DATED the 19th Day of January 1996
ACMA STRATEGIC HOLDINGS LIMITED
(the "Company")
and
XXXX XXXX & ASSOCIATES MANAGEMENT
CONSULTANCY LIMITED
(the "Consultant")
CONSULTANCY AGREEMENT
Xxxxxx Xxxx & Co
15 A/B Entertainment Building
00 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Tel: 0000 0000
Fax 0000 0000
Ref XX000000.xxx
CONSULTANCY AGREEMENT
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Dated the 19th day of January 1996
PARTIES: -
1. ACMA STRATEGIC HOLDINGS LIMITED (the "Company") a company incorporated
with limited liability in Hong Kong whose registered office is at 15 A/B
Entertainment Building, 30 Queen's Road Central, Hong Kong.
2. XXXX XXXX & ASSOCIATES MANAGEMENT CONSULTANCY LIMITED (the "Consultant") a
company incorporated with limited liability in Hong Kong whose registered
office is at 123 Thomson Xxxxxxxxxx Xxxxxxxx, 0-00 Xxxxxxx Xxxx, Xxxxxxx,
Xxxx Xxxx.
AGREEMENT: -
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1 INTERPRETATION
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1.1 The following expressions shall, unless the context otherwise requires,
have the following meanings:
"Board" means the Board of Directors of the Company and
includes any committee of the Board duly appointed
by it;
"CML" means Creative Master Limited ( ), a company
incorporated in Hong Kong having Companies
registration number 176189;
"Executive" means Xxxx Xx Xxxx, Xxxx of 00 Xxxxxx Xxxx, 0/X
Xxxxxxxx, Xxxx Xxxx;
"Managing Director" means any person holding such office of the
Company from time to time and includes any person
exercising substantially the functions of a
managing director or chief executive officer of
the Company;
"Services" means the duties of the Managing Director as set
out in this Agreement;
"Subsidiary" bears the meaning given to it by Sections 2(4),
(5) and (6) of the Companies Ordinance.
1.2 The headings and marginal headings to the clauses are for convenience
only and have no legal effect.
1.3 Any reference in this Agreement to any Ordinance or delegated legislation
includes any statutory modification or re-enactment of it or the
provision referred to.
2. APPOINTMENT AND DURATION
------------------------
2.1 The Company appoints the Consultant and the Consultant agrees to procure
that the Executive acts as Managing Director of the Company.
2.2 The appointment shall commence on 1 February 1996 and shall continue
(subject to earlier termination as provided in this Agreement) for a
fixed period of one year from then provided that on each anniversary of
the commencement the appointment shall automatically be renewed until
terminated by either party giving to the other three months' notice in
writing.
2.3 The Consultant shall procure that the Services shall be performed
exclusively by the Executive.
3. DUTIES OF THE CONSULTANT
------------------------
3.1 The Consultant shall at all times during the period of this Agreement: -
3.1.1 provide the Services of the Executive tot he Company on an
exclusive basis unless otherwise agreed;
3.1.2 not without the prior written consent of the Board itself carry
out or permit the Executive to carry out any business activities
or provide any services similar to the Services for any company
other than the Company or any of its Subsidiaries or accept any
appointments for any other company, individual, partnership,
project or joint venture or state entity or governmental
organisation or any political appointments;
3.1.3 faithfully and diligently perform those Services and exercise such
powers consistent with them which are from time to time assigned
to or vested in it;
3.1.4 obey all lawful and reasonable directions of the Board;
3.1.5 use its best endeavours to promote the interests of the Company
and its Group companies;
3.1.6 keep the Board promptly and fully informed (in writing if so
requested) of its conduct of the business or affairs of the
Company and its Group companies and provide such explanations
reports and records as the Board may require;
3.1.7 not at any time make any untrue or misleading statement relating
to the Company or any Group company.
3.2 The Consultant shall (without further remuneration) if and for so long as
the Company requires during the period of this Agreement: -
3.2.1 carry out the Services on behalf of any Group company;
3.2.2 procure that the Executive shall act as an officer of any Group
company or hold any other appointment or office as nominee or
representative of the Company or any Group company;
3.2.3 carry out such duties and the duties attendant on any such
appointment as if they were duties to be performed by it on behalf
of the Company.
4. CONSULTANCY FEE
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4.1 During its appointment the Company shall pay to the Consultant a
consultancy fee at the rate of
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HK$2,019,000 per annum (or such amount as may be agreed with the Company
from time to time) Subject to Clauses 4.2, 4.3 and 4.4 of this Agreement,
the consultancy fee shall be deemed to include any fees receivable by the
Executive as a Director of the Company or any Group company, or of any
other company or unincorporated body in which he holds office as nominee
or representative of the Company or any Group company.
4.2 In the event of the Company receiving any management fees in respect of
Services provided by the Consultant to companies or projects which the
Company acquires or participates in, the Company shall pay 20% of such
management fees to the Consultant.
4.3 If the Company invests in any company or project introduced by the
Consultant, the Company shall pay to the Consultant a finder's fee at
completion equal to 1% of the purchase consideration payable by the
Company and a further 1% of such purchase consideration one year after
completion provided that agreed project targets have been met during such
year.
4.4 In addition, the Company shall at the discretion of the Board pay to the
Consultant an annual performance fee of up to 2.5% of the net profits
after tax of CML and its Subsidiaries on a consolidated basis as
determined by the Board of CML and received from CML pursuant to the
Consultancy Agreement dated 19 January 1996 between CML and the Company.
5. EXPENSES
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The Company shall reimburse to the Consultant all travelling, hotel,
entertainment and other expenses reasonably incurred by it in the proper
performance of the Services subject to the production to the Company of
such vouchers or other evidence of actual payment of the expenses as the
Company may reasonably require.
6. TERMINATION OF AGREEMENT
------------------------
6.1 This Agreement shall automatically terminate: -
6.1.1 if the Executive becomes prohibited by law from being a director;
or
6.1.2 if the Executive resigns his office as director of the Company; or
6.1.3 if the office of director of the Company held by the Executive is
vacated pursuant to the Company's Articles of Association save if
the vacation shall be caused by sickness (including mental
disorder) or injury.
6.2 The Company may by notice terminated the Agreement with immediate effect
if the Bxecutive: -
6.2.1 commits any act of gross misconduct or repeats or continues (after
written warning) any other serious breach of his obligations under
this Agreement; or
6.2.2 is guilty of any conduct which in the opinion of the Board brings
him, the Company or any Group company into disrepute, or
6.2.3 is convicted of any criminal offence punishable with 6 months or
more imprisonment; or
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6.2.4 commits any act of dishonesty whether relating to the Company, any
Group company, any of its or their employees or otherwise; or
6.2.5 becomes bankrupt or makes any arrangement or composition with his
creditors generally; or
6.2.6 is in the opinion of the Board incompetent in the performance of
his duties.
6.3 On the termination of this Agreement for whatever reason, the Consultant
shall at the request of the Company procure that the Executive shall
resign (without prejudice to any claims which the Executive may have
against any company arising out of this Agreement or the termination
thereof) from all and any offices which he may hold as a Director of the
Company or of any Group company and from all other appointments or
offices which he holds as nominee or representative of the Company or any
Group company.
7. GENERAL
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7.1 This Agreement sets out the entire agreement and understanding of the
parties and is in substitution for any previous contracts of employment
or for services between the Company or any of its Group companies and the
Executive which shall be deemed to have been terminated by mutual
consent.
7.2 The expiration or termination of this Agreement however arising shall not
operate to affect such of the provisions of this Agreement as are
expressed to operate or have effect after then and shall be without
prejudice to any accrued rights or remedies of the parties.
7.3 The validity construction and performance of this Agreement shall be
governed by Hong Kong law.
7.4 All disputes claims or proceedings between the parties relating to the
validity construction or performance of this Agreement shall be subject
to the non-exclusive jurisdiction of the High Court of Hong Kong to which
the parties irrevocably submit.
7.5 Any notice to be given by a party under this Agreement must be in writing
in the English language and must be given by delivery at or post
facsimile transmission or other means of telecommunication in permanent
written form to the last known address or relevant telecommunication
number of the other party. Where notice is given by sending in a
prescribed manner it shall be deemed to have been received which in the
ordinary course of the means of transmission it would be received by the
addressee. To prove the giving of a notice it shall be sufficient to show
it was despatched. A notice shall have effect from the sooner of its
actual or deemed receipt by the addressee.
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IN WITNESS WHEREOF the parties or their duly authorised representatives have set
their hands to this Agreement the day and year first before written.
SIGNED BY )
IN WITNESS WHEREOF the parties or their duly authorised representatives have set
their hands to this Agreement the day and year first before written.
SIGNED BY )
for and on behalf of )
ACMA STRATEGIC HOLDINGS )
LIMITED in the presence of: - )
SIGNED BY XXXX XX XXXX, XXXX )
for and on behalf of XXXX XXXX & )
ASSOCIATES MANAGEMENT ) /s/ Xxxx Xxxx
CONSULTANCY LIMITED )
in the presence of:- )
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