board may at any time
require the Executive to cease performing or exercising any of his/her duties or
powers under this Agreement.
3.5 The Executive shall work in any place in the PRC or any part of the world
which the Board may from time to time require for the proper performance and
exercise of his/her duties and powers under this Agreement.
4. REMUNERATION AND OTHER BENEFITS
4.1 In consideration for the performance of his/her duties hereunder, the
Executive shall be entitled to receive with effect from the Commencement Date
during the term of the Employment a salary at the rate of ___ per annum payable
by 12 monthly instalments, each such instalment being payable in arrears into an
account in the name of the Executive designated by the Executive to the Company
on the last business day of each calendar month provided that if the Employment
is terminated prior to the end of a calendar month, the Executive shall only be
entitled to a proportionate part of such salary in respect of the period of
Employment during the relevant month up to the date of termination. For the
avoidance of doubt, if the Executive also serves as a director on the Board, the
Executive shall not be entitled to any additional compensation for his/her
director's position; provided, however, that the Company may reimburse him/her
for any reasonable out-of-pocket expenses incurred in connection with
discharging his/her director's duties as provided in the relevant service
agreement for such directorship.
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4.2 Payment of such salary to the Executive referred to in Clause 4.1 shall be
made by the Company.
4.3 The Salary referred to in clause 4.1 shall be subject to review by the Board
on each anniversary of the Commencement Date.
4.4 The Executive shall continue to receive his/her salary during any period of
absence on grounds of medical or physical ill-health up to a maximum of 30 days
in any period of twelve (12) months or such number of days not more than that
prescribed by law (whichever is longer) provided that the Executive shall, if
required by the Company, supply the Company with medical certificates covering
the period of absence and/or undergo at the Company's expense a medical
examination by a doctor or hospital appointed by the Company.
4.5 The payment of tax, duties, social security and like payments arising out of
the Employment shall be dealt with by the parties to this Agreement in
accordance with the applicable laws and regulations. The Executive undertakes to
the Company promptly to discharge any payments which are payable by him pursuant
to the law as they fall due and to indemnify the Company against any liability
in respect thereof which may fall upon the Company as a result of his/her
failure to pay.
5. EXPENSES
The Executive shall be reimbursed all out-of-pocket business expenses (including
entertainment, traveling, telephone and hotel expenses) properly and reasonably
incurred by him in relation to the Business or in the discharge of his/her
duties under this Agreement, providing the Executive complies with directions of
the Board as may from time to time be made in relation to such expenses and such
expenses shall be evidenced in such manner as the Board may require.
6. LEAVE AND TRAVEL
The Executive shall be entitled to the public holidays and such other statutory
holidays as prescribed by law. The Executive should not be entitled to any other
paid holidays under this Agreement.
7. SHARE OPTIONS AND DEALINGS
The Executive shall comply where relevant with every rule of law and every
regulation applicable to the Company and its securities and every regulation
contained in the Articles or otherwise applicable to the Company in force in
relation to dealings in shares, debentures or other securities of the companies
in the Company Group and in relation to unpublished price-sensitive information
affecting the shares, debentures or other securities of any company in the
Company Group; provided, always, that in relation to overseas dealings the
Executive shall also comply with all laws of the state and all regulations of
the stock exchange, market or dealing system in which such dealings take place.
8. INCAPACITY
8.1 If the Executive is absent from work because of Incapacity such fact must be
reported by the Executive to the company secretary or an executive director of
the
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Company and, after three continuous days' absence, the Executive must provide,
for sickness allowance purposes, a medical practitioners' certificate(s) of
his/her Incapacity and its cause covering the whole of the Executive's period of
absence.
8.2 If the Executive is absent from work due to Incapacity and has complied with
the provisions of Clause 8.1, s/he will continue to be paid sickness allowance
in accordance with applicable laws or Clause 4.4 whichever is more favorable. If
the Executive's absence exceeds 15 consecutive days, the Company will be
entitled to appoint a temporary replacement to cover the Executive's absence.
8.3 The Executive will, whenever requested by the Board (in circumstances where
the Board has reasonable grounds to believe that the Executive may be suffering
from any Incapacity or that the Executive may not be fit to carry out his/her
duties), submit to examination by a medical practitioner selected and paid for
by the Company. The Executive hereby authorizes such medical practitioner to
disclose to and discuss with the Board any matters which, in the opinion of the
medical practitioner, might hinder or prevent the Executive (if during a period
of Incapacity) from returning to work for any period or (in other circumstances)
from properly performing his/her duties at any time.
9. TERMINATION
9.1 Without prejudice to the accrued rights (if any) or remedies of either party
under or pursuant to this Agreement, the Company shall be entitled to terminate
the Employment without any compensation to the Executive unless otherwise
required by the applicable laws and regulations:-
(a) by not less than three (3) months' notice in writing given at any time
while the Executive shall have been suffering from any Incapacity or
prevented by reason of ill health (whether physical or mental), injury or
accident from performing his/her duties hereunder for a period of or
periods aggregating at least ninety (90) days in the preceding twelve (12)
months; provided always that such termination shall comply with the
applicable laws and regulations; and further provided that if at any time
during the currency of a notice given pursuant to this Clause 9.1(a), the
Executive shall provide a medical certificate satisfactory to the Board to
the effect that s/he has fully recovered his/her physical and/or mental
health and that no recurrence of Incapacity can reasonably be anticipated
the Company may withdraw such notice; or
(b) by summary notice in writing with immediate effect if the Executive shall
at any time:-
(i) commit any act of gross or willful misconduct or any serious, willful,
grossly negligent or persistent breach of any of the provisions
contained in this Agreement;
(ii) commit any act of dishonesty, whether or not relating to the
Employment;
(iii) engage in any conduct which, in the reasonable opinion of the Board,
has caused or is likely to cause the Executive's continued employment
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to be detrimental to the interests of the Company Group and, where
such conduct is capable of remedy, fail to remedy such conduct within
thirty (30) days after written notice from the Board requiring him to
do so;
(iv) absent himself/herself from the meetings of the Board during a
continuous period of six (6) months, without special leave of absence
from the Board, and the Board passes a resolution that s/he has by
reason of such absence vacated his/her office;
(v) be otherwise prohibited by law from fulfilling his/her duties
(including any circumstances in which it may be unlawful for the
Company to employ the Executive) in connection with the Employment or
under this Agreement or be removed from office by a special resolution
of the shareholders of the Company in general meeting;
(vi) be convicted of any criminal offence (other than a criminal conviction
which in the reasonable opinion of the Board does not affect his/her
position in the Company);
(vii) without prejudice to Clause 9.1(a) above, refuse to carry out any
reasonable lawful order given to him by the Board in the course of
his/her employment or fail diligently to attend to his/her duties
hereunder;
(viii) without prejudice to Clause 9.1(b)(i) above, improperly divulge to
any unauthorized person any Confidential Information or any other
business secret or details of the organization, business or clientele
of the Company Group; and
(ix) be convicted of any offence or be identified as an insider dealer
under any statutory enactment or regulations relating to insider
dealing in force from time to time.
(c) by giving the Executive a summary notice in writing 30 days prior to the
termination if the Executive shall at any time become bankrupt or have a
receiving order made against him or suspend payment of his/her debts or
make any arrangement or composition with his/her creditors generally; or
(d) by written notice in accordance with the provisions of Clause 2.2.
9.2 On serving or receiving notice to terminate this Agreement or at any time
thereafter during the currency of such notice, the Company is, unless stipulated
otherwise in the applicable laws, entitled to pay the Executive his/her salary
(at the rate then payable under Clause 4.1 of this Agreement) together with
monetary compensation for loss of all other benefits and reimbursement of
expenses due to the Executive under this Agreement in lieu of notice.
9.3 At any time after notice (including summary notice) to terminate the
Employment has been served or received by the Company, the Executive shall:-
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(a) forthwith deliver to the Company all Confidential Information and all other
tangible items including, without limitation, computers, computer disks,
books, records, documents, papers, materials, credit cards, correspondence,
accounts, source code and other intellectual property, and other property
of or relating to the Company Group or the Business which may then be in
his/her possession or under his/her power or control and all copies thereof
or extracts therefrom made by or on behalf of the Executive shall be and
remain the property of the Company Group and shall forthwith be delivered
to the Company;
(b) forthwith delete all Confidential Information from any computer disks,
tapes or other re-useable material in the Executive's possession or control
and destroy all other documents and tangible items in the Executive's
possession or under the Executive's control which contain or refer to any
Confidential Information; and
(c) not at any time thereafter represent himself/herself to be an Executive or
connected with the Company Group in any way.
9.4 At any time after notice (including summary notice) to terminate or suspend
the Employment has been served or received by the Company, the Company may:-
(a) appoint a replacement to hold the same or similar job title as the
Executive and to carry out all or any of the Executive's duties instead of
the Executive; and/or
(b) require the Executive not, without the prior consent of the Board, to
engage in any contact (whether or not at the Executive's instigation) with
any customer, supplier, employee, Executive, officer or agent of any
company in the Company Group which touches and concerns any of the
Business; and/or
(c) require the Executive to remain in the employment of the Company, without
any obligation on the Company to provide any work to the Executive, and to
continue to be bound by the terms of this Agreement and may restrict the
Executive's access to the Company's premises and/or records.
10. RESTRAINT ON ACTIVITIES OF THE EXECUTIVE
10.1 The Executive undertakes and covenants that during his/her Employment s/he
will not directly or indirectly:
(a) be employed, engaged, concerned or interested in any other business or
undertaking (except as provided in Clause 8.4); or
(b) engage in any activity which the Board reasonably considers may be, or
become, harmful to the interests of the Company or of any Company
Group Member or which might reasonably be considered to interfere with
the performance of his/her duties under his/her Employment Agreement
with the Company.
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8.2 The Executive shall not make any investment in any other company which
competes with any Company Group Member in excess of 3% of the total issued
share capital of such company.
8.3 The Executive undertakes and covenants that s/he shall not, whether
directly or indirectly, on his/her own behalf or on behalf of or in
conjunction with any other person, firm, company or other entity:
(a) for the period of two years (subject to Clause 8.6) following the
Termination Date of his/her Employment Agreement, solicit or entice
away or endeavor to solicit or entice away from any Company Group
Member any person, firm, company or other entity who is, or was, in
the three years immediately prior to the Termination Date, a client of
any Company Group Member with whom the Executive had business dealings
during the course of his/her employment in that three year period.
Nothing in this Clause 8.5(a) shall prohibit the seeking or doing of
business not in direct or indirect competition with the business of
the Company Group;
(b) for the period of two years (subject to Clause 8.6) following the
Termination Date, solicit or entice away or endeavor to solicit or
entice away from any Company Group Member any person, firm, company or
other entity who is, or was, in the three years immediately prior to
the Termination Date, a prospective client of such Company Group
Member. For the purposes of this Clause 8.5(b) and Clause 8.5(d) the
term "prospective client" shall mean any person, firm, company or
other entity which was, in the three years immediately prior to the
Termination Date, being actively solicited or responded positively to
canvassing by any Company Group Member and with which solicitation the
Executive was personally involved during the course of his/her
employment in that three year period. Nothing in this Clause 8.5(b)
shall prohibit the seeking or doing of business not in direct or
indirect competition with the business of the Company Group;
(c) for the period of two years (subject to Clause 8.6) following the
Termination Date, have any business dealings with any person, firm,
company or other entity who is, or was, in the three years immediately
prior to the Termination Date, a client of any Company Group Member
with whom the Executive had business dealings during the course of
his/her employment in that three year period. Nothing in this Clause
8.5(c) shall prohibit the seeking or doing of business not in direct
or indirect competition with the business of the Company Group;
(d) for the period of two years (subject to Clause 8.6) following the
Termination Date, have any business dealings with any person, firm,
company or other entity who is, or was, in the three years immediately
prior to the Termination Date, a prospective client of any Company
Group Member with whom the Executive had business dealings during the
course of his/her employment in that three year period. Nothing in
this Clause 8.5(d) shall prohibit the seeking or doing of business not
in
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direct or indirect competition with the business of the Company Group;
(e) for the period of two years (subject to Clause 8.6) following the
Termination Date, solicit or entice away or endeavor to solicit or
entice away any individual who is employed or engaged by any Company
Group Member as a director or in a managerial, executive or technical
capacity and with whom the Executive had business dealings during the
course of his/her employment in the three year period immediately
prior to the Termination Date;
(f) for the period of two years (subject to Clause 8.6) following the
Termination Date, employ or engage, whether on an employed or
self-employed basis or in any other office or capacity, any individual
who is employed or engaged by any Company Group Member as a director
or in a managerial, executive or technical capacity and with whom the
Executive had business dealings during the course of his/her
employment in the three year period immediately prior to the
Termination Date; and
(g) for the period of two years (subject to Clause 8.6) following the
Termination Date, carry on, set up, be employed, engaged or interested
in a business anywhere in the PRC, including but not limited to
Competitors (as defined in the Memorandum and Articles of the
Company), which is or is about to be in competition with the business
of the Company Group as at the Termination Date. It is agreed that in
the event that any such company ceases to be in competition with the
Company Group this Clause 8.5(g) shall, with effect from that date,
cease to apply in respect of such company. The provisions of this
Clause 8.5(g) shall not, at any time following the Termination Date,
prevent the Executive from holding shares or other capital not
amounting to more than 3% of the total issued share capital of any
company whether listed on a regulated market or not and, in addition,
shall not prohibit the seeking or doing of business not in direct or
indirect competition with the business of the Company Group.
8.4 The period during which the restrictions referred to in Clauses 8.5(a) to
(g) inclusive hall apply following the Termination Date shall be reduced by
the amount of time during which, if at all, the Company suspends the
Executive under the provisions of his/her Employment Agreement.
8.5 The Executive agrees that if, during either the term of his/her employment
with the Company or the period of the restrictions set out in Clauses
8.5(a) to (g) inclusive s/he receives an offer of employment or engagement,
s/he will provide a copy of this Clause 8 to the offeror as soon as is
reasonably practicable after receiving the offer and will inform the
Investors of the identity of the offeror as soon as possible after the
offer is accepted.
8.6 The Executive undertakes and covenants that at no time after the
termination of his/her employment with the Company shall be directly or
indirectly represent himself/herself as being interested in or employed by
or in any way
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connected with any Company Group Member, other than as a former direct or
employee of a Company Group Member and (where applicable) as a shareholder
or former shareholder of the Company.
8.7 The Executive agrees that the restrictions imposed on him by this Clause 8
extend to any actions by the Executive:
(a) on his/her own account;
(b) on behalf of any firm, company or other person;
(c) whether alone or jointly with any other person; or
(d) as a director, manager, partner, shareholder, employee or consultant
of any other person.
8.8 The Executive agrees that, having regard to all the circumstances, the
restrictions in these Clauses 8 and 9 are reasonable and necessary but no
more than sufficient for the protection of each of the Investors and that
they do not bear harshly on him. The parties agree that:
(a) each restriction shall be read and construed independently of the
other restrictions so that if one or more are found to be void or
unenforceable as an unreasonable restraint of trade or for any other
reason the remaining restrictions shall not be affected; and
(b) if any restriction is found to be void but would be valid and
enforceable if some part of it were deleted, the restriction shall
apply with the deletions that are necessary to make it valid and
enforceable.
11. CONFIDENTIAL INFORMATION
11.1 The Executive shall not at any time during the currency of the Employment
or after the termination of the Employment without limit in point of time except
authorized or required by his/her duties:-
(a) use, take away, conceal or destroy any Confidential Information for any
purpose other than that of the Company Group; or
(b) divulge or communicate to any person any Confidential Information except to
those of the employees or officials of the Company Group whose province is
to know the same; or
(c) through any failure to exercise all due care and diligence cause any
unauthorized disclosure of any Confidential Information (including without
limitation):-
(i) relating to the dealings, organization, business, finance,
transactions or any other affairs of the Company Group or its clients
or customers; or
(ii) in respect of which any such company in the Company Group is bound by
an obligation of confidence to any third party; or
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(iii) relating to the working of any process or invention which is carried
on or used by any company in the Company Group or which s/he may
discover or make during his/her Employment; including anything which
by virtue of Clause 12 becomes the absolute property of the Company
Group,
but so that these restrictions shall cease to apply to any information or
knowledge which may (otherwise than through the default of the Executive)
become available to the public generally or otherwise required by law or
any applicable regulations to be disclosed.
11.2 Since the Executive may obtain in the course of the Employment by reason of
services rendered for or offices held in any other company in the Company Group
knowledge of the trade secrets or other confidential information of such
company, the Executive hereby agrees that s/he will at the request and cost of
the Company or such other company enter into a direct agreement or undertaking
with such company whereby s/he will accept restrictions corresponding to the
restrictions herein contained (or such of them as may be appropriate in the
circumstances) in relation to such products and services and such area and for
such period as such company may reasonably require for the protection of its
legitimate interests.
11.3 All notes, memoranda, records and writings made by the Executive in
relation to the Business or concerning any of its dealings or affairs or the
dealings or affairs of any clients or customers of the Company Group shall be
and remain the property of the Company Group and shall be handed over by him to
the Company (or to such other company in the Company Group as the Company may
direct) from time to time on demand and in any event upon his/her leaving the
service of the Company and the Executive shall not retain any copy thereof.
12. INTELLECTUAL PROPERTY
12.1 The parties foresee that the Executive has created and may create designs
or other intellectual property in the course of his/her duties hereunder and
agree that in this respect the Executive has a special responsibility to further
the interests of the Company and the Company Group.
12.2 Any invention, production, improvement or design made or process or
information discovered or copyright work or trade xxxx or trade name or get-up
source code or any other intellectual property created by the Executive during
the continuance of his/her Employment hereunder (whether before or after the
date hereof or whether capable of being patented or registered or not and
whether or not made or discovered in the course of his/her employment hereunder)
in conjunction with or in any way affecting or relating to the business of any
company in the Company Group or capable of being used or adapted for use therein
or in connection therewith shall forthwith be disclosed to the Company and shall
belong to and be the absolute property of such company in the Company Group as
the Company may direct.
12.3 The Executive if and whenever required to do by the Company shall at the
expense of a company in the Company Group apply or join with such company in
applying for letters patent or other protection or registration for any such
invention improvement design process information work trade xxxx name or get-up
source code
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or other intellectual property rights as aforesaid which belongs to such company
and shall at the expense of such company execute and do all instruments and
things necessary for vesting the said letters patent or other protection or
registration when obtained and all right title and interest to and in the same
in such company absolutely and as sole beneficial owner or in such other person
as the Company may specify.
12.4 The Executive hereby irrevocably appoints the Company to be his/her
attorney in his/her name and on his/her behalf to execute and do any such
instrument or thing and generally to use his/her name for the purpose of giving
to the Company the full benefit of this clause and in favor of any third party a
certificate in writing signed by any Executive or by the secretary of the
Company that any instrument or act falls within the authority hereby conferred
shall be conclusive evidence that such is the case.
13. RESTRICTIONS REASONABLE
While the restrictions contained in Clauses 10 and 11 (on which the Executive
has had the opportunity to take independent advice, as the Executive hereby
acknowledges) are considered by the parties to be reasonable in all the
circumstances, it is recognized that restrictions of the nature in question may
fail for technical and/or unforeseen reasons and accordingly it is hereby agreed
and declared that if any such restrictions shall be adjudged to be void as going
beyond what is reasonable in all the circumstances for the protection of the
interest of the Company or any other company in the Company Group but would not
be void if part of the wording thereof were deleted or the periods (if any)
thereof were reduced the said restriction shall apply with such modifications as
may be necessary to make it valid and effective.
14. WAIVER
14.1 Time is of the essence in relation to this Agreement but no failure or
delay on the part of either party to exercise any power, right or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise by either party of any power, right or remedy preclude any other or
further exercise of the remaining part thereof or the exercise of any other
available power, right or remedy by that xxxxx.
14.2 The remedies provided herein are cumulative and are not exclusive of any
remedies provided by law.
15. FORMER SERVICE AGREEMENTS
15.1 This Agreement shall be in substitution for and supersedes any previous
service agreement, arrangements or undertakings entered into between any company
in the Company Group and the Executive and any terns of employment previously in
force between any such company and the Executive, whether or not on a legal or
formal basis and the Executive now acknowledges that such agreements,
arrangement or undertakings are now terminated.
15.2 The Executive hereby acknowledges that s/he has no claim of any kind
against any company in the Company Group (other than in respect of accrued but
unpaid salary) and without prejudice to the generality of the foregoing s/he
further acknowledges that s/he has no claim for damages against any company in
the
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Company Group for the termination of any previous service agreements,
arrangements or undertakings for the sole purpose of entering into this
Agreement.
15.3 The terms of this Agreement may not be modified, altered, varied or added
to except by agreement in writing signed by the parties to this Agreement. None
of the rights or duties of the Executive under this Agreement may be assigned,
transferred or sub-contracted.
15.4 This Agreement embodies all of the terms and provisions of and relating to
the employment of the Executive by the Company.
16. REPRESENTATIONS AND WARRANTIES
The Executive represents and warrants to the Company, as follows:
16.1 that s/he has no criminal convictions;
16.2 that s/he has not been investigated by any regulatory or government
authority;
16.3 that s/he has the necessary work permits (if required) to work for the
Company, and
16.4 that s/he had the benefit of independent legal advice before signing this
Agreement.
17. SEVERABILITY
The provisions of this Agreement are severable and if any provision is held to
be invalid or unenforceable by any court of competent jurisdiction then such
invalidity or unenforceability shall not affect the remaining provisions of this
Agreement.
18. NOTICES
18.1 Any notice to be given hereunder to the Executive may be served by being
handed to him personally or by being sent by registered post to him at the
address provided at the head of this Agreement (save that where such address is
outside the PRC such notice may be sent by airmail) and any notice to be given
to the Company may be served by being left at or sent by registered post to its
place of business at Xxxxx X, 00X, Xxxxxxxx Xxxxx, Caitian North Road, Futian
District, Shenzhen, PRC for the time being.
18.2 Any notice served by registered post in the city to which is addressed
shall be deemed to have been served on the second day (excluding Sundays and
statutory holidays) following the date of posting and any notice served by
airmail shall be deemed to have been served on the seventh day (excluding
Sundays and statutory holidays) following the date of posting and in proving
such service it shall be sufficient proof that the notice was properly addressed
and posted as a prepaid letter by registered post or airmail (as the case may
be).
18.3 All notices or communications required to be served or given pursuant to
this Agreement shall be in writing.
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19. LAW AND JURISDICTION
19.1 This Agreement is governed by and shall be construed in all respects in
accordance with the laws of the Cayman Islands. Any disputes or claims relating
to this Contract or the interpretation, breach, termination or validity hereof
shall be resolved through friendly consultations between the Company and the
Employee, commencing upon written notice given by one party to the other of the
existence of such a claim or dispute. If consultation fails to resolve the
dispute or claim within 30 days of such notice being given, either party may
refer the dispute or claim to the Hong Kong International Arbitration Centre for
arbitration.
19.2 This Agreement shall be executed in English in one or more counterparts,
all of which will together constitute the same Agreement.
IN WITNESS whereof this Agreement has been executed as a deed and delivered by
the parties on the day and year first above written.
SIGNED by )
for and on behalf of )
CHINA GRENTECH CORPORATION )
LIMITED )
in the presence of: )
SIGNED BY )
[Name of the Executive] )
in the presence of: )
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