Service Agreement - Man Sang International Ltd. and Cheng Tai Po
DATED THE 8TH DAY OF SEPTEMBER, 1997
MAN SANG INTERNATIONAL LIMITED
AND
CHENG TAI PO
-----------------
SERVICE AGREEMENT
-----------------
BAKER & McKENZIE
14th Floor Hutchison House
10 Harcourt Road
Hong Kong
(LKL/EC/IW)
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CONTENT
CLAUSE DESCRIPTION PAGE
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1. INTERPRETATION..................................................... 1
2. APPOINTMENT........................................................ 2
3. DURATION........................................................... 2
4. EXECUTIVE'S DUTIES................................................. 2
5. REMUNERATION....................................................... 3
6. OTHER BENEFITS..................................................... 3
7. EXPENSES........................................................... 4
8. DEDUCTIONS......................................................... 4
9. LEAVE.............................................................. 4
10. TERMINATION........................................................ 5
11. EXECUTIVE'S UNDERTAKINGS........................................... 6
12. INTELLECTUAL PROPERTY RIGHTS....................................... 8
13. MISCELLANEOUS...................................................... 8
EXECUTION................................................................... 10
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THIS AGREEMENT is made on the 8th day of September, 1997
BETWEEN:
(1) MAN SANG INTERNATIONAL LIMITED a company incorporated under the laws of
Bermuda and having its registered office at Clarendon House, 2 Church
Street, Hamilton HM11, Bermuda and its principal place of business in
Hong Kong at 21st Floor, Railway Plaza, 39 Chatham Road South, Tsim Sha
Tsui, Kowloon, Hong Kong (the "Company"); and
(2) CHENG TAI PO of Flat A, 22nd Floor, Park Mansion, 27-29 MacDonnell
Road, Hong Kong (the "Executive").
WHEREBY IT IS AGREED as follows:
1. INTERPRETATION
1.01 In this Agreement, unless the context requires otherwise:
"Board" means the board of directors for the time being of the Company;
"Group" means the Company and its subsidiaries from time to time and
"member of the Group" shall be construed accordingly;
"HK$" means Hong Kong dollars;
"Hong Kong" means the Hong Kong Special Administrative Region of the
People's Republic of China;
"Listing Rules" means the Rules Governing the Listing of Securities on
The Stock Exchange of Hong Kong Limited (as the same may be amended
from time to time); and
"month" means calendar month.
1.02 References herein to Clauses are to clauses in this Agreement unless
the context requires otherwise.
1.03 The headings are inserted for convenience only and shall not affect the
construction of this Agreement.
1.04 Unless the context requires otherwise, words importing the singular
include the plural and vice versa and words importing a gender include
every gender.
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2. APPOINTMENT
The Company will employ the Executive and the Executive hereby agrees
to serve the Company as an executive director upon the terms and
subject to the conditions hereinafter appearing.
3. DURATION
Subject to termination as hereinafter provided, the Company will employ
the Executive with effect from 1 September 1997 for an initial term of
three (3) years until terminated by either party giving to the other
not less than three (3) months' notice in writing.
4. EXECUTIVE'S DUTIES
The Executive shall, during the continuance of his employment
hereunder:
(a) serve the Company as Vice Chairman and an executive director
and, in such capacity, perform the duties and exercise the
powers from time to time assigned to or vested in him by the
Board (including (without further remuneration unless
otherwise agreed) serving on the board of directors, or in any
other office, of any member(s) of the Group, as the Board may
require) and he will perform those duties at such place or
places in Hong Kong or elsewhere as the Board may from time to
time determine;
(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;
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(f) carry out his duties and exercise his powers jointly with any
other director or executive of any member of the Group as
shall from time to time be appointed by the Board to act
jointly with the Executive and the Board may at any time
require the Executive to cease performing or exercising any of
his duties or powers under this Agreement; and
(g) comply with the relevant requirements of all applicable laws,
regulations, codes of practice and rules (including Securities
(Insider Dealing) Ordinance, the Rules Governing the Listing
of Securities on The Hong Kong Stock Exchange Limited and the
Model Code for Securities Transactions by Directors of Listed
Companies set out in Appendix 10 therein and the rules of any
other stock exchange, market or dealing system on which the
securities of any member of the Group is traded and the
applicable laws, regulations, codes of practice in that
jurisdiction).
5. REMUNERATION
The remuneration of the Executive shall be:
(a) a monthly salary of HK$250,000.00 payable in arrears by no
later than the seventh day of the following month, such salary
to include any sum receivable as director's fees or other
remuneration from any other member of the Group (if any). This
salary will be reviewed by the Board in each year at the time
of the annual salary reviews for senior executives provided
that the Executive shall abstain from voting and shall not be
counted in the quorum in respect of any resolution regarding
the amount payable to himself in relation to his employment
under this Agreement which is proposed at any meeting of the
Board;
(b) in respect of every financial year of the Company (which
expression shall include any other financial period in respect
of which the Company's accounts are made up), a discretionary
bonus of such amount as shall be determined by the Board
(provided that the aggregate of such amount and all
discretionary bonuses payable by the Company to its executive
directors in any financial year shall not exceed ten per cent.
of the net profits (after tax and after extraordinary items)
of the Company for such year as shown in its audited
accounts), payable within thirty (30) days after the Company's
accounts for the relevant year have been audited and
certified, provided that such discretionary bonus shall be
paid only on a pro rata basis in respect of any financial year
of the Company during a portion only of which the Executive
has served the Company hereunder, unless his employment shall
have been terminated pursuant to Clause 10.02, in which case
no discretionary bonus is payable.
6. OTHER BENEFITS
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6.01 In addition to the foregoing remuneration and benefits, the Executive
shall also be entitled to the use (whether for business or personal
purposes) of a motor car of such type as may be approved by the Board
and the Company shall pay all vehicle registration fees, taxes and
insurance premiums in respect of the car and shall pay or reimburse
against receipts all maintenance, repair and other running costs in
respect of the car and the cost of petrol during the continuance of his
employment hereunder, subject to determination by the Board as to the
appropriate level of cost of each item.
6.02 In addition to the above benefits, the Executive shall also be entitled
to such other benefits under any applicable employee benefit plan and
employee share option scheme adopted by the Company and any member of
the Group of which the Executive is a director or holds office for
their respective employees (including the Executive) as the Board shall
from time to time determine.
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 Company.
8. DEDUCTIONS
The Company shall be entitled, subject to any laws or agreements to the
contrary, at any time to deduct from the Executive's remuneration
hereunder any monies due from him to any member of the Group including,
but not limited to, any outstanding loans, advances, the cost of
repairing any damage to or loss of the Company'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
The Executive shall be entitled after completion of each year of
service with the Company to fifteen (15) days' leave (in addition to
public holidays) with full pay, which leave shall be taken at such time
or times as may be convenient to the Board having regard to the
exigencies of the Group's business provided that:
(a) if the employment of the Executive hereunder is to cease on
the completion of any year of service, the Executive shall be
entitled to take his said leave immediately prior to the end
of such year of service notwithstanding that at that time such
year of service shall not have been completed;
(b) if the employment of the Executive hereunder is to cease (for
any reason other than termination pursuant to Clause 10.02)
during any year of service, the
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Executive shall be entitled to an amount of leave
proportionate to the part of the year during which he has been
employed by the Company, such leave to be taken immediately
prior to the termination of his employment; and
(c) if for any reason the Executive shall not have taken his full
entitlement of leave in any particular year he shall not have
any claim against the Company in respect thereof nor, unless
the reason is the exigencies of the Company's business (of
which the Board shall be the sole judge), shall he be entitled
to additional leave in any year in respect of leave not taken
in previous years.
10. TERMINATION
10.01 If the Executive is at any time incapacitated by illness, injury or
accident from performing his duties hereunder and (if so required)
furnishes the Board with evidence satisfactory to it of such incapacity
and the cause thereof he shall be entitled to receive his full salary
for the first three (3) months or any shorter period during which such
incapacity continues and if he continues so incapacitated for a longer
period than three (3) consecutive months or if he is so incapacitated
at different times for more than ninety (90) days in any one period of
fifty-two (52) consecutive weeks then and in either of such cases his
employment may be terminated by the Company by one (1) month's notice
in writing.
10.02 If at any time during the term of his employment hereunder the
Executive shall 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, or shall be in breach of any of
the terms of this Agreement, or shall commit any act of bankruptcy or
become insolvent, or make any arrangements or composition with his
creditors generally, or become through mental disorder incapable of
managing his own affairs, or fail to pay his personal debts or shall be
guilty of persistent insobriety or be convicted of any criminal offence
involving his integrity or honesty, 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 bonus or any payment whatsoever (other
than salary actually accrued due and payable pursuant to Clause 5(a))
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.
10.03 In the event that: (a) the Executive is lawfully removed from his
office as a director of the Company by virtue of a resolution passed by
the members of the Company; or (b) the Executive, having retired from
the office of director of the Company in accordance with the Bye-laws
of the Company or any other applicable regulation or law, is not
re-elected as a director of the Company by the shareholders of the
Company at an annual general meeting of the Company, the Company may
within seven (7) days of the date of such vacation from office by the
Executive, terminate this Agreement forthwith by written notice to the
Executive.
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10.04 In the event of termination of the Executive's employment for whatever
reason, the Executive shall:
(a) (if not already vacated from such office(s)) forthwith resign
as a director of the Company and from all directorships or
other offices held by him in any member of the Group (and the
Executive irrevocably authorises the Company in his name and
on his behalf to execute all documents and do all things
necessary to effect such resignation in the event of his
failure to do so);
(b) shall cease to be entitled to any benefits under this
Agreement; and
(c) immediately return the car provided by the Company under
Clause 6.01 and the keys in respect thereof to the Company at
its principal place of business in Hong Kong or such other
place in Hong Kong as the Company may reasonably request
and the Executive shall not be entitled to claim any other compensation
whatsoever from the Company in respect of such termination except where
the Board otherwise agrees or as expressly provided for under this
Agreement.
10.05 Any delay or forbearance by the Company in exercising any right to
terminate this Agreement shall not constitute a waiver of such right.
10.06 If notice is served by either party pursuant to Clause 3, then for up
to a maximum period of three (3) months, the Company shall not be
obliged, at any time after the notice of termination is served, to
provide any work for the Executive or to assign to or vest in the
Executive any powers, duties or functions and may in its absolute
discretion suspend the Executive from work, and suspend the contractual
benefits of the Executive set out in Clauses 5(b) and 6 and to require
the Executive to refrain from entering any premises of any member(s) of
the Group and to refrain from contacting any customers, clients,
employees or suppliers of any member(s) of the Group.
11. EXECUTIVE'S UNDERTAKINGS
11.01 The Executive agrees to take good care of the car supplied by the
Company under Clause 6.01 and to ensure that the terms and conditions
of any insurance policy in respect thereof are observed.
11.02 The Executive shall not either during the continuance of his employment
hereunder or at any time thereafter divulge to any person whomsoever or
to any body corporate or unincorporated (except to those officers of
the Group whose province it is to know the same) or use for his own
purposes or for any purposes other than those of the Group and shall
use his best endeavours to prevent the unauthorised 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
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knowledge during or in the course of his employment. Confidential
information shall include, without limitation, lists or details of
customers and suppliers, information relating to the working of any
process of invention carried on or used by any member of the Group,
information relating to research and other projects, prices, discounts,
mark-ups, future business strategy and development, marketing,
price-sensitive information and any other information which is not
generally available to the public.
11.03 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 and credit cards and any equipment used by or made
available to the Executive by the Company or 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.
11.04 The Executive shall not at any time during the continuance of his
employment hereunder or for a period of twelve (12) months thereafter,
in any country or place where any member of the Group has carried on
business, carry on or be employed or interested directly or indirectly
in (whether as shareholder, director, partner, agent or otherwise and
whether alone or jointly with others) any business carried on by any
member of the Group during the continuance of the said employment in
competition with any member of the Group (other than as a holder of not
more than five (5) per cent of the issued shares, debentures or other
securities of any company listed on any recognised stock exchange)
provided that the provisions of this Clause 11.04 shall only apply in
respect of business activities or services with which the Executive was
personally concerned or for which he was responsible during his said
employment.
11.05 The Executive shall not at any time during the continuance of his
employment hereunder or for a period of twelve (12) months thereafter
either on his own account or in conjunction with or on behalf of any
other person or body corporate or unincorporated in competition with
any member of the Group directly or indirectly solicit or entice away
from any member of the Group, any person or body corporate or
unincorporated who now is or at any time during or at the date of the
termination of the said employment may have been or become a customer
or supplier or prospective customer or supplier of any member of the
Group and with whom the Executive had personal contact or dealings
during his said employment.
11.06 The Executive shall not at any time during the continuance of his
employment hereunder or for a period of twelve (12) months thereafter
solicit or entice away from any member of the Group or employ or
otherwise engage any person who now is or at any time during or at the
date of the termination of the said employment may have become an
employee of any member of the Group and with whom the Executive had
contact during his said employment, whether or not such person would
commit any
<PAGE> 10
breach of his contract of employment by reason of leaving the service
of the relevant member of the Group.
11.07 The Executive shall not at any time or for any purpose after
termination of his employment hereunder use either the English or
Chinese name of the Company or any name similar thereto in connection
with his own or any other name in any way calculated to suggest that he
is or has been connected with the Company's business, nor in any way
hold himself out as having had any such connection.
11.08 While the restrictions contained in Clauses 11.02 to 11.07 are
considered by the parties to be reasonable for the protection of the
business and interest of the Group and in all the circumstances and do
not work harshly upon the Executive it is recognised 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 member(s) of the Group but would be valid if part of the wording
thereof were deleted or the periods (if any) thereof were reduced or
the range of products or area dealt with thereby were reduced in scope,
the said restriction shall apply with such modifications as may be
necessary to make it valid and effective.
12. INTELLECTUAL PROPERTY RIGHTS
12.01 The Company (or any other member of the Group as the case may be) shall
be entitled free of charge to the sole ownership and exclusive use of
any invention or improvement made or discovered by the Executive and of
any copyright, design right, trade mark, service mark or trade name
created or used by the Executive (hereinafter referred to as the
"intellectual property rights") in the course of or for the purpose of
providing services hereunder to the Company or any other member of the
Group.
12.02 The Executive shall forthwith and from time to time both during and
after the term of this Agreement and at the request and cost of the
Company, insofar as it is within his power, do such acts and things and
execute such documents, as may in the opinion of the Company be
reasonably necessary for obtaining letters patent, registration or
other protection for any such intellectual property rights in any part
of the world and shall effect such registration and vest such letters
patent or other protection in the Company (or any other member of the
Group as the case may be) or its nominees. The Executive irrevocably
authorises the Company for the purposes aforesaid in the name of the
Executive and execute any document or do anything on his behalf. The
Executive shall at the cost and request of the Company render all
reasonable assistance to the Company (or any other member of the Group
as the case may be) for and in connection with the purposes aforesaid.
12.03 The Executive shall not during or after the termination of the
Agreement use to the detriment or prejudice of the Group or divulge to
any person any confidential information concerning the intellectual
property rights of the Group which may have come to his knowledge.
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13. MISCELLANEOUS
13.01 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.
13.02 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.
13.03 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.
13.04 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 facsimile number set out below (or such other
address or facsimile number as the addressee has by five (5) days'
prior written notice specified to the other parties):
To the Company: Man Sang International Limited
21st Floor, Railway Plaza
39 Chatham Road South
Tsim Sha Tsui, Kowloon
Hong Kong
Fax number: (852) 2317 5243
Attention: Mr. Cheng Chung Hing
To the Executive: Cheng Tai Po
Flat A, 22nd Floor, Park Mansion
27-29 MacDonnell Road
Hong Kong
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, by post, two (2) clear business days after the date of posting,
or by recorded delivery, when actually delivered to the relevant
address; and (b) if given or made by facsimile, when despatched subject
to receipt of machine-printed confirmation of error-free despatch of
the whole of the notice, demand or communication to the facsimile
number of the intended addressee.
13.05 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.
<PAGE> 12
13.06 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.
13.07 This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong and the parties hereby irrevocably submit to the
non-exclusive jurisdiction of the Hong Kong courts.
IN WITNESS WHEREOF this Agreement has been executed on the day and year first
above written.
SIGNED by )
)
for and on behalf of MAN SANG )
INTERNATIONAL LIMITED )
in the presence of: )
SIGNED by )
CHENG TAI PO )
in the presence of: )