AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT 4(c)(2)
AMENDED
AND RESTATED
This
Amended and Restated Employment Agreement (the “Agreement”),
dated as of March 14, 2005, is between Zindart Limited, a corporation organized
under the laws of Hong Kong (the “Company”),
and Xxxxx X.X. Xxxxxxxx, a natural person (“Employee”).
Whereas,
the Company and Employee are parties to an Employment Agreement dated
October 1, 2000 (the “Employment
Agreement”);
Whereas,
the Company and Employee are parties to a separation and consulting agreement
dated August 26, 2004 (the “Separation
and Consulting Agreement”);
Whereas,
Employee remains an employee of the Company; and
Whereas,
the Company and Employee seek to amend and restate the Employment Agreement
as
provided herein.
Now,
Therefore,
in consideration of the premises and mutual convenants and agreements contained
herein, and intending to be legally bound, the parties hereto hereby agree
that
the Employment Agreement shall be amended and restated as follows:
Section
1. Employment.
The
Company hereby continues to employ Employee, and Employee hereby accepts
such
continued employment, upon the terms and subject to the conditions set forth
herein.
Section
2. Duties.
(a) Position.
Employee
shall be employed as Executive Chairman of the Company. Employee shall have
such
responsibilities and duties as are determined by the Company’s Board of
Directors (the “Board”),
consistent with his position, and as described in Section 2(b).
(b) Responsibilities.
Employee’s responsibilities shall include, without limitation:
(i) Continuing
to implement the strategy he initiated in 2001 to make Zindart into a global
marketing company of collectibles, toys and other product lines;
(ii) Supporting
Corgi Classics’ aggressive marketing and product development program to
penetrate mass-market channels and to capture more revenues outside the United
Kingdom; and
(iii) Assisting
current board members in identifying, evaluating and recruiting new members
of
the Board closely attuned to the interests of the Company’s
investors.
1.
(c) Board
Membership. During
Employee’s employment hereunder, the Company shall use its best efforts to cause
Employee to continue to be a member of the Board, with all rights and privileges
attendant thereto. Employee agrees to resign immediately from the Board upon
his
cessation of employment with the Company for any reason.
(d) Obligations.
(i) Except
as
otherwise provided herein, Employee agrees to devote his full working time,
attention and energies to the performance of his duties for the
Company.
(ii) It
shall
not be a violation of this Agreement for Employee, with the Board’s consent, to
(a) serve on corporate, civic or charitable boards or committees, (b) deliver
lectures, fulfill speaking engagements or teach at educational institutions,
or
(c) manage personal investments, so long as such activities do not significantly
interfere with the performance of Employee’s responsibilities to the Company in
accordance with this Agreement. It is expressly understood and agreed that
to
the extent that the such activities have been conducted by Employee prior
to
Employee’s commencement of employment with the Company, the continued conduct of
such activities (or the conduct of activities similar in nature and scope
thereto) shall not thereafter be deemed to interfere with the performance
of
Employee’s responsibilities to the Company. Employee hereby represents and
warrants to the Company that Employee’s current engagements in and commitments
to the activities described in the previous sentence do not and shall not
interfere with Employee’s ability to comply with Sections 2(a) and (b)
above.
(iii) Notwithstanding
any other provision of this Agreement, Employee shall have the right to make
a
written request to the Board in advance for a written statement that a proposed
business, position or activity is not in violation of this Agreement, which
determination the Board shall make in its sole discretion. If Employee receives
such statement or, if within sixty (60) days of making the request, he receives
no reply, he may assume that the business, position or activity is not competing
or otherwise in violation of this Agreement, and he may proceed with such
business, position or activity without such business, position or activity
being
considered to be violating any provision of this Agreement. However, if
thereafter, the Board determines in its sole discretion that Employee’s conduct
of such business, position or activity is in violation of this Agreement,
it may
notify him in writing of such determination and Employee shall cease such
business, position or activity within sixty (60) days of receipt of such
notice.
(e) Location.
Employee’s
primary duties shall be performed, among other places, primarily in Hong
Kong
and the United Kingdom. Employee acknowledges and agrees that Employee may
be
required to undertake a reasonable amount of travel in connection with the
fulfillment of his duties to the Company hereunder.
Section
3. Term.
Employee’s continued employment shall be for no specific term or duration, and,
subject to Section 6(a) below, may be terminated by the Company or by Employee
on six (6) months’ written notice. The Company may also immediately (or
thereafter) terminate Employee’s employment and provide Employee with his Base
Salary (as defined below) payable during said notice period, in lieu of
providing notice or upon receipt of notice from Employee, which Base Salary
payment shall be in addition to severance, if any, due pursuant to Section
7(b)
below.
2.
Section
4. Compensation
And Benefits.
Until
the
termination of the Employee’s employment hereunder, in consideration for the
services of Employee, the Company shall compensate Employee as follows:
(a) Base
Salary. The
Company shall pay Employee, in accordance with its then-current payroll
practices and schedule, a base salary (“Base
Salary”)
in the
amount of US$400,000, less required withholdings and deductions.
(b) Bonus.
Employee
is eligible to receive bonus compensation in addition to his Base Salary.
The
Board, in its sole discretion, shall determine whether to authorize payment,
and
the amount and payment date, of any such bonus.
(c) Vacation.
Employee
shall be entitled to twenty-five (25) days of paid vacation each year of
employment, which shall accrue in equal amounts on the last day of each fiscal
quarter. Employee’s total accrual of unused vacation days shall not exceed forty
(40) days.
(d) Insurance,
Etc. The
Company shall provide accident, disability, life and health insurance (the
“Benefits”)
at its
expense to Employee and his spouse, under group accident, travel, disability,
life and health insurance plans (if any) maintained by the Company for its
full-time, salaried, senior officer level employees (pursuant to the terms
and
conditions of such plans) as such employment benefits are modified from time
to
time by the Board for all full-time, salaried, senior officer level executives.
The amount and extent of such coverage shall be subject to the discretion
of the
Board. The Company will also provide Employee with term life insurance with
a
death benefit of US$2,000,000.
(e) Grant
of Options.
At the
sole discretion of the Board, Employee may from time to time be granted
additional options to purchase American Depositary Shares of the
Company.
(f) Indemnification.
Employee,
in connection with his employment and his service as an officer and/or director
of the Company or any of its subsidiaries or other Affiliates, shall be
indemnified under the laws of the jurisdiction in which each of the relevant
entities is incorporated to the same extent as other senior executives of
the
Company are so indemnified. For the purpose of this Agreement, “Affiliate” means
any person that, directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, the person
specified. At all times during Employee’s employment, the Company shall maintain
directors’ and officers’ liability insurance coverage covering
Employee.
Section
5. Expenses.
(a) The
Company shall reimburse Employee for all reasonable business expenses in
accordance with the Company’s policies, including, without limitation,
telecommunications, travel, and entertainment expenses incurred by Employee
in
connection with the business of the Company, upon the presentation by Employee
of appropriate documentation. Air travel by Employee shall be on a Business
Class basis or, where approved by the Board, reasonably necessary or reasonably
appropriate, First Class. Employee shall furnish documentation concerning
such
expenses to the Company in a manner and form as required by the
Company.
3.
(b) The
Company agrees to provide to Employee at its sole expense:
(i) A
luxury
class automobile and all reasonable applicable insurance, maintenance and
other
operating costs thereof, or reimbursement to Employee of related costs, provided
that the lease payments on such automobile payable or reimbursable by the
Company hereunder shall not exceed US$1,250 per month in the
aggregate.
(ii) A
reserved parking place to the extent practicable, provided that the Company
shall reimburse to Employee his parking expenses if the Company is unable
to
provide such parking place.
(iii) An
annual
physical examination for Employee and his spouse by a physician chosen by
the
Company.
(iv) All
membership fees in any professional societies, associations or bodies
appropriate to Employee’s position.
(c) The
Company agrees to reimburse to Employee the reasonable professional fees
and
expenses of legal counsel incurred by Employee in connection with the
negotiation and drafting of this Agreement, not in excess of
US$3,000.
Section
6. Termination.
Employee’s employment shall continue until terminated pursuant to Section 3
above, except if the employment of Employee shall earlier terminate as
follows:
(a) Termination
for Cause.
Notwithstanding Section 3 above, and subject to any applicable notice and
cure
period provided below, the Company may terminate Employee’s employment
immediately for “Cause.” For purposes of this Agreement, the term “Cause”
shall
mean any one or more of the following, as determined by the Board (excluding
any
vote of Employee):
(i) Employee
shall have committed an act of misappropriation, embezzlement, fraud, or
other
similar intentional misconduct with respect to the Company’s business; or
(ii) Employee
shall have been convicted by a court of competent jurisdiction of, or have
pleaded guilty or nolo contendere to, any felony, or any misdemeanor involving
moral turpitude, either of which materially affects the ability of Employee
to
perform his duties, obligations and responsibilities as set forth herein
or the
good name, goodwill or reputation of the Company; or
(iii) Employee
shall have materially breached any one or more provisions of this Agreement
and
such breach shall not have been cured within thirty (30) days after written
notice to Employee specifying the breach in reasonable detail; provided,
however, that the foregoing opportunity to cure shall not apply if the Board
reasonably determines that Employee’s breach is not capable of cure; or
4.
(iv) Employee
takes any action or omits to take any action, which act or omission Employee
knew or reasonably should have known would likely be materially adverse to
the
business of the Company, or any of its Affiliates; or
(v) gross
negligence by Employee in the performance of, or willful disregard by Employee
of, his employment obligations or authority as set forth herein; or
(vi) Employee
shall have refused to obey any lawful resolution or direction of the Board
that
is consistent with his duties hereunder, and such refusal shall have continued
for a period of ten (10) days after written notice to Employee specifying
such
refusal in reasonable detail.
(b) Resignation
for Good Reason.
Subject
to Section 3 above and any applicable notice and cure period, Employee may
resign from his employment for “Good Reason.” For purposes of this Agreement,
“Good
Reason”
shall
mean any one or more of the following:
(i) a
material breach of this Agreement by the Company, which breach shall have
continued for a period of thirty (30) days after written notice by Employee
to
the Board specifying the breach in reasonable detail; or
(ii) a
material and substantial reduction in the authority, duties or responsibilities
of Employee to a level below those associated with the position as described
in
Section 2 hereof, or material adverse change in Employee’s job title, or a
material and detrimental alteration of the terms, conditions or scope of
Employee’s employment, as described in that section, or a demotion or
replacement of Employee, whether or not undertaken following a sale, merger,
acquisition, consolidation or restructuring, and whether or not accompanied
by a
change in title or a reduction in salary or benefits; or
(iii) any
reduction in Employee’s then-current Base Salary or other benefits provided
hereunder, unless such reduction is consistent with Section 4(d); or
(iv) the
failure of the Company to obtain an agreement reasonably satisfactory to
Employee from any successor to assume and agree to perform this Agreement,
as
contemplated in Section 15(e) hereof or, if the business for which Employee’s
services are principally performed is sold or transferred, the failure of
the
Company to obtain such an Agreement from the purchaser or transferee of such
business.
5.
(c) Death
or Disability. Employee’s
employment will be terminated immediately upon Employee’s death. In the event of
Employee’s Disability, the Company agrees to continue payment of Employee’s Base
Salary during his employment; provided, however, Employee’s employment may be
terminated in accordance with applicable law by a vote of a majority of the
Board if Employee remains Disabled for a period of more than six (6) months
during any twelve (12) month period (“Disability”
or
“Disabled”).
Employee
shall be Disabled if he has a physical or mental impairment as a result of
which
he is unable to perform the essential functions of his job with or without
reasonable accommodation. In the event Employee’s employment is terminated due
to Employee’s death or Disability, as provided in this section, Employee shall
not be entitled to receive any further compensation or payments from the
Company
(except for any Base Salary due Employee for his services performed prior
to the
date Employee’s employment with the Company terminates and/or any previously
awarded but unpaid bonus). Any vested options owned by Employee as of his
death
may pass to his heirs in accordance with and subject to applicable law, subject
to such restrictions on exercise, transfer and the like as were applicable
to
Employee.
(d) Notification
of Termination. Any
termination by the Company (which, for purposes of this Section and Section
7
shall be deemed to include a termination by the Board) for Cause, or by Employee
for Good Reason, shall be communicated by Notice of Termination to the other
party given in accordance with Section 14(a) of this Agreement. For purposes
of
this Agreement, a “Notice
of Termination”
means a
written notice which (i) indicates the specific termination provision in
this
Agreement relied upon, (ii) sets forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Employee’s
employment under the provision so indicated and (iii) specifies the termination
date (which date, in the case of termination for Good Reason, shall be not
more
than thirty (30) days after the giving of such notice). The failure by Employee
or the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Cause shall
not
waive any right of Employee or the Company, respectively, or preclude Employee
or the Company, respectively, from asserting such fact or circumstance in
enforcing Employee’s or the Company’s rights.
In
addition, Employee shall not be deemed to have been terminated for Cause
unless
and until there shall have been delivered to Employee a copy of a resolution
duly adopted by the Board at a meeting of the Board called and held for such
purpose (after reasonable notice to Employee and an opportunity for Employee
to
be heard before the Board), finding that in the good faith opinion of the
Board,
Employee was engaged in the conduct set forth in Section 6(a)(i), (ii), (iii),
(iv), (v) or (vi).
Section
7. Certain
Consequences Of Termination.
(a) Termination
for Cause; Resignation without Good Reason.
If
Employee’s employment shall be terminated by the Company for Cause or by
Employee’s resignation without Good Reason, the Company shall pay Employee his
Base Salary and provide his Benefits only through the date of termination.
No
compensation or benefits will accrue or be owed to Employee for any period
after
the effective date of termination. The Company will not accrue liability
of any
kind on account of such termination.
6.
(b) Termination
Without Cause; Resignation for Good Reason.
If
Employee’s employment shall be terminated by the Company without Cause or by
Employee for Good Reason, the Company shall provide the following benefits
(the
“Severance
Benefits”),
regardless of any income received by Employee pursuant to any new employment
of
Employee during the period of payment of any severance payments under this
paragraph (b):
(i) pay
Employee his Base Salary through the date of termination and, in addition,
severance pay equal to six (6) months of his Base Salary. All of the foregoing
payments of severance shall be payable in accordance with the Company’s standard
payroll schedule;
(ii) continue
to provide the Benefits (with an appropriate “gross up” sufficient to result in
Employee’s having no net income tax liability for such Benefits) for a period
equal to that during which severance payments continue to be made under this
section, to the extent Employee is not eligible for similar coverage under
the
plan of another Employer; and
(iii) subject
to applicable law, accelerate to the date of Employee’s termination the vesting
of Employee’s stock options that would have vested during the six (6) month
period immediately following the effective date of the termination of his
employment.
(c) Release.
Employee’s entitlement to the Severance Benefits shall be conditioned on his
delivery to the Company of a signed, final and binding, full general release
of
claims in a form acceptable to the Company.
Section
8. Confidential
Information.
Employee
recognizes and acknowledges that certain assets of the Company and its
Affiliates constitute Confidential Information. The term “Confidential
Information” as used in this Agreement shall mean non-public information
concerning financial data, strategic business plans, product development
(or
other proprietary product data), customer lists, marketing plans and other
non-public, proprietary and confidential information of the Company or its
Affiliates that is not otherwise available to the public (including, without
limitation, information regarding clients, customers, pricing policies, methods
of operation, proprietary computer programs, sales, products, profits, costs,
markets, key personnel, formulae, product applications, technical processes,
and
trade secrets). Employee shall not, during or after his term of employment,
use,
or disclose all or any part of the Confidential Information to any person,
firm,
corporation, association, or any other entity, for any reason or purpose
whatsoever, directly or indirectly, except as may be required pursuant to
his
employment hereunder, unless and until such Confidential Information becomes
publicly available other than as a consequence of the breach by Employee
of his
confidentiality obligations hereunder. In the event of the termination of
his
employment, whether voluntary or involuntary and whether by the Company or
Employee, or at any time upon the request of the Board, Employee shall return
all property belonging to the Company or its Affiliates that are in Employee’s
(or Employee’s heirs’ or personal representatives’) possession or control. In
addition, Employee shall deliver to the Company all documents and materials
containing Confidential Information and shall not take with him following
his
employment termination any documents, materials or data of any kind or any
reproductions (in whole or in part) or extracts of any items containing,
referring or relating to the Confidential Information.
7.
Notwithstanding
the foregoing, in the event that Employee receives a request or is required
(by
deposition, interrogatory, request for documents, subpoena, civil investigative
demand or similar process) to disclose all or any part of the Confidential
Information, Employee agrees to (a) immediately notify the Company of the
existence, terms and circumstances surrounding such request or requirement,
(b)
consult with the Company and its Affiliates on the advisability of taking
legally available steps to resist or narrow such request or requirement,
and (c)
assist the Company and its Affiliates in seeking a protective order or other
appropriate remedy. In the event that such protective order or other remedy
is
not obtained or that the Company waives Employee’s compliance with the
provisions hereof, (i) Employee may disclose to any tribunal only that portion
of the Confidential Information that Employee, as advised by counsel, is
legally
required to be disclosed and shall exercise his best efforts to obtain assurance
that the disclosure will be treated confidentially and (ii) Employee shall
not
be liable for such disclosure unless disclosure to any such tribunal was
caused
by or resulted from a previous disclosure by Employee not permitted by this
Agreement.
Section
9. Non-Competition.
During
all periods of Employee’s employment with the Company or its Affiliates,
Employee agrees that, without the prior written consent of the Board, he
will
not, directly or indirectly, either as a principal, manager, agent, consultant,
officer, stockholder, partner, investor, employee or in any other capacity,
carry on, be engaged in or have any financial interest in, any business entity
that engages in (1) the production or marketing of die-cast or injection-molded
products or scale models or books and specialty packaging or (2) any logical
horizontal or vertical extensions of the production or marketing of such
products, in each case in anywhere in the world where the Company or its
Affiliates’ products are sold or distributed (the “Business”);
provided, however, that Employee may own, directly or indirectly, solely
as a
passive investment, securities of any entity traded on any national securities
exchange or automated quotation system if Employee is not a controlling Person
of, or a member of a group which controls, such entity and does not, directly
or
indirectly, “beneficially own” (as defined in Rule 13d-3 of the Securities
Exchange Act of 1934, as amended, without regard to the sixty (60) day period
referred to in Rule 13d-3(d)(1)(i)) 5% or more of any class of securities
of
such entity. Employee hereby acknowledges and agrees that the foregoing
restrictive covenant is reasonable in terms of temporal, geographic and subject
matter scope.
Section
10. Non-Solicitation.
Employee
acknowledges that, because of the nature of Employee’s work for the Company,
Employee’s solicitation, serving or retention of certain customers, clients,
vendors, suppliers, distributors or consultants (each such person or entity,
a
“Customer
or Supplier”)
or
employees related to Employee’s work for the Company and its Affiliates relating
to the Business would necessarily involve the unauthorized use or disclosure
of
Confidential Information, and the proprietary relationships and goodwill
of the
Company and its Affiliates. Accordingly, for a period of two years following
the
termination of Employee’s employment with the Company, Employee shall not, with
respect to the Business, directly or indirectly, solicit, provide services
to or
retain any Customer or Supplier of the Company or its Affiliates with which
the
Company or its Affiliates engaged in business transactions during the two-year
period prior to termination of Employee’s employment with the Company, provided
that the restrictions contained in this sentence shall only apply to those
activities described in clauses (1) and (2) of Section 9. Employee further
agrees that for a period of two years following the termination of Employee’s
employment with the Company, Employee shall not, directly or indirectly,
solicit, induce, or attempt to solicit or induce, any Customer or Supplier
or
employee to terminate his, her or its relationship with the Company (including
its Affiliates) relating to the Business for any purpose, including the purpose
of associating with or becoming a Customer or Supplier or employee, whether
or
not exclusive, of Employee or any entity of which Employee is or becomes
a
partner, stockholder, principal, member, officer, director, principal, agent,
trustee or consultant, or otherwise solicit, induce, or attempt to solicit
or
induce any such Customer or Supplier or employee to terminate his, her or
its
relationship with the Company relating to the Business for any other purpose
or
no purpose.
8.
Each
and
every obligation under Sections 9 and 10 shall be treated as a separate
obligation and shall be severally enforceable as such and in the event of
any
obligation or obligations being or becoming unenforceable in whole or in
part,
such part or parts as are unenforceable shall be deleted from Sections 9
and 10
and any such deletion shall not affect the enforceability of all such parts
of
Sections 9 and 10 as remain not so deleted.
While
the
restrictions contained in Section 9 and 10 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 reasons unforeseen and accordingly
it
is hereby agreed and declared that if any of such restrictions shall be adjudged
to be void as going beyond what is reasonable in all the circumstances for
the
protection of the interests of the Company or the Employee but would be valid
if
part of the wording thereof were deleted or the periods thereof reduced or
the
range of activities or area dealt with thereby reduced in scope the said
restriction shall apply with such modifications as may be necessary to make
it
valid and effective.
Section
11. Discoveries
And Works.
All
Discoveries and Works made or conceived by Employee during his employment
by the
Company, jointly or with others, that relate to the business of the Company
or
its Affiliates, shall be owned by the Company. The term “Discoveries and Works”
includes, without limitation, trade secrets and other confidential information,
patents and patent applications, trademarks and trademark registrations and
applications, service marks and service xxxx registrations and applications,
trade names, copyrights and copyright registrations and applications. Employee
shall (a) promptly notify, make full disclosure to, and execute and deliver
any
documents requested by, the Company, to evidence or better assure title to
Discoveries and Works in the Company, as so requested, (b) renounce any and
all
claims, including, but not limited to, claims of ownership and royalty, with
respect to all Discoveries and Works and all other property owned or licensed
by
the Company or its Affiliates, (c) assist the Company and its Affiliates
in
obtaining or maintaining for itself at its own expense patents, copyrights,
trade secret protection or other protection of any and all Discoveries and
Works, and (d) promptly execute, whether during his employment with the Company
or thereafter, all applications or other endorsements necessary or appropriate
to maintain patents and other rights for the Company and its Affiliates and
to
protect the title of the Company and its Affiliates thereto, including, but
not
limited to, assignments of such patents and other rights. Employee acknowledges
that all Discoveries and Works shall be deemed “works made for hire” under the
U.S. Copyright Act of 1976, as amended.
(a) Employee
has provided on Schedule B hereto a list describing all inventions, original
works of authorship, developments, improvements, and trade secrets which
were
made by Employee prior to employment with the Company, which belong to Employee
alone or jointly with others, which relate to the Company’s or its Affiliates’
business, products or research and development, and which are not assigned
to
the Company or its Affiliates. If “none” is stated on Schedule B, Employee
therefore represents that there are no such inventions, works of authorship,
developments, improvements or trade secrets.
9.
(b) Employee
understands that the provisions of this Agreement requiring assignment to
the
Company or its Affiliates do not apply to any invention made by an employee
of
the Company which qualifies fully under the provisions of Section 2870 of
the
California Labor Code which provides:
(a) Any
provision in an employment agreement which provides that an employee shall
assign, or offer to assign, any of his or her rights in an invention to his
or
her employer shall not apply to an invention that the employee developed
entirely on his or her own time without using the employer’s equipment,
supplies, facilities, or trade secret information except for those inventions
that either:
(1) Relate
at
the time of conception or reduction to practice of the invention to the
employer’s business, or actual or demonstrably anticipated research or
development of the employer; or
(2) Result
from any work performed by the employee for the employer.
(b) To
the
extent a provision in an employment agreement purports to require an employee
to
assign an invention otherwise excluded from being required to be assigned
under
Subdivision (a), the provision is against the public policy of this state
and is
against the public policy of this state and is unenforceable.
Employee
agrees to advise the Company promptly in writing of any inventions that he
believes meet the criteria of Section 2870 of the California Labor Code,
and
will also provide at that time to the Company in writing all evidence necessary
to substantiate that belief. the Company will keep in confidence and will
not
disclose to third parties without Employee’s consent any confidential
information disclosed in writing to the Company relating to inventions that
qualify fully under the provisions of Section 2870 of the California Labor
Code.
Section
12. Remedies.
Employee
agrees that any breach of the covenants contained in Section 9, 10, or 11
would
irreparably injure the Company. Accordingly,
the Company may, pending the commencement and/or outcome of any arbitration
pursuant to Section 13 below, in addition to pursuing any other remedies
it may
have in law or in equity, obtain an injunction against Employee from any
court
having jurisdiction over the matter, restraining any threatened or further
violation of Section 9, 10 or 11 by Employee.
10.
Section
13. Dispute
Resolution.
To ensure rapid and economical resolution of any and all disputes that might
arise in connection with this Agreement, Employee and the Company agree that
any
dispute or controversy arising under or in connection with this Agreement
shall
be resolved exclusively first, by mediation using a mediator mutually selected
from Judicial Arbitration and Mediation Services (“JAMS”),
and if not thereby resolved, by arbitration conducted before a mutually selected
JAMS arbitrator or other mutually selected arbitrator, in San Francisco,
California in accordance with the applicable rules of JAMS then in effect.
The
decision of the arbitrator will be final and binding upon the parties hereto.
Judgment may be entered on the arbitrator’s award in any court having
jurisdiction.
Section
14. General.
(a) Notices.
All
notices and other communications hereunder shall be in writing, and shall
be
deemed to have been duly given if delivered personally or if sent by overnight
courier or by certified mail, return receipt requested, postage prepaid,
or
transmitted by facsimile transmission, to the other party at the address
sent
forth below:
|
If
to the Company, to:
|
Xxx
Xxxx Xxxxxx
|
|
|
c/o
Zindart Limited
|
||
|
1203
East Wing, New World Office Xxxxxxxx
|
||
|
00
Xxxxxxxxx Xxxx
|
||
|
Xxxxxxxxxxx,
Xxxxxxx
|
||
|
Xxxx
Xxxx
|
||
|
Telephone:
(000) 0000 0000
|
||
|
Facsimile:
(000) 0000 0000
|
||
|
If
to Employee, to:
|
Xxxxx
X. X. Xxxxxxxx
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Xxxxxx
Xxxx Xxxxxx XX000X
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Xxxxxxxxxxxxx,
Xxxxxxxx
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Telephone:
00000 000000
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Facsimile:
01450 370275
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Any
such
notice shall be effective (i) if delivered personally, when received, (ii)
if
sent by overnight courier, when receipted for, (iii) if mailed, five (5)
days
after mailing and (iv) if by facsimile, when electronically confirmed by
the
sender.
(b) Severability.
If
any
provision of this Agreement is or becomes invalid, illegal or unenforceable
in
any respect under any law, the validity, legality or enforceability of the
remaining provisions hereof shall not in any way be affected or
impaired.
(c) Waivers.
No
delay
or omission by either party hereto in exercising any right, power, or privilege
hereunder shall impair such right, power, or privilege, nor shall any single
or
partial exercise of any such right, power, or privilege preclude any further
exercise thereof or the exercise of any other right, power, or
privilege.
(d) Counterparts.
This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same
instrument.
11.
(e) Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of the Company’s
successors and Employee’s personal or legal representatives, executors,
administrators, heirs, distributees, devisees and legatees. This Agreement
shall
not be assignable by Employee, it being understood and agreed that this is
a
contract for Employee’s personal services. This
Agreement shall not be assignable by the Company except in connection with
a
Change of Control or a transaction involving the succession by a third party
to
all or substantially all of the Company’s business and/or assets (whether direct
or indirect and whether by purchase, merger, consolidation, liquidation or
otherwise), in which case the Company shall require any such successor to
assume
this Agreement and expressly agree to perform this Agreement in the same
manner
and to the same extent as the Company would be required to perform it in
the
absence of a succession. For all purposes under this Agreement, the term
“Employer”
shall include any successor to the Company’s business and/or assets as aforesaid
which assumes and agrees to perform this Agreement by operation of law, or
otherwise.
For
purposes of this Agreement “Change
of Control”
shall mean (a) the acquisition of fifty (50) percent or more of each class
of
the outstanding shares of the Company by a third party which is not an Affiliate
of the Company, (b) a merger, consolidation or other reorganization of the
Company (other than reincorporation), if after giving effect to such merger,
consolidation, or other reorganization, the shareholders of the Company
immediately prior to such merger, consolidation, or other reorganization
do not
represent a majority in interest of the holders of voting securities (on
a fully
diluted basis) with the ordinary power to elect directors of the surviving
entity after such merger, consolidation or other reorganization, or (c) the
sale
of all or substantially all of the assets of the Company to a third party
who is
not an Affiliate of the Company.
(f) Survivorship.
The
respective rights and obligations of the parties hereunder, including but
not
limited to Employee’s obligations under Section 9, 10 and 11 above, shall
survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
(g) Each
Party the Drafter.
This
Agreement and the provisions contained in it shall not be construed or
interpreted for or against any party to this Agreement because that party
drafted or caused to be drafted any of its provisions.
(h) Headings.
All
descriptive headings to sections and paragraphs in this Agreement are intended
solely for convenience, and no provision of this Agreement is to be construed
by
reference to the heading of any section or paragraph.
(i) Entire
Agreement. This
Agreement, and any and all stock option agreements between the Company and
Employee, contain the entire understanding of the parties, supersede all
prior
agreements and understandings relating to the subject matters hereof, including
without limitation the Employment Agreement and the Separation and Consulting
Agreement, and shall not be amended except by a written instrument hereafter
signed by each of the parties.
12.
(j) This
Agreement will be deemed to have been entered into and will be construed
and
enforced in accordance with the laws of Hong Kong.
In
Witness Whereof,
and intending to be legally bound hereby, the parties hereto have caused
this
Agreement to be duly executed as of the date and year first above
written.
| /s/
Xxxxx X.X. Xxxxxxxx XXXXX X.X. XXXXXXXX |
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| ZINDART LIMITED, | ||
| a Hong Kong Corporation | ||
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| By: | /s/ Xxx Xxxx Xxxxxx | |
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Xxx Xxxx Xxxxxx Duly authorized member of the Board of Directors |
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13.
