Executive Service Agreement - Xinhua Finance Media Ltd.
XINHUA FINANCE MEDIA LIMITED
AND
[____________________________________]
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EXECUTIVE SERVICE AGREEMENT
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DATE: ___________________,
PARTIES:-
(1) XINHUA FINANCE MEDIA LIMITED, a company incorporated in the Cayman Islands
with its registered office at Codan Trust Company (Cayman) Limited, Century
Yard, Cricket Square, Hutchins Drive, PO Box 2681 GT, George Town, Grand
Cayman, Cayman Islands, British West Indies (the "Company");
and
(2) [________________________].
(the "Executive").
RECITALS:
The Company has agreed to employ the Executive and the Executive has agreed to
serve the Company as [POSITION] on the following terms and conditions.
TERMS AGREED:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement where the context so admits the following words and
expressions shall have the following meanings:
"ASSOCIATED COMPANY" means in relation to the Company, any subsidiary or
holding company of the Company, any subsidiary of such
holding company, and any company in which the Company or
any such holding company holds or controls directly or
indirectly not less than 20% of the issued share capital;
"BOARD" means the board of directors of the Company from time to
time;
"US$" means the lawful currency of the United States of
America;
"HONG KONG" means the Hong Kong Special Administrative Region of the
People's Republic of China.
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1.2 Terms defined in Section 2 of the Companies Ordinance shall in this
Agreement have the meanings ascribed to them in that section.
1.3 All references in this Agreement and the Schedule attached hereto to the
Company or any Associated Companies shall include their successors in title
or assigns.
1.4 References herein to Clauses and the Schedules are references to the
clauses and the schedules of this Agreement which shall be deemed to form
part of this Agreement. The headings in this Agreement are inserted for
convenience of reference only and do not affect the interpretation hereof.
2. EMPLOYMENT
The Company shall employ the Executive and the Executive shall serve the
Company as [POSITION] on and subject to the terms and conditions specified
herein.
3. COMMENCEMENT
3.1 The Executive agrees that he/she will commence in the employ of the Company
on [DATE].
3.2 The first three (3) months of the Executive's employment shall be
considered a probationary period and shall be terminable in accordance with
Clause 12 below.
4. DUTIES
4.1 Subject to Clause 6.1 below, the Executive shall be employed in the
position of [POSITION] in which capacity he/she shall devote all his/her
time, attention and skill to his/her duties hereunder, and shall at all
times act in the interests of the Company and its Associated Companies, and
shall faithfully and diligently perform such duties and exercise such
powers consistent therewith as may from time to time be assigned to or
vested in him/her by the Chief Executive Officer ("CEO") of the Company.
The Executive agrees to refer all business opportunities falling within the
scope of the Company's operations to the CEO of the Company.
4.2 The Company reserves the right to assign to the Executive duties of a
different nature either additional to or instead of those referred to in
Clause 4.1 above.
4.3 The Executive shall obey the reasonable and lawful orders of the CEO of the
Company, given by or with the authority of the Board, and shall comply with
all the Company's rules, regulations, policies and procedures from time to
time in force, including without limitation the provisions of the Staff
Handbook (as amended from time to time).
4.4 The Executive may be required in pursuance of his/her duties to perform
services not only for the Company but also for any Associated Company and,
without further remuneration (except as otherwise agreed), to accept any
such office or position in
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any Associated Company which is consistent with his/her position with the
Company, as the CEO of the Company may from time to time reasonably
require.
4.5 The Executive will keep the CEO of the Company promptly and fully informed
(in writing if so requested) of his/her conduct of the business or affairs
of the Company and any Associated Company and provide such explanations as
the CEO of the Company may require in connection therewith.
5. PLACE OF WORK/SECONDMENT
5.1 The Executive's place of work shall be SHANGHAI, CHINA, or any such place
as both parties shall from time to time agree mutually. In the performance
of his/her duties hereunder, the Executive may be required to travel both
throughout and outside Asia.
5.2 The Executive acknowledges and agrees the Company may from time to time
transfer or second his/her services to any Associated Company as part of
any reorganization or otherwise and either permanently or temporarily.
6. EXCLUSIVITY OF SERVICE/CONFLICTS
6.1 During the period of the Executive's employment hereunder the Executive
shall devote such of his/her time and attention to his/her duties hereunder
as is required to fulfill those duties and he/she shall not (without the
prior written consent of the CEO of the Company, which consent shall not be
unreasonably withheld) directly or indirectly either on his/her own account
or on behalf of any other person, company, business entity or other
organization:
6.1.1 (i) engage in, or (ii) be concerned with, or (iii) provide services
to, (whether as an employee, officer, director, agent, partner,
consultant or otherwise) any other business; or
6.1.2 accept any other engagement or public office;
PROVIDED THAT the Executive may hold securities in a company which is
quoted on any recognized Stock Exchange or in a private company provided
that the CEO of the Company has given his/her written consent (which
consent shall not be unreasonably withheld); and
6.2 Subject to any written regulations issued by the Company which are
applicable to him/her, neither the Executive nor any member of his/her
family, nor any company or business entity in which he/she or they are
interested, shall be entitled to receive or obtain directly or indirectly
any discount, rebate, commission or other benefit in respect of any
business transacted (whether or not by the Executive) by or on behalf of
the Company or any Associated Company, and if the Executive, any member of
his/her family or any company or business entity in which he/she or they
is/are interested, shall directly or indirectly obtain any such discount,
rebate, commission or other benefit the Executive shall forthwith account
to the Company or the applicable Associated Company for the amount received
or value of the benefit so obtained.
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6.3 The Executive confirms that he/she has disclosed fully to the Company all
circumstances in respect of which there is, or there might be, a conflict
of interest between the Company or any Associated Company, and the
Executive or any member of his/her family, and he/she agrees to disclose
fully to the Company any such circumstances which may arise during the
Employment.
7. REMUNERATION
The remuneration of the Executive shall be:
(a) a monthly salary of US$[___________] (pre-tax) payable in arrears
such salary to include any sum receivable as director's fees or other
remuneration from any Associated Company. This salary will be reviewed
by the Compensation Committee of the Company each year at the time of
the annual salary reviews for senior executives without any
undertaking by the Company that the Executive's salary shall be
automatically increased.
(b) a discretionary New Year Bonus (pro-rata according to the length of
services in a year) subject to such conditions as the Compensation
Committee of the Company may in its absolute discretion decide.
(c) a discretionary bonus of such amounts (if any) at such times and
subject to such conditions as the Compensation Committee of the
Company may in its absolute discretion decide. The Executive will not
be eligible to be considered for such a bonus if he/she has left the
employment of the Company or is serving out any notice given to
him/her by the Company to terminate his/her employment at the date
when the Company's annual bonuses are declared.
8. OTHER BENEFITS
8.1 In addition to the foregoing remuneration and benefits, the Executive shall
also be entitled to the following, subject to determination by the
Compensation Committee of the Company as to the appropriate level of cost
of each item:
(a) the provision of medical, dental, and travel insurance under such
insurance scheme as the Compensation Committee may decide from time to
time at the expense of the Company for the benefit of the Executive,
his/her spouse and dependant children under the age of 18;
(b) participation in any share option scheme which may be adopted by the
Company, subject to the terms and conditions of such scheme from time
to time in place;
8.2 Details of the scheme(s) referred to in Clauses 8.1(a) and (b) above can be
obtained from the HR Department. The Company reserves the right to
terminate or substitute
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other scheme(s) for such scheme(s) or amend the scale of benefits of such
scheme(s) including the level of benefits. If any scheme provider
(including but not limited to any insurance company) refuses for any reason
(whether based on its own interpretation of the terms of the insurance
policy or otherwise) to provide any benefits to the Executive, the Company
shall not be liable to provide any such benefits itself or any compensation
in lieu thereof.
9. EXPENSES
The Company shall reimburse the Executive (against receipts or other
satisfactory evidence) for all reasonable expenses properly incurred in the
course of his/her employment hereunder or in promoting or otherwise in
connection with the business of the Company subject to the Company's rules
and policies relating to expenses.
10. DEDUCTIONS
The Company shall, to the extent permitted by Chapter 57 s.32 of the
Employment Ordinance of the Laws of Hong Kong, be entitled to deduct from
the Executive's remuneration hereunder any monies due from him/her to the
Company or any Associated Company 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/her (and of recovering the same) and
any other monies owed by him/her to the Company or any Associated Company.
11. LEAVE
11.1 The Executive shall be entitled to [________] working days' annual leave
(in addition to statutory holidays of CHINA) with full pay for completion
of each year of service with the Company, which leave shall be taken at
such time or times as may be agreed with the CEO.
11.2 Unused annual leave may not be carried forward without the approval of CEO
of the Company or such other person assigned by the Company from time to
time. Failure to take holiday entitlement in the appropriate holiday year
will lead to forfeiture of any accrued holiday not taken without any right
to payment in lieu thereof.
12. TERMINATION
12.1 During the probationary period, the Executive's employment may be
terminated by either party on not less than ONE MONTH'S written notice or
payment of salary in lieu thereof. Your employment after probation may be
terminated by either party by giving the other party [________] month's
written notice (the "notice period") or payment in lieu of salary for the
notice period in lieu of notice.
12.2 If at any time during the term of his/her employment hereunder the
Executive shall:
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12.2.1 be guilty of fraud or other gross misconduct, or gross incompetence
or habitual neglect of duty, or commit any other serious breach of
this Agreement; or
12.2.2 be convicted of any criminal offence involving his/her integrity or
honesty; or
12.2.3 refuse to carry out any reasonable lawful order given to him/her by
the CEO in the course of his/her employment or fail diligently to
attend to his/her duties hereunder; or
12.2.4 be guilty of continuing unsatisfactory conduct or poor performance
of his/her duties, after having received a written warning from the
Company relating to the same; or
12.2.5 resign as a director of the Company or any Associated Company
(without the CEO's written consent); or
12.2.6 be or become prohibited by law from being a director; or
12.2.7 directly or indirectly advise or participate or act in concert
(within the meaning of the Hong Kong Codes on Take-Overs and Mergers
and Share Repurchases) with any person who makes or is considering
making any offer for the issued share capital of the Company; or
12.2.8 be in breach of any of the provisions of the Compensation Share
Agreement;
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 payment whatsoever (other than
in respect of unpaid salary and unused annual leave actually accrued) or to
claim any compensation or damages in respect of such termination.
12.3 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/her employment hereunder and
concerning the business, finances or affairs of any Associated Company. 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
Associated Company.
12.4 The Executive acknowledges that the Company may, during all or any part of
any period of notice whether given by the Company or the Executive to
terminate the Executive's employment under this Agreement require the
Executive not to attend work and/or not to undertake all or any of his/her
duties and/or exclude him/her from any premises of the Company, provided
that for the avoidance of doubt during such period the Executive shall
continue to receive salary and other contractual benefits provided by this
Agreement.
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12.5 The Executive agrees that he/she will not at any time after the termination
of the Employment represent him/herself as still having any connection with
the Company or any Associated Company, save as a former employee for the
purpose of communicating with prospective employers or complying with any
applicable statutory requirements.
13. DIRECTORSHIPS
13.1 The Executive shall forthwith resign in writing from all directorships,
trusteeships and other offices he/she may hold from time to time with the
Company or any Associated Company without compensation for loss of office
in the event of:-
13.1.1 the termination of his/her employment; or
13.1.2 either the Company or the Executive serving on the other notice of
termination of his/her employment.
13.2 In the event of the Executive failing to comply with his/her obligations
under Clause 13.1 above, he/she hereby irrevocably and unconditionally
authorizes the Company to appoint some person in his/her name and on
his/her behalf to sign or execute any documents and/or do all things
necessary or requisite to give effect to such resignations as referred to
in Clause 13.1 above.
14. REASONABLENESS OF RESTRICTIONS
The Executive recognizes that, whilst performing his/her duties for the
Company, he/she will have access to and come into contact with trade
secrets and confidential information belonging to the Company or to
Associated Companies and will obtain personal knowledge of and influence
over its or their customers and/or employees. The Executive therefore
agrees that the restrictions contained or referred to in Clauses 15 and 16
and Schedule 1 are reasonable and necessary to protect the legitimate
business interests of the Company and the Associated Companies both during
and after the termination of his/her employment.
15. CONFIDENTIALITY
15.1 The Executive shall neither during the Employment (except in the proper
performance of his/her duties) nor at any time (without limit) after the
termination thereof, directly or indirectly
15.1.1 use for his/her own purposes or those of any other person, company,
business entity or other organization whatsoever; or
15.1.2 disclose to any person, company, business entity or other
organization whatsoever; any trade secrets or confidential information
relating or belonging to the Company or any Associated Company
including but not limited to any such information relating to
customers, customer lists or
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requirements, price lists or pricing structures, sales and marketing
information, business plans or dealings, employees or officers, source
codes and computer systems, software, financial information and plans,
designs, formulae, prototypes, product lines, services, research
activities, any document marked 'Confidential' (or with a similar
expression), or any information which the Executive has been told is
confidential or which he/she might reasonably expect the Company would
regard as confidential, or any information which has been given to the
Company or any Associated Company in confidence by customers,
suppliers or other persons.
15.2 The Executive shall not at any time during the continuance of his/her
employment with the Company make any notes or memoranda relating to any
matter within the scope of the Company's business, dealings or affairs
otherwise than for the benefit of the Company or any Associated Company.
15.3 The obligations contained in Clause 15.1 shall cease to apply to any
information or knowledge which may subsequently come into the public domain
after the termination of employment other than by way of unauthorized
disclosure.
15.4 The Executive shall not make or communicate any statement (whether written
or oral) to any representative of the press, television, radio, or other
media and shall not write any article for the press or otherwise for
publication on any matter relating to the business of the Company or any
Associated Company without obtaining the prior written approval of the CEO
of the Company. Moreover, the Executive shall give at least seven (7) days'
prior notice of any event in which the Executive will be named and which
will be publicized or have any impact on the Company.
16. COPYRIGHT, INVENTIONS AND PATENTS
16.1 The Executive will promptly disclose to the Company and to no one else all
copyright works or designs originated, conceived, written or made by
him/her alone or with others (except only those works originated,
conceived, written or made by him/her wholly outside his/her normal working
hours and which are wholly unconnected with his/her employment).
16.2 All records, documents, papers (including copies and summaries thereof) and
other copyright protected works made or acquired by him/her in the course
of his/her employment shall, together with all the worldwide copyright and
design rights in all such works, be and at all times remain the absolute
property of the Company.
16.3 The Executive hereby irrevocably and unconditionally waives in favour of
the Company all rights granted by the Copyright, Designs and Patents Act
1988 (as amended in connection with his authorship of any copyright works
in the course of his employment with the Company, including without
limitation any moral rights and any right to claim an additional payment
with respect to use or exploitation of those works.
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16.4 The Executives agree that (i) his/her wages are full compensation for
his/her services and all present and future uses of copyright works made by
him/her in the course of his/her employment; and (ii) the Executive will
not make any claims against the company or any Associated Company with
respect to those copyright works.
16.5 If, at any time during the Executive's employment under this Agreement,
he/she (whether alone or with any other person or persons) shall make any
invention which relates either directly or indirectly to the business of
the Company or any Associated Company, he/she will promptly disclose to the
Company and no-one else full details, including drawings and models, of
such invention so that the Company may determine, whether or not it is a
Company Invention.
16.6 If the Executive makes any inventions that do not belong to the Company
under the Patents Ordinance 1997, he agrees that he will forthwith
exclusively license or assign (as determined by the Company) to the Company
his rights in relation to such inventions and will deliver to the Company
all documents and other materials relating to them. The Company will pay to
the Executive such compensation for the license or assignment as the
Company will determine in its absolute discretion, subject to the Patents
Ordinance.
16.7 The Executive will, at the request and expense of the Company both during
and after the termination of his/her employment under this Agreement, do
all things necessary or desirable to perfect the rights of the Company
under this Clause 16.
17. POST-TERMINATION OBLIGATIONS
17.1 The Executive agrees that he/she will observe the post-termination
obligations set out in Schedule 1.
17.2 The Executive agrees that in the event of receiving from any person,
company, business entity or other organization an offer of employment
either during the continuance of this Agreement or during the continuance
in force of any of the restrictions set out in Schedule 1 annexed hereto,
he/she will forthwith provide to such person, company, business entity or
other organization making such an offer of employment a full and accurate
copy of this Agreement signed by the parties hereto.
18. COMPANY POLICIES
18.1 The Company is an equal opportunity employer and does not permit
discrimination or harassment on the ground of sex, pregnancy, marital or
family status or disability. The Company's Equal Opportunities Policy and
Harassment Policy are detailed in the Staff Handbook.
18.2 The Company complies with its statutory obligations regarding the personal
data of its employees. The Company's Privacy Policy is detailed in the
Staff Handbook.
18.3 The Executive agrees to comply with the Company's Internet and Computer
Policy. The Company's Internet and Computer Policy are detailed in the
Staff Handbook.
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19. WARRANTY
The Executive represents and warrants that he/she is not prevented by any
agreement, arrangement, contract, understanding, court order or otherwise,
which in any way directly or indirectly restricts or prohibits him/her from
fully performing the duties of his/her employment hereunder, or any of
them, in accordance with the terms and conditions of this Agreement.
20. NOTICES
20.1 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 fax number set out below (or such other address or fax
number as the addressee has by five days' prior written notice specified to
the other party):
To the Company: Xinhua Finance Media Limited
Attention: Ms. Fredy Bush
Address: 3905-09 1 Grand Gateway, 1 Hong Qiao Lu,
shanghai PRC, 200030
Fax number: +86 (21) 6448 4955
To the Executive:
Attention: __________________________
Address: ________________________________________________
________________________________________________
20.2 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, when actually delivered to the relevant address; and (b) if given
or made by fax, when dispatched subject to receipt of machine-printed
confirmation of error-free dispatch.
20.3 Any notice to be given hereunder may be delivered (a) in the case of the
Company by first class post addressed to its Registered Office for the time
being and (b) in the case of the Executive, either to him/her personally or
by first class post to his/her last known address.
21. MISCELLANEOUS
21.1 The various provisions and sub-provisions of this Agreement and the
Schedule are severable and if any provision or sub-provision is held to be
unenforceable by any court of competent jurisdiction then such
unenforceability shall not affect the enforceability of the remaining
provisions or sub-provisions in this Agreement or the Schedule.
21.2 The benefit of each agreement and obligation of the Executive under Clause
15 and Schedule 1 may be assigned to and enforced by all successors and
assigns for the time being of the Company and each Associated Company and
such agreements and obligations shall operate and remain binding
notwithstanding the termination of this Agreement.
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21.3 This Agreement cancels and is in substitution for all previous letters of
engagement, agreements and arrangements (whether oral or in writing)
relating to the subject-matter hereof between the Company and the Executive
all of which shall be deemed to have been terminated by mutual consent.
This Agreement constitutes the entire terms and conditions of the
Executive's employment and no waiver or modification thereof shall be valid
unless in writing, signed by the parties and only to the extent therein set
forth.
21.4 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.
21.5 This Agreement shall be governed by and construed in accordance with Hong
Kong law and the parties hereby irrevocably submit to the non-exclusive
jurisdiction of the Hong Kong courts.
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SIGNED by the parties on the date first above written.
For and on behalf of
XINHUA FINANCE MEDIA LIMITED
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Fredy Bush, Chief Executive Officer
in the presence of:
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SIGNED AND DELIVERED
AS A DEED by
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[ ]
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in the presence of:
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SCHEDULE 1
POST-TERMINATION RESTRICTIONS
1. NON-COMPETITION
The Executive hereby agrees that he/she shall not (without the written
consent of the CEO of the Company) for the Relevant Period within the
Prohibited Area and whether on his/her own behalf or in conjunction with or
on behalf of any other person, firm, company or other organization, (and
whether as an employee, director, principal, agent, consultant or in any
other capacity whatsoever,) in competition with the Company, directly or
indirectly (i) be employed or engaged in, or (ii) perform services in
respect of, or (iii) be otherwise concerned with:-
1.1 the research into, development, manufacture, supply or marketing of any
product which is of the same or similar type to any product researched, or
developed, or manufactured, or supplied, or marketed by the Company during
the 12 months immediately preceding the Termination Date;
1.2 the development or provision of any services (including but not limited to
technical and product support, or consultancy or customer services) which
are of the same or similar type to any services provided by the Company
during the 12 months immediately preceding the Termination Date;
PROVIDED ALWAYS that the provisions of this paragraph 1 shall apply only in
respect of products or services with which the Executive was either
personally concerned or for which he/she was responsible whilst employed by
the Company during the 12 months immediately preceding the Termination
Date.
2. NON-SOLICITATION OF CUSTOMERS
The Executive hereby agrees that he/she shall not for the Relevant Period
whether on his/her own behalf or in conjunction with or on behalf of any
person, company, business entity or other organization (and whether as an
employee, director, principal, agent, consultant or in any other capacity
whatsoever), directly or indirectly (i) solicit or, (ii) assist in
soliciting, or (iii) accept, or (iv) facilitate the acceptance of, or (v)
deal with, in competition with the Company, the custom or business of any
Customer or Prospective Customer:-
2.1 with whom the Executive has had material contact or dealings on behalf of
the Company during the 12 months immediately preceding the Termination
Date; or
2.2 for whom the Executive was, in a client management capacity on behalf of
the Company, directly responsible during the 12 months immediately
preceding the Termination Date.
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3. NON-SOLICITATION OF EMPLOYEES
The Executive hereby agrees that he/she will not for the Relevant Period
either on his/her own behalf or in conjunction with or on behalf of any
other person, company, business entity, or other organization (and whether
as an employee, principal, agent, consultant or in any other capacity
whatsoever), directly or indirectly:-
3.1 (i) induce, or (ii) solicit, or (iii) entice or (iv) procure, any person
who is a Company Employee to leave the Company's or any Associated
Company's employment (as applicable) where that person is a Company
Employee on the Termination Date;
3.2 be personally involved to a material extent in (i) accepting into
employment or (ii) otherwise engaging or using the services of, any person
who is a Company Employee on the Termination Date.
4. INTERFERENCE WITH SUPPLIERS
The Executive hereby agrees that he/she shall not (i) for the Relevant
Period, and (ii) in relation to any contract or arrangement which the
Company has with any Supplier for the exclusive supply of goods or services
to the Company and/or to its Associated Companies, for the duration of such
contract or arrangement, whether on his/her own behalf or in conjunction
with or on behalf of any person, company, business entity or other
organization, (and whether as an employee, director, agent, principal,
consultant or in any other capacity whatsoever), directly or indirectly:
4.1 interfere with the supply of goods or services to the Company from any
Supplier;
4.2 induce any Supplier of goods or services to the Company to cease or decline
to supply such goods or services in the future.
5. ASSOCIATED COMPANIES
5.1 The provisions of paragraphs 5.2 and 5.3 below shall only apply in respect
of those Associated Companies (i) to whom the Executive gave his/her
services, or (ii) for whom he/she was responsible, or (iii) with whom
he/she was otherwise concerned, in the 12 months immediately preceding the
Termination Date.
5.2 Paragraphs 1, 2, 3, 4 and 6 in this Schedule 1 shall apply as though
references to the "Associated Company" were substituted for references to
the "Company". The obligations undertaken by the Executive pursuant to this
Schedule shall, with respect to each Associated Company, constitute a
separate and distinct covenant and the invalidity or unenforceability of
any such covenant shall not affect the validity or enforceability of the
covenants in favour of the Company or any other Associated Company.
5.3 In relation to each Associated Company referred to in paragraphs 5.1 and
5.2 above, the Company contracts as trustee and agent for the benefit of
each such Associated Company. The Executive agrees that, if required to do
so by the Company, he/she will enter into covenants in the same terms as
those set out in paragraphs 1, 2, 3, 4 and 6 hereof directly with all or
any of such Associated Companies, mutatis mutandis. If the Executive fails,
within 7 days of receiving such a request from the Company, to sign
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the necessary documents to give effect to the foregoing, the Company shall
be entitled, and is hereby irrevocably and unconditionally authorised by
the Executive, to execute all such documents as are required to give effect
to the foregoing, on his/her behalf.
6. DEFINITIONS
For the purposes of this Schedule, the following words and expressions
shall have the meanings set out below:
6.1 "Associated Company", "Board", and "Company" shall have the meanings set
out in the Agreement attached hereto, and shall include their successors in
title and assigns (as applicable).
6.2 "Company Employee" means any person who was employed by (i) the Company or
(ii) any Associated Company, for at least 3 months prior to and on the
Termination Date and
6.2.1 with whom the Executive had material contact or dealings in
performing his/her duties of his/her employment; or
6.2.2 who had material contact with customers or suppliers of the Company
in performing his/her duties of employment with the Company or any
Associated Company (as applicable); or
6.2.3 who had access to confidential information during his/her employment
with the Company or any Associated Company (as applicable).
6.3 "Customer" shall mean any person, firm, company or other organisation
whatsoever to whom the Company has supplied goods or services.
6.4 "Prohibited Area" means:
6.4.1 Hong Kong Special Administrative Region; and the People's Republic of
China
6.4.2 any other country in the world where, on the Termination Date, the
Company develops, sells, supplies, manufactures or researches its
products or services or where the Company is intending within 3 months
following the Termination Date to develop, sell, supply or manufacture
its products or services and in respect of which the Executive has
been responsible (whether alone or jointly with others), concerned or
active on behalf of the Company during any part of the 12 months
immediately preceding the Termination Date.
6.5 "Prospective Customer" shall mean any person, firm, company or other
organisation with whom the Company has had any negotiations or material
discussions regarding the possible supply of goods or services by the
Company.
6.6 The "Relevant Period" shall mean the lesser of:-
6.6.1 the 12 months immediately following the Termination Date;
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6.6.2 the period specified in Clause 6.6.1 above less the number of days on
which the Executive has been required by the Company (pursuant to
Clause 12.5) both not to attend at work and not to perform any duties
of employment.
6.7 "Supplier" means any person, company, business entity or other organisation
whatsoever who:
6.7.1 has supplied goods or services to the Company during any part of the
12 months immediately preceding the Termination Date; or
6.7.2 has agreed prior to the Termination Date to supply goods or services
to the Company to commence at any time in the 12 months following the
Termination Date; or
6.7.3 as at the Termination Date, supplies goods or services to the Company
under an exclusive contract or arrangement between that Supplier and
the Company.
6.8 "Termination Date" shall mean the date upon which the Executive's
employment with the Company terminates.
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