THIS AGREEMENT is made on the 1st day of October 2001
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) XXX XXX WING 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;
"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 heading 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
Pursuant to a service agreement dated 27th February 1999 between the
Company and the Executive (the "Service Agreement"), which expired on 30th
September 2001, the Company agrees to continue to employ the Executive and
the Executive agrees to serve the Company as an executive director, by
extending the Service Agreement for a further term of three years to
expire on 30th September 2004 subject to variation of the remuneration
under the Service Agreement which variation takes effect from 1st October
2001; and upon the terms and subject to the conditions hereinafter
appearing.
3. DURATION
The employment of the Executive by the Company shall commence from 1st
October 2001 for a term of three years. Subject to Clause 10, either party
may terminate this Agreement by giving not less than three months' written
notice or payment of salary in lieu thereof to the other party, such
notice to expire no earlier than on 30th September 2004.
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. With effect from 1st October, 2001, the remuneration of the Executive
shall be revised as follows:
(a) an annual salary of HK$5,000,000 payable in twelve installments or in such
manner as may be agreed between the Company and the Executive from time to
time no later than the first day of each calendar 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; and
(b) 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
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;
(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;
(d) the Company shall pay for the maintenance, petrol and parking cost
in respect of one car owned by the Executive;
(e) a monthly rental allowance of HK$100,000 or the provision of a
rent-free housing accommodation at the choice of the Executive to
the Executive. The Company shall pay for all rates, management fees
and other outgoings including water, electricity, gas and telephone
charges in respect of the premises occupied as residence by the
Executive; and
(f) the provision of an education allowance up to a maximum amount of
HK$300,000 per year, or such higher amount to be decided by the
Company, to reimburse the Executive against the tuition fees
incurred in respect of his dependant children under the age of 18.
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
time 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 of 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:
(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 endeavors to prevent the unauthorized 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 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;
(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 interest of the Company and any
member of the Group and reasonable in all the circumstances, if unforeseen
charges 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.
13.2 The Executive acknowledges and agree the Company may from time to time
transfer or second his services to any other member of the Group as part
of any reorganization 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
of fax number as the addressee has by five day's 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: 2362 3034
Attention: Board of Directors
To the Executive: Xxx Xxx Wing
Xxxx X, 00xx Xxxxx, Xxxxx X
Xxxxxxxx Xxxxx
Xx. 0 Ho Man 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 dispatched subject to receipt of
machine-printed confirmation of error-free dispatch.
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.
IN WITNESS WHEREOF the parties hereto have signed this document on the date
appearing at the head hereof.
SIGNED by Chan Yam Fai, Xxxx )
for and on behalf of )
HANG XXXX GOLD )
TECHNOLOGY LIMITED )
in the presence of: )
SIGNED by )
XXX XXX WING )
in the presence of: )
