Employment Agreement - NetEase.com Inc. and Michael Tong
Dated 25 June 2002
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NETEASE.COM, INC
and
MICHAEL TONG
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EMPLOYMENT CONTRACT
FOR
EXECUTIVE DIRECTOR
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THIS AGREEMENT is made this 25th day of June, 2003
BETWEEN
NetEase.com, Inc which business address is 1901, Tower E3, Oriental Plaza,
Beijing, PRC 100738 (hereinafter called "the Employer") of the one part, and the
person whose name and address are set out in the Schedule hereto (hereinafter
called "the Employee") of the other part.
NOW IT IS AGREED as follows:
1. Interpretation
1.1 In this Agreement:
(i) unless the context otherwise requires, words herein denoting one
gender include all other genders and words denoting the singular
include the plural and vice versa;
(ii) any reference to a statutory provision shall be deemed to include a
reference to any modification or re-enactment of it;
(iii) the clause headings do not form part of the terms and conditions of
this Agreement and shall not be taken into account in construing or
interpreting this Agreement;
(iv) reference in this Agreement to any clause, sub-clause, schedule,
exhibit or paragraph without further designation shall be construed
as references to the clause, sub-clause, schedule, exhibit or
paragraph of this Agreement so numbered; and
(v) any clause that is invalid or unenforceable because of any
legislation or ruling of any court of competent jurisdiction shall
not render the whole Agreement void but shall only be:
(a) varied to such an extent so as to make it valid and enforceable
without affecting other clauses, or
(b) if variation is impossible, excluded from this Agreement as if it
had not existed at the time of signing of this Agreement while
the other clauses remain valid and subsisting.
2. Job Title and Commencement
2.1 The Employer shall employ the Employee in the capacity and from the date of
commencement set out in the Schedule upon the terms and conditions
hereinafter set out.
2.2 The Employee shall perform such duties and responsibilities as are normally
related to such position in accordance with the standards of the industry
and any additional duties now or hereafter assigned to the Employee by the
Employer. The Employee shall abide by
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the rules, regulations, and practices as adopted or modified from time
to time in the Employer's sole discretion.
2.3 Except upon the prior written consent of the Employer, the Employee will
not, during the term of this Agreement, (i) accept any other employment, or
(ii) engage, directly or indirectly, in any other business activity
(whether or not pursued for pecuniary advantage) that might interfere with
the Employee's duties and responsibilities hereunder or create a conflict
of interest with the Employer.
2.4 The Employee represents and warrants that the Employee's execution of this
Agreement, the Employee's employment with the Employer, and the performance
of the Employee's proposed duties under this Agreement shall not violate
any obligations the Employee may have to any other employer, person or
entity, including any obligations with respect to proprietary or
confidential information of any other person or entity.
3. Place of Work
3.1 The normal place of work for the Employee will be the office of the
Employer as it may change from time to time; provided, however that the
Employee shall travel and work both in Hong Kong and abroad, as may be
required for the proper fulfillment of his duties.
4. Hours of Employment
4.1 The Employee's normal hours of employment shall be the usual office hours
of the Employer that the Employer shall from time to time set for each day.
4.2 The Employer can at any time require the Employee to work such hours
outside the normal hours of employment as considered by the Employer at its
sole discretion to be necessary for the efficient discharge of the duties
of the Employee.
5. Remuneration
5.1 The Employer shall pay to the Employee such remuneration set out in the
Schedule. The Employee's base remuneration will be reviewed from time to
time in accordance with the established procedures of the Employer for
adjusting salaries for similarly situated employees and may be adjusted in
the sole discretion of the Employer.
5.2 The Employee may also receive a bonus at such time and in such amount that
the Employer may at its sole discretion fix. The Employee is only entitled
to receive such a bonus when the Employee is in the employ of the Employer
at the time when the Employer pays such bonus and the Employee has no right
to ask for or demand the Employer to pay any bonus on pro-rata basis.
5.3 The Employee shall be entitled to participate in the benefits made
generally available by the Employer to similarly situated employees, in
accordance with the benefit plans
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established by the Employer, and as the same may be amended from time to
time in the Employer's sole discretion.
5.4 The Employer shall reimburse the Employee for reasonable business expenses
incurred in the performance of the Employee's duties hereunder in
accordance with the Employer's expense reimbursement guidelines.
6. Tax Equalization
6.1 The Employer shall provide tax equalization benefit to the Employee. Under
the tax equalization arrangements, the Employer will be responsible for the
Employee's PRC individual income tax on the Employee's base remuneration
and the Employee will be responsible for a hypothetical Hong Kong Salary
Tax attributable to the base remuneration.
6.2 The hypothetical tax is the amount payable by the Employee to the Employer
which is equivalent to the amount of the Hong Kong Salary Tax attributable
to the Remuneration payable by the Employee to the Hong Kong Tax Authority
had the Employee remained in Hong Kong for the Employment. The tax rate for
calculating the hypothetical tax is fixed at 15%, which is equal to the
Hong Kong Salaries Tax Standard Rate at the time when both parties signed
the Employment Contract. The hypothetical tax rate will not change with any
subsequent amendments in the Hong Kong Salary Tax Standard Rate.
6.3 The Employee is fully responsible for the Employee's PRC individual income
tax on all share based compensation, including all related benefits of
shares options and share grants, which have a vesting schedule.
6.4 The Employer is fully responsible for the Employee's PRC individual income
tax on the Employee's other cash remuneration. For the avoidance of doubt,
the Employee's other cash remuneration includes year-end bonus, special
bonus, incentive payments, cash and living allowances and commissions.
7. Holidays
7.1 The Employee is entitled, in addition to the PRC statutory public holidays,
to take the number of working days set out in the Schedule as paid holiday
in each holiday year, the holiday year being the period set out in the
Schedule.
7.2 If the Employee's employment commences or terminates part way through the
holiday year, his entitlement to holidays during that year will be assessed
on a pro-rata basis.
7.3 Holidays must be taken at times convenient to the Employer and sufficient
notice of intention to take holiday must be given to the Employee's
manager.
7.4 Holiday entitlement unused at the end of a holiday year cannot be carried
over into the next holiday year.
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7.5 Upon termination of employment,
(i) the Employer shall be entitled to make deductions from the Employee's
final pay for any holidays taken in excess of the Employee's
proportionate annual holiday entitlement; and
(ii) the Employee shall be entitled to pro rata payment in lieu of any
unused annual holiday entitlement provided; however, that the Employer
may, in its absolute discretion, require that the Employee take all
accrued but unused annual holiday entitlement prior to the termination
of the employment.
7.6 A day's holiday pay for the purpose of this clause shall be calculated by
dividing 12 months total salary at the monthly rate at the time of
calculation by 365 days.
8. Sickness
8.1 In the event of absence on account of sickness or injury the Employee (or
someone on his behalf) must inform the Employer of the reason for the
Employee's absence as soon as possible and must do so not later than 10:00
a.m. on the date on which absence first occurs.
8.2 The Employee must produce to the Employer a medical certificate stating the
reason for absence on the first day that the Employee resumes working when
the sick leave lasts for 3 days or less and within the 4th calendar day of
absence when the absence lasts for more than 3 days, and thereafter provide
a like certificate each week to cover the subsequent period of absence.
8.3 The Employee will be paid his statutory sick pay for days of absence on
account of sickness or injury in accordance with Section 33 of the
Employment Ordinance of the Laws of Hong Kong. Entitlement to payment is
subject to notification of absence and production of medical certificates
in accordance with Clauses 8.1 and 8.2.
9. Termination of Employment
9.1 The employment of the Employee may be terminated:
(i) by the Employee on giving to the Employer not less than such period
of notice set out in the Schedule written notice of resignation from
employment;
(ii) by the Employer on giving to the Employee written notice, or at the
discretion of the Employer payment in lieu of such notice, for such
period set out in the Schedule;
(iii) by the Employer without notice or payment in lieu of notice for the
occurrence of any event set out in Section 9 of the Employment
Ordinance giving to the Employer a right to terminate the employment
without notice.
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9.2 Following any termination of employment, the Employee shall cooperate with
the Employer in the winding up of pending work on behalf of the Employer
and the orderly transfer of work to other employees. The Employee shall
also cooperate with the Employer in the defense of any action brought by
any third party against the Employer that relates to the Employee's
employment by the Employer.
9.3 Except in situations where the Employee's employment is terminated by
death, disability or pursuant to Sub-clause 9.1(iii), in the event the
Employer terminates the employment of the Employee at anytime, the Employee
will be eligible to receive an amount equal to 3 months of the then-current
Base Remuneration of the Employee payable in the form of salary
continuation. The Employee's eligibility for severance may be conditioned
on the Employee having first signed a release agreement. The Employee shall
not be entitled to any severance payments if the Employee's employment is
terminated by death, disability or pursuant to Sub-clause 9.1(iii) or if
the Employee's employment is terminated by the Employee.
10. Relocation Allowance
Upon termination of employment, the Employee is entitled to a cash
relocation allowance of the amount specified in the Schedule, provided that
the Employee completed one full year service starting from the commencement
date of this employment contract, or termination by Employer.
11. Non-Competition
11.1 For the period of six months following the termination of the employment,
the Employee shall not, either alone or jointly with another or others,
whether as principal, agent, consultant, director, partner, shareholder,
employee or in any other capacity, whether directly or indirectly through
any other person, firm or company, and whether for his own benefit or that
of others, save as the beneficial owner of shares or other securities of a
body corporate whose shares are quoted on a recognized stock exchange and
which when aggregated with shares or securities beneficially owned by his
spouse, children, step-children, parents and parents' children total no
more than five percent of any single class of shares or securities in such
body corporate, be engaged or concerned or interested in or carry on any
business conducted in Hong Kong and the PRC which competes with any
business carried on by the Employer or its affiliates at the date of such
termination and in which the Employee was involved at any time during the
last two years of the employment or in relation to which the Employee
acquired any confidential information during the course of the employment.
For the purposes of this Agreement, a competitive business is any business
in the filed of information technology relating to media placement, on-line
advertising, e-commerce, wireless value-added services, online games or
internet marketing.
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12. Inventions and Proprietary Information Agreement
12.1 The Employee agrees to sign and be bound by the terms of the Proprietary
Information and Inventions Agreement, which is attached hereto as Exhibit B
("Proprietary Information Agreement").
13. Amendments, Interpretation and Waiver
13.1 This Agreement may be amended only a written agreement signed by the
Employee and a duly authorized representative of the Employer. This
Agreement has been reviewed by the Employee and the Employer and shall be
deemed to be the product of the parties. The Employee agrees that he
intends the literal words of the Agreement and that no parole evidence
shall be necessary or appropriate to establish the Employee's actual
intentions. Failure to exercise any right under this Agreement shall not
constitute a waiver of such right.
14. Jurisdiction and Applicable Law
14.1 This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong, and the parties hereto submit to the non-exclusive
jurisdiction of the Hong Kong court.
15. Obligations Survive Termination of Employment
15.1 Employee agrees that any and all of Employee's obligations under this
agreement which are capable of operation after the termination of
employment, including but not limited to those contained in Clauses 10 to
12, shall survive the termination of employment and the termination of this
Agreement.
16. Counterparts
16.1 This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original of this Agreement, but all of which together
shall constitute one and the same instrument.
17. Authority
17.1 Each party represents and warrants that such party has the right, power and
authority to enter into and execute this Agreement and to perform and
discharge all of the obligations hereunder; and that this Agreement
constitutes the valid and legally binding agreement and obligation of such
party and is enforceable in accordance with its terms.
18. Entire Agreement
18.1 This Agreement, along with any other agreements specifically referenced
herein including the Proprietary Information Agreement, is intended to be
the final, complete, and exclusive
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statement of the terms of Employee's employment by the Employer and may not
be contradicted by evidence of any prior or contemporaneous statements or
agreements, except for agreements specifically referenced herein. To the
extent that the practices, policies or procedures of the Employer, now or
in the future, apply to the Employee and are inconsistent with the terms of
this Agreement, the provisions of this Agreement shall control. Except as
expressly provided in an amendment executed in accordance with Clause 13
above, any subsequent change in Employee's duties, position, or
compensation will not affect the validity or scope of this Agreement.
SIGNED for and on behalf of the Employer by )
)
its authorized representative ) /s/ Ted Sun
)
)
SIGNED by the Employee )
) /s/ Michael Tong
)
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SCHEDULE
Name : Michael Tong
Address : 4B Linden Height, 11 Boyce Road, Hong Kong
Job Title : Executive Director
Date of : 25 June 2003
Commencement
Base Remuneration : US$14,000 per month payable in arrears at the end of
each calendar month
Share Options : The Employee will be granted options to purchase
100,000 ADRs the exercise price equals to the closing
price of the actual joining date and the vesting
period is over 4 years period at 25% each year
commencing from the joining date
Housing Allowance : Not more than US$2,500 per month (on an actual basis)
Holiday year : from 1st January to 31st December
Number of Paid : 15 days
holidays (in
additional to the PRC
statutory public
holidays
Notice Period for : 3 month's prior notice in writing
termination by
Employee
Notice Period for : 3 month's prior notice in writing.
termination by
Employer
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<PAGE>
EXHIBIT A
TERMINATION CERTIFICATE CONCERNING
COMPANY PROPRIETARY INFORMATION
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This is to certify that I have returned all property of NetEase.com,
Inc. (the "Company"), including, without limitation, all source code listings,
books, manuals, records, models, drawings, reports, notes, contracts, lists,
blueprints, and other documents and materials, Proprietary Information, and
equipment furnished to or prepared by me in the course of or incident to my
employment with the Company, and that I did not make or distribute any copies of
the foregoing.
I further certify that I have reviewed the Company's Proprietary
Information Agreement ("Agreement") signed by me and that I have complied with
and will continue to comply with each and all of its terms and conditions,
including without limitation: (i) the reporting of any and all ideas, concepts,
inventions, discoveries, developments, know-how, structures, designs, formulas,
algorithms, methods, products, processes, systems and technologies; any and all
patents, patents pending, copyrights, moral rights, trademarks and any other
intellectual property rights therein; and any and all improvements,
modifications, derivative works from, other rights in and claims related to any
of the foregoing under the laws of any jurisdiction, conceived or developed by
me alone or with others and covered by the Agreement and (ii) the preservation
as confidential all Proprietary Information pertaining to the Company. This
certificate in no manner limits my responsibilities or the Company's rights
under the Agreement.
On termination of my employment with the Company, I will be employed by
_____________________ [Name of New Employer] [in the ______________ division]
and I will be working in connection with the following projects:
[generally describe the projects]
________________________________________________________________________________
________________________________________________________________________________
Date:____________
________________________________
Employee Name
________________________________
Employee Signature
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EXHIBIT B
PROPRIETARY INFORMATION AGREEMENT
---------------------------------
In consideration of my employment by NetEase.com, Inc., a Cayman Island
incorporated company, (the "Company"), I hereby agree to the following
restrictions and obligations placed on my use and development of information,
technology, ideas, inventions and other materials:
1. Proprietary Information
1.1 Restrictions on Proprietary Information. I agree that, during my employment
and at all times thereafter, I will hold the Proprietary Information of the
Company in strict confidence and will neither use the information nor
disclose it to anyone, except to the extent necessary to carry out my
responsibilities as an employee of the Company or as specifically
authorized in writing by a duly authorized officer of the Company other
than me. I understand that "Proprietary Information" means all information
pertaining in any manner to the business of the Company or its affiliates,
consultants, customers, business associates or members, unless (i) the
information is or becomes generally known to the public through lawful
means and through no fault of mine; (ii) the information was part of my
general knowledge prior to the initial disclosure of the information by the
Company or any person under a duty of confidentiality; or (iii) the
information is disclosed to me without restriction by a third party who
rightfully possesses the information and is under no duty of
confidentiality. This definition of "Proprietary Information" includes but
is not limited to any and all (a) technical or engineering information,
know-how, computer codes, programs, tools, data, designs, diagrams, plans,
specifications, trade secrets, inventions, concepts, structures,
improvements, products, patents pending, prototypes, processes, formulas,
algorithms, methods, techniques, works in process, systems, technologies or
applications; (b) financial and other information about costs, profits,
markets, sales, customers, subscribers, members, and bids; (c) plans for
business, marketing, future development and new product concepts; and (d)
employee personnel files and information about employee compensation and
benefits; in any form and whether or not labeled or identified as
confidential or proprietary. I agree that I will have the burden of proving
the applicability of any of the foregoing exceptions.
1.2 Location and Reproduction. I agree to maintain at my work station and/or
any other place under my control only such Proprietary Information as I
have a current "need to know." I agree to return to the appropriate person
or location or otherwise properly dispose of Proprietary Information once
that need to know no longer exists. I also agree not to make copies or
otherwise reproduce Proprietary Information unless there is a legitimate
business need for reproduction.
1.3 Prior Actions and Knowledge. Except as disclosed on Exhibit B-1 to this
Agreement, I have no knowledge about the Company's business or Proprietary
Information, other than information I have learned from the Company in the
course of being hired and employed.
1.4 Third Party Information. I recognize that the Company has received and will
receive confidential or proprietary information from third parties. I will
hold all such information in the strictest confidence and will not use the
information or disclose it to anyone (except
<PAGE>
as necessary in carrying out my work for the Company consistent with the
Company's agreement with such third party).
1.5 Interference with Business. I acknowledge that because of my position in
the Company, I will have access to the Company's confidential information
and trade secrets. I agree that during my employment with the Company and
for a period of one (1) year after termination of my employment with the
Company, I shall not directly or indirectly (i) divert or attempt to divert
from the Company (or any affiliate) any business of any kind, including
without limitation the solicitation of or interference with any of its
customers, clients, members, business partners or suppliers or (ii)
solicit, induce, recruit or encourage any person employed by the Company to
terminate his or her employment.
2. Inventions
2.1 Assignment of Inventions. I agree to assign and transfer to the Company,
without further consideration, my entire right, title and interest
(throughout Hong Kong, the United States and in all other countries or
jurisdictions), free and clear of all liens and encumbrances, in and to all
Inventions. Such assignment and transfer to the Company shall be continuous
during my employment as of the relevant time of development of each such
Invention. The Company may, in its sole discretion, agree to provide
consideration for certain Inventions through a written agreement between
the Company and the undersigned which specifically provides for such
consideration; in all other cases, no consideration shall be paid. The
Inventions shall be the sole property of the Company, whether or not
copyrightable or patentable or in a commercial stage of development. In
addition, I agree to maintain adequate and current written records on the
development of all Inventions, which shall also remain the sole property of
the Company.
2.2 Inventions. "Inventions" collectively means any and all ideas, concepts,
inventions, discoveries, developments, know-how, structures, designs,
formulas, algorithms, methods, products, processes, systems and
technologies in any stage of development that are conceived, developed or
reduced to practice by me alone or with others; any and all patents,
patents pending, copyrights, moral rights, trademarks and any other
intellectual property rights therein; and any and all improvements,
modifications, derivative works from, other rights in and claims related to
any of the foregoing under the laws of any jurisdiction; except Inventions
excluded in Exhibit B-1.
2.3 Moral Rights. To the extent allowed by law, this assignment of inventions
includes all rights of paternity, integrity, disclosure and withdrawal and
any other rights that may be known as or referred to as "moral rights,"
"artist's rights," "droit moral," or the like (collectively "Moral
Rights"). To the extent I retain any such Moral Rights under applicable
law, I hereby ratify and consent to any action that may be taken with
respect to such Moral Rights by or authorized by the Company and agree not
to assert any Moral Rights with respect thereto. I will confirm any such
ratifications, consents and agreements from time to time as requested by
the Company.
2.4 License for Other Inventions. If, in the course of my employment with the
Company, I incorporate into Company property an invention owned by me or in
which I have an
<PAGE>
interest, the Company is hereby granted a nonexclusive, royalty-free,
irrevocable, perpetual and transferable license throughout the universe to
make, use, import, sell, copy, distribute, display, perform (whether or not
publicly) such invention as part of and in connection with the Company
property.
2.5 Assist With Registration. In the event any Invention shall be deemed by the
Company to be copyrightable or patentable or otherwise registrable, I will
assist the Company (at its expense) in obtaining and maintaining letters
patent or other applicable registrations and in vesting the Company with
full title. Should the Company be unable to secure my signature on any
document necessary to apply for, prosecute, obtain, or enforce any patent,
copyright, or other right or protection relating to any Invention, due to
my in capacity or any other cause, I hereby irrevocably designate and
appoint the Company and each of its duly authorized officers and agents as
my agent and attorney-in-fact to do all lawfully permitted acts to further
the prosecution, issuance, and enforcement of patents, copyrights, or other
rights or protection with the same force and effect as if executed and
delivered by me.
2.6 Disclosure. I agree to disclose promptly to the Company all Inventions and
relevant records. I further agree to promptly disclose to the Company any
idea that I do not believe to be an Invention, but is conceived, developed,
or reduced to practice by me (alone or with others) while I am employed by
the Company or during the one-year period following termination of my
employment. I will disclose the idea, along with all information and
records pertaining to the idea, and the Company will examine the disclosure
in confidence to determine if in fact it is an Invention subject to this
Agreement.
2.7 Post-Termination Period. I agree that any idea, invention, writing,
discovery, patent, copyright, or trademark or similar item, or improvement
shall be presumed to be an Invention if it is conceived, developed, used,
sold, exploited, or reduced to practice by me or with my aid within one (1)
year after my termination of employment with the Company. I can rebut the
above presumption if I prove that the idea, invention, writing, discovery,
patent, copyright, or trademark or similar item, or improvement is not an
Invention covered by this Agreement.
3. Former or Conflicting Agreements
3.1 Former Agreements. I represent and warrant that my performance of the terms
of this Agreement will not breach any agreement to keep in confidence
proprietary information acquired by me prior to my employment by the
Company. I have listed in Exhibit B-1 all other agreements concerning
proprietary information or inventions to which I am a party and attached
copies of any agreements in my possession. To the best of my knowledge,
there is no other contract between me and any other person or entity that
is in conflict with this Agreement or concerns proprietary information,
inventions or assignment of ideas.
3.2 Prohibition on Use of Third Party Information. I represent and warrant and
covenant that I will not disclose to the Company, or use, or induce the
Company to use, any proprietary information or trade secrets of others at
any time, including but not limited to any proprietary information or trade
secrets of any former employer, if any. I acknowledge and agree that any
violation of this provision shall be grounds for my immediate
<PAGE>
termination and could subject me to substantial civil liabilities and
criminal penalties. I further specifically and expressly acknowledge that
no officer or other employee or representative of the Company has requested
or instructed me to disclose or use any such third party proprietary
information or trade secrets.
4. Termination
4.1 Return of the Company's Property. I agree to promptly return to the Company
upon termination of my employment all Proprietary Information and all
personal property furnished to or prepared by me in the course of or
incident to my employment. Following my termination, I will not retain any
written or other tangible material containing any Proprietary Information
or information pertaining to any Invention.
4.2 Termination Certificate. In the event of the termination of my employment,
I agree, if requested by the Company, to sign and deliver the Termination
Certificate attached as to the Employment Contract for Executives as
Exhibit A.
4.3 Subsequent Employers. I agree that after the termination of my employment
with the Company, I will not enter into any agreement that conflicts with
my obligations under this Agreement and will inform any subsequent
employers of my obligations under this Agreement.
5. No Implied Employment Rights
I recognize that nothing in this Agreement shall be construed to imply that
my employment is guaranteed for any period of time. Unless stated in a
written agreement signed by a duly authorized officer of the Company, my
employment is for an indefinite duration and at-will, and either the
Company or I can terminate our employment relationship at any time, without
notice and for any reason or no reason, with or without cause.
6. Remedies
I recognize that nothing in this Agreement is intended to limit any remedy
of the Company under any law concerning trade secrets. I recognize that my
violation of this Agreement could cause the Company irreparable harm and
agree that the Company shall have the right to apply to any court of
competent jurisdiction for an order restraining any breach or threatened
breach of this Agreement.
7. Assignment
I acknowledge and agree that my performance is personal hereunder, and that
I shall have no right to assign and shall not assign or purport to assign
any rights or obligations under this Agreement. This Agreement may be
assigned or transferred by the Company.
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8. Jurisdiction and Applicable Law
This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong, and the parties hereto submit to the non-exclusive
jurisdiction of the Hong Kong court.
9. Severability
Any provision of this Agreement that is invalid or unenforceable because of
any legislation or ruling of any court of competent jurisdiction shall not
render the whole Agreement void but shall only be:
(a) varied to such an extent so as to make it valid and enforceable
without affecting other provisions, or
(b) if variation is impossible, excluded from this Agreement as if it had
not existed at the time of signing of this Agreement while the other
provisions remain valid and subsisting.
10. Entire Agreement
This Agreement, along with any other agreements specifically referenced
herein including the Employment Contract, is intended to be the final,
complete, and exclusive statement of the terms of my employment by the
Company and may not be contradicted by evidence of any prior or
contemporaneous statements or agreements, except for agreements
specifically referenced herein. To the extent that the practices, policies
or procedures of the Company, now or in the future, apply to me and are
inconsistent with the terms of this Agreement, the provisions of this
Agreement shall control. The termination of any employment or other
agreement between the Company and me shall not terminate this Agreement and
each and all of the terms and conditions hereof shall survive and remain in
full force and effect.
11. Amendment; Waivers
This Agreement may be amended only a written agreement signed by me and a
duly authorized representative of the Company other than me. This Agreement
has been reviewed by me and the Company and shall be deemed to be the
product of the parties. Failure to exercise any right under this Agreement
shall not constitute a waiver of such right.
12. Interpretation
This Agreement shall be construed as a whole, according to its fair
meaning, and not in favor of or against any party. Sections and section
headings contained in this Agreement are for reference purposes only, and
shall not affect in any manner the meaning of interpretation of this
Agreement. Whenever the context requires, references to the singular shall
include the plural and the plural the singular and any gender shall include
any other gender.
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13. Binding Effect
Subject to the foregoing restrictions on assignment, this Agreement shall
inure to the benefit of the Company and its affiliates, officers,
directors, agents, successors and assigns; and shall be binding on me and
my heirs, devisees, spouses, agents, legal representatives and successors.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY NOTED ON EXHIBIT B-1 TO THIS AGREEMENT ANY PROPRIETARY INFORMATION,
IDEAS, PROCESSES, INVENTIONS, TECHNOLOGY, WRITINGS, PROGRAMS, DESIGNS, FORMULAS,
DISCOVERIES, PATENTS, COPYRIGHTS, OR TRADEMARKS, OR IMPROVEMENTS, RIGHTS, OR
CLAIMS RELATING TO THE FOREGOING, THAT I DESIRE TO EXCLUDE FROM THIS AGREEMENT.
Date: June 25, 2003
Michael Tong
-------------------------------------
Employee Name
/s/ Michael Tong
-------------------------------------
Employee Signature
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EXHIBIT B-1
EMPLOYEE'S DISCLOSURE
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1. Proprietary Information. Except as set forth below, I acknowledge that at
this time I know nothing about the business or Proprietary Information of
Company (the "Company"), other than information I have learned from the
Company in the course of being hired: _____________________________________
___________________________________________________________________________
2. Prior Inventions. Except as set forth below, there are no ideas, concepts,
inventions, discoveries, developments, know-how, structures, designs,
formulas, algorithms, methods, products, processes, systems and
technologies in any stage of development that are conceived, developed or
reduced to practice by me alone or with others; any patents, patents
pending, copyrights, moral rights, trademarks and any other intellectual
property rights therein; or any improvements, modifications, derivative
works from, other rights in and claims related to any of the foregoing
under the laws of any jurisdiction, that I wish to exclude from the
operation of this Agreement: ______________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
3. Prior Agreements. Except as set forth below, I am aware of no prior
agreements between me and any other person or entity concerning proprietary
information or inventions (attach copies of all agreements in your
possession):
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
Date: June 25, 2003
Michael Tong
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Employee Name
/s/ Michael Tong
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Employee Signature