Service Agreement - China Resources Development inc. and Ching Lung Po
Service Agreement between the Company and Ching Lung Po,
dated February 1, 1999.
Dated the 1st day of February, 1999
CHINA RESOURCES DEVELOPMENT, INC
AND
CHING LUNG PO
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SERVICE AGREEMENT
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THIS AGREEMENT is made the 1st day of February, 1999.
BETWEEN
(1) CHINA RESOURCES DEVELOPMENT, INC. a company incorporated in the State of
Nevada; and
(2) CHING LUNG PO (the "Director").
BY WHICH IT IS AGREED as follows:-
1. Purpose and interpretation
(A) This Agreement sets out the terms and conditions upon and subject
to which the Company agrees to employ the Director and the
Director agrees to serve the Company as a Chief Executive Officer
by providing the Company with the services hereinafter described.
(B) (1) In this Agreement, unless the context otherwise requires, the
following words and expressions bear the following meanings:-
"Appointment" the appointment of the Director as an
executive director of the Company as effected
by Clause 2;
"Board" the board of directors for the time being of
the Company or the directors present at any
meeting of the Board duly convened and held;
"Business" the business carried on by the Group from
time to time; "Group" the Company and its
subsidiaries and associated companies from
time to time;
"$" Hong Kong dollars.
(2) References to Clauses and Schedule are references to the clauses and
schedule of or to this Agreement.
(3) References to the masculine gender include references to the feminine
gender and the neuter and vice versa.
(4) References to persons include references to individuals, firms,
companies, corporations and unincorporated bodies of persons and vice
versa.
(5) References to the singular number include references to the plural and
vice versa.
(6) The headings in this Agreement are for convenience only and do not
affect he interpretation hereof.
2. Appointment and duties
The Company shall employ the Director and the Director shall serve the
Company as a Chief Executive Officer subject to and upon the terms
hereinafter set out.
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3. Director's basic obligation
The Director hereby undertakes with the Company during the term of this
Agreement to use his best endeavours to carry out his duties hereunder
and to protect and promote the interests of the Group.
4. Duration of the appointment
Subject to Clause 7, this Agreement shall be for a term of two years
commencing on 1st February, 1999 and shall continue thereafter unless
and until terminated by either the Company or the Director giving to
the other 3 months' notice in writing to determine the same, such
notice to expire at any time on or after 1st February, 2001.
5. Director's services
The Director shall:-
(1) devote substantially the whole of his time, attention and
skill to the discharge of duties of his office as an executive
director of the Company;
(2) faithfully and diligently perform such duties and exercise
such powers as are consistent with his office in relation to
the Company and/or the Group;
(3) in the discharge of such duties and in the exercise of such
powers observe and comply with all reasonable and lawful
resolutions regulations and directions from time to time made
or given by the Board;
(4) in pursuance of his duties hereunder perform such services for
the Group and (without further remuneration unless otherwise
agreed) accept such offices in the Group as the Board may from
time to time reasonably require provided the same are
consistent with his office;
(5) at all times keep the Board promptly and fully informed in
connection with the performance of such powers and duties;
(6) as part of, and in the normal course of, his duties under this
Agreement the Director will be concerned to carry on research
into and development of the processes, products, designs,
equipment, techniques and projects from time to time used,
made or undertaken by the Group or which can be used, made or
undertaken by the Group, and to invent, discover, design,
develop or improve processes, products, designs, equipment and
techniques for the benefit of and for use by the Group; and
(7) carry out his duties and exercise his powers jointly with
another director or executive as may from time to time be
appointed by the Board to act jointly with the Director and
the Board may at any time require the Director to cease
performing or exercising any of his duties or powers under
this Agreement or pursuant to the bye-laws of the Company; and
(8) perform and exercise his duties and powers under this
Agreement in any place in Hong Kong or any other part of the
world as the Board may request or as the interests, needs,
business and opportunities of the Company or other company in
the Group will require or make advisable.
6. Remuneration and reimbursement
(A) From and after the execution of this Agreement, the Director
shall receive during the term of this Agreement as stipulated
herein:
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(1) a base salary in the amount of HK$2,160,000 per annum,
such salary to accrue on a day to day basis and payable
on a monthly basis.
(2) bonuses as determined by the Board at its sole
discretion and in accordance with the Company policy.
(B) The Director shall be reimbursed all reasonable out-of-pocket
expenses (including expenses of entertainment subsistence and
travelling) properly and reasonably incurred by him on the
Group's business which expenses shall be evidenced in such
manner as the Board may require.
(C) The Director shall be entitled to participate in any and all
stock option, stock bonus, pension, profit sharing, retirement
or other similar plans adopted by the Company.
7. Termination of the appointment
(A) Without prejudice to the accrued rights (if any) or remedies
of either party under or pursuant to this Agreement:-
(1) the Director shall be entitled to terminate the
Appointment by 3 months' notice in writing to the
Company if any money payable by the Company to the
Director under or pursuant to this Agreement is not paid
in full by the Company to the Director within a period
of 30 days from any written demand by the Director for
the payment thereof;
(2) the Company shall be entitled to terminate the
Appointment without any compensation to the Director:-
(a) by not less than 3 months' notice in writing given
at any time while the Director shall have been
incapacitated or prevented by reason of ill health,
injury or accident from performing his duties
hereunder for a period of or periods aggregating 90
days in the preceding 12 months, provided that if at
any time during the currency of a notice given
pursuant to this sub-paragraph the Director shall
provide a medical certificate satisfactory to the
Board to the effect that he has fully recovered his
physical and/or mental health and that no recurrence
of illness or incapacity can reasonably be
anticipated the Company shall withdraw such notice;
or
(b) by summary notice in writing if the Director shall
at any time:-
(1) commit any serious or persistent breach of any
of the provisions herein contained;
(2) be guilty of any grave misconduct or wilful
neglect in the discharge of his duties hereunder
or refuse to carry out any reasonable and lawful
order given to him by the Board in the course of
his Appointment;
(3) become bankrupt or have a receiving order made
against him or suspend payment or compound with
his creditors generally;
(4) become a lunatic or of unsound mind;
(5) absent himself from the meetings of the Board
during a continuous period of 3 months, without
special leave of absence from the Board, and his
alternate director (if any) shall not during such
period have attended in his stead;
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(6) be guilty of conduct tending to bring himself or
any company in the Group into disrepute;
(7) being a director of the Company or otherwise, be
prohibited by law from fulfilling his duties
hereunder;
(8) be convicted of any criminal offence (other than
an offence which in the reasonable opinion of the
Board does not affect his position as a director
of the Company); or
(9) improperly divulge to any unauthorized person
any business secret or secret details of the
organization, business or clientele of the Group.
(B) If the Company becomes entitled to terminate the Appointment
pursuant to sub-clause 7(A)(2)(b) it shall be entitled (but
without prejudice to its right subsequently to terminate the
Appointment on the same or any other ground) to suspend the
Director without payment of salary for so long as it may think
fit.
(C) If the Director shall have refused or failed to agree to
accept without reasonable grounds an appointment offered to
him on terms no less favorable to him than the terms in effect
under this Agreement, either by a company which has acquired
or agreed to acquire the whole or substantially the whole of
the undertaking and assets of the Company or which shall own
or has agreed to acquire the whole or not less than 90% of the
issued share capital of the Company, the Director shall have
no claim against the Company by reason of the subsequent
voluntary winding up of the Company or of the disclaimer or
termination of this Agreement by the Company within 3 months
after such refusal or failure to agree.
(D) On the termination of the Appointment howsoever arising the
Director shall:-
(1) at any time and from time to time thereafter at the
request of the Company resign from office as a director
of the Company and all offices held by him in any
company in the Group and shall transfer without payment
to the Company or as the Company may direct any
qualifying shares provided by it and the Director hereby
irrevocably appoints the Company to be his attorney and
in his name and on his behalf to sign and do any
documents or things necessary or requisite to give
effect thereto and a certificate in writing signed by
any director 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 and any third party shall be entitled to rely on
such certificate without further enquiry provided
however that such resignation or resignations shall be
given and accepted on the footing that it is or they are
without prejudice to any claims which the Director may
have against any such company or which any such company
may have against the Director arising out of this
Agreement or of the termination of the Appointment;
(2) forthwith deliver to the Company all books, documents,
papers, materials, credit cards and other property of or
relating to the business of the Group which may then be
in his possession or under his power or control; and
(3) not at any time thereafter represent himself still to be
connected with the Company or any other company in the
Group.
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(E) Save as expressly provided herein, neither party may terminate
this Agreement. No delay and forbearance by the Company in
exercising any such right of termination in Clause 7(A)(2)
shall constitute a waiver of that right.
8. Restrictions on the Director
(A) During the Appointment, the Director shall not be directly or
indirectly engaged in or concerned with or interested in any
business which is in any respect in competition with or
similar to the Business.
(B) The Director shall not either during or after the termination
of the Appointment without limit in point of time except
authorized or required by his duties:-
(1) divulge or communicate to any person except to those of
the officials of the Group whose province it is to know
the same; or
(2) use for his own purpose or for any purpose other than
that of the Group; or
(3) through any failure to exercise all due care and
diligence cause any unauthorized disclosure of any
secret confidential or private information:-
(a) relating to the dealings, organization, business,
finance, transactions or any other affairs of the
Group or its clients or customers; or
(b) relating to the working of any process or invention
which is carried on or used by any company in the
Group or which he may discover or make during his
Appointment; or
(c) in respect of which any company within the Group is
bound by an obligation of confidence to any third
party
but so that these restrictions shall cease to apply to any
information or knowledge which may become available to the
public generally without requiring a significant expenditure
of labour skill or money.
(C) The Director agrees that, for a period of six months after the
expiry or the termination of the Appointment, he will not:-
(1) engage or be engaged whether directly or indirectly in
any business which is in competition with or similar to
the Business or take employment with any person, firm,
company or organization engaged in or operating such
business or assist any such person, firm, company or
organization with technical, commercial or professional
advice in relation to such business;
(2) either on his own account or for any person, firm,
company or organization solicit or entice or endeavour
to solicit or entice away from any company within the
Group any director, manager or servant of any company in
the Group whether or not such person would commit any
breach of his contract of employment by reason of
leaving the service of the relevant company in the
Group;
(3) directly or indirectly employ any person who has at any
time during the currency of the Appointment been a
director, manager or servant of or consultant to any
company in the Group and who by reason of such
employment is or may be likely to be in possession of
such information which if that person was the Director
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would be covered by the confidential restrictions of
this Clause 8; and
(4) either on his own account or for any person, firm,
company or organization solicit business from any
person, firm, company or organization which at any time
the currency of the Appointment has dealt with the
Company or any other company in the Group or which on
the termination of the Appointment is in the process of
negotiating with the Company or any such company in the
Group in relation to the Business.
(D) Since the Director may obtain in the course of the Appointment
by reason of services rendered for or offices held in any
other company in the Group knowledge of the trade secrets or
other confidential information of such company, the Director
hereby agrees that 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 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.
(E) All notes, memoranda, records and writings made by the
Director 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 Group shall be and remain the property of
the Group and shall be handed over by him to the Company (or
to such other company in the Group as the case may require)
from time to time on demand and in any event upon his leaving
the service of the Company and the Director shall not retain
any copy thereof.
(F) While the restrictions contained in this Clause 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 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 but would be valid 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.
9. Copyright and design right
(A) If during his employment hereunder the Director in the course
of his normal duties or other duties specifically assigned to
him (whether or not during normal working hours) wither alone
or in conjunction with any other person
(i) originates any design (whether registrable or not) or
other work in which copyright or design right may
subsist and/or
(ii) makes, discovers or produces any invention, process or
development
he shall forthwith disclose the same to the Company and shall
(subject to sub-clauses 9(B), 9(C) and 9(D)) regard himself in
relation thereto as a trustee for the Company.
(B) The Director hereby agrees to assign wholly and absolutely the
copyright, future copyright, design right and future design
right and other proprietary rights if any for the full term
thereof throughout the world in respect of all copyright works
written, originated, conceived or made by the Director during
the period of his employment to the Company to hold absolutely
including the right to sue for damages for past infringements.
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(C) The Director acknowledges that the Company shall be treated as
the original proprietor of a design, where such design is
created by him in the course of his employment.
(D) Any such invention, process or development will be the
absolute property of the Company and the Director will, if and
when required by the Company (whether during the continuance
of his employment or afterwards) at its expense, apply or join
with the Company in applying, for letter patent or other
protection in any part of the world for any invention process
or development.
(E) The Director agrees and undertakes that he will execute such
deeds or documents and do all such acts and things as may be
necessary or desirable to substantiate and maintain the rights
of the Company in respect of the matters referred to in
sub-clauses 9(A) to 9(D).
(F) The Director irrevocably appoints the Company as his attorney
in his name and on his behalf to execute all documents and do
all things required in order to give full effect to the
provisions of this clause.
10. Holidays
The Director shall (in addition to normal public holidays) be entitled,
at the discretion of the Company to 21 working days paid holiday in
each year during the continuance of the Appointment to be taken as such
time or times as the Board may approve.
11. Waiver
(A) Time is the essence of 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 thereof
or the exercise of any other power right or remedy by that
party.
(B) The remedies provided herein are cumulative and are not
exclusive of any remedies provided by law.
12. Notices
All notices, requests, demands, consents or other communications to or
upon the parties under or pursuant to this Agreement shall be in
writing addressed to the relevant party at such party's address set out
below (or at such other address as such party may hereafter specify to
the other party) and shall be deemed to have been duly given or made:-
(i) in the case of a communication by letter 10 days (if overseas)
or 48 hours (if local) after despatch or, if such letter is
delivered by hand, on the day of delivery;
(ii) in the case of a communication by telex or facsimile, when
sent.
The Company's address: Room 2005, 20/F., Universal Trade Centre, 3-5A
Arbuthnot Road, Central, Hong Kong.
The Director's address: Room 1015, Block M, Telford Gardens, Kowloon
Bay, Kowloon, Hong Kong
13. Assignability
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its successors and assigns and personal
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representatives (as the case may be), provided always that the Director
may not assign his obligations and liabilities under this Agreement
without the prior written consent of the Company.
14. Relationship
None of the provisions of this Agreement shall be deemed to constitute
a partnership or joint venture between the parties for any purpose.
15. Amendment
This Agreement may not be amended, supplemented or modified except by a
written agreement or instrument signed by or on behalf of the parties
hereto.
16. Severability
Any provision of this Agreement prohibited by or unlawful or
unenforceable under any applicable law actually applied by any court of
competent jurisdiction shall, to the extent required by such law, be
severed from this Agreement and rendered ineffective so far as is
possible without modifying the remaining provisions of this Agreement.
Where, however, the provisions of any such applicable law may be
waived, they are hereby waived by the parties to the full extent
permitted by such law to the end that this Agreement shall be a valid
and binding agreement enforceable in accordance with its terms.
17. Law and jurisdiction
This Agreement shall be governed by and construed in all respects in
accordance with the laws of the State of Nevada and the parties hereby
submit to the non-exclusive jurisdiction of the courts of the State of
Nevada.
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IN WITNESS whereof this Agreement has been duly executed the day and year first
above written.
CHINA RESOURCES DEVELOPMENT, INC.
By: /s/ Tam Cheuk Ho
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Name : Tam Cheuk Ho
Title : Chief Financial Officer
/s/ Ching Lung Po
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Ching Lung Po
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