EXHIBIT 4.5
BONSO ELECTRONICS INTERNATIONAL INC.
EMPLOYMENT AGREEMENT
WITH
XXX XXX XXXXX
This Employment Agreement is made and entered into effective this 1st day
of April, 2003, by and between Bonso Electronics International Inc., a British
Virgin Islands international business company (the "Company"), and Xxx Xxx
Xxxxx, an individual ("Executive").
RECITALS
A. The Company desires to be assured of the association and services of
Executive for the Company.
B. Executive is willing and desires to be employed by the Company, and the
Company is willing to employ Executive, upon the terms, covenants and conditions
hereinafter set forth.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms, covenants and
conditions hereinafter set forth, the parties hereto agree as follows:
1. Employment. The Company hereby employs Executive as its Director of
Engineering and Research and Development.
2. Term. The term of this Agreement shall be for a period of five (5) years
effective as of April 1, 2003, and ending on March 31, 2008 (the "Initial
Term"), unless terminated earlier pursuant to Section 6 below. This Agreement
shall be automatically renewed for successive one year periods (the "Renewal
Term") unless, at least 90 days prior to the expiration of the Initial Term or
any Renewal Term, either party gives written notice to the other party
specifically electing to terminate this Agreement at the end of the Initial Term
or any such Renewal Term.
3. Compensation; Reimbursement.
3.1 Base Salary. For all services rendered by Executive under this
Agreement, the Company shall pay Executive a base salary of Xxx Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxx Xxxxxx Dollars (US$150,000) per year (the "Base Salary"). The
Base Salary shall be payable in equal, consecutive monthly installments. Payment
of the Salary shall be subject to the customary withholding tax and other
employment taxes as required with respect to compensation paid by a corporation
to an employee in Hong Kong. It is expressly understood and agreed that the Base
Salary may be increased upon the approval of the Company's Compensation
Committee (if such a committee exists) or by a majority of the members of the
Board of Directors.
3.2 Bonus. In addition to the Base Salary and the Deferred Compensation,
the Company shall pay Executive such Bonus or Bonuses as the Board of Directors
shall determine in their sole discretion.
3.3 Additional Benefits. In addition to the Base Salary and the Bonus,
Executive shall be entitled to all other benefits of employment provided to the
employees of the Company.
3.4 Reimbursement. Executive shall be reimbursed for all reasonable
"out-of-pocket" business expenses for business travel and business entertainment
incurred in connection with the performance of his duties under this Agreement.
The reimbursement of Executive's business expenses shall be upon monthly
presentation to and approval by the Company of valid receipts and other
appropriate documentation for such expenses.
4. Scope of Duties.
4.1 Assignment of Duties. Executive shall have such duties as may be
assigned to him from time to time by the Company's Board of Directors
commensurate with his experience and responsibilities in the position for which
he is employed pursuant to Section 1 above. Such duties shall be exercised
subject to the control and supervision of the Board of Directors of the Company
and the Chief Executive Officer of the Company.
4.2 General Specification of Duties. Executive's duties shall include, but
not be limited to those duties that are generally associated with the position
of the Director of Finance of a company similarly situated to the Company.
The foregoing specification is not intended as a complete itemization of
the duties which Executive shall perform and undertake on behalf of the Company
in satisfaction of his employment obligations under this Agreement.
4.3 Executive's Devotion of Time. Executive hereby agrees to devote his
full time abilities and energy to the faithful performance of the duties
assigned to him and to the promotion and forwarding of the business affairs of
the Company, and not to divert any business opportunities from the Company to
himself or to any other person or business entity.
4.4 Conflicting Activities.
(a) Executive may, during the Initial Term or any Renewal Term of this
Agreement, be engaged in other business activities without the prior consent of
the Board of Directors of the Company; provided, however, that Executive may not
compete directly with the Company. Further, nothing in this Agreement shall be
construed as preventing Executive from investing his personal assets in passive
investments in business entities which are not in competition with the Company
or its affiliates, or from pursuing business opportunities as permitted by
Section 4.4(b).
(b) Executive hereby agrees to promote and develop all business
opportunities that come to his attention relating to current or anticipated
future business of the Company, in a manner consistent with the best interests
of the Company and with his duties under this Agreement. Should Executive
discover a business opportunity that does not relate to the current or
anticipated future business of the Company, he shall be free to pursue that
opportunity without first offering such opportunity to the Company. It is
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expressly understood that in developing any business opportunity for himself;
such development may not in any material way conflict or interfere with the
duties owed by Executive to the Company under this Agreement. As used herein,
the term "business opportunity" shall not include business opportunities
involving investment in publicly traded stocks, bonds or other securities, or
other investments of a personal nature.
5. Change of Control. If any time during the Initial Term or any Renewal
Term of this Agreement there is a change of control of the Company, as defined
below, and Executive's employment is terminated by the Company under Section
6.1(a), (b), (c) or (d) within the greater of one (1) year following the change
of control or the remaining term of this Agreement (the "Change of Control
Date"), the Company shall pay to Executive (a) the balance of all amounts due
from the Change of Control Date until the end of the Initial Term, including
deferred compensation, due under this Agreement plus (b) an amount equal to five
times the sum of (i) his annual Base Salary as in effect on the date of
termination plus (ii) the amount of bonus paid in the prior year to executive,
and (c) any other amounts due to Executive under any other provision of this
Agreement. This amount shall be paid to Executive in one lump sum as soon as
practicable, but in no event later than one hundred twenty (120) days, after the
date that Executive's employment is terminated. In addition to the lump sum
payment referenced in the preceding sentence, the Company shall pay to Executive
any accrued and unpaid Bonuses as provided for in Section 3.2 at the same time
as the lump sum payment is made. For example, if the Change of Control Date was
April 1, 2003, the amount paid to would be equal to [$150,000 (Base Salary) +
$0.00 (Deferred Compensation)] X 5 (years remaining on contract)] + [$150,000
(base salary) + $0.00 (deferred compensation) X 5] or an aggregate of
$1,500,000).
For purposes of this subsection, a Change of Control shall mean a change in
control of the Company of a nature that would be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended ("Exchange Act"), whether or not the
Company is subject to such reporting requirement; provided, however, that,
anything in this Agreement to the contrary notwithstanding, a Change in Control
shall be deemed to have occurred if:
(1) Any individual, partnership, firm, corporation, association, trust,
unincorporated organization or other entity or person, or any syndicate or
group deemed to be a person under Section 14(d)(2) of the Exchange Act, is
or becomes the "beneficial owner" (as defined in Rule 13d-3 of the General
Rules and Regulations under the Exchange Act), directly or indirectly, of
securities of the Company representing 30% or more of the combined voting
power of the Company's then outstanding securities entitled to vote in the
election of directors of the Company;
(2) During any period of two (2) consecutive years (not including any
period prior to the execution of this Agreement) individuals who at the
beginning of such period constituted the Board and any new directors, whose
election by the Board or nomination for election by the Company's
stockholders was approved by a vote of at least a majority of the directors
then still in office who either were directors at the beginning of the
period or whose election or nomination for election was previously so
approved, cease for any reason to constitute a majority thereof;
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(3) Within two years after a tender offer or exchange offer for voting
securities of the Company, the individuals who were directors of the
Company immediately prior thereto shall cease to constitute a majority of
the Board;
(4) There occurs a reorganization, merger, consolidation or other corporate
transaction involving the Company (a "Transaction"), in each case, with
respect to which the stockholders of the Company immediately prior to such
Transaction do not, immediately after the Transaction, own more than 50
percent of the combined voting power of the Company or other corporation
resulting from such Transaction; or
(5) All or substantially all of the assets of the Company are sold,
liquidated or distributed.
6. Termination.
6.1 Bases for Termination.
(a) Executive's employment hereunder may be terminated at any time by
mutual agreement of the parties.
(b) This Agreement shall automatically terminate on the last day of the
month in which Executive dies or becomes permanently incapacitated. "Permanent
incapacity" as used herein shall mean mental or physical incapacity, or both,
reasonably determined by the Company's Board of Directors based upon a
certification of such incapacity by, in the discretion of the Company's Board of
Directors, either Executive's regularly attending physician or a duly licensed
physician selected by the Company's Board of Directors, rendering Executive
unable to perform substantially all of his duties hereunder and which appears
reasonably certain to continue for at least six consecutive months without
substantial improvement. Executive shall be deemed to have "become permanently
incapacitated" on the date the Company's Board of Directors has determined that
Executive is permanently incapacitated and so notifies Executive. If Executive's
employment under this Agreement is terminated pursuant to this Section 6.1(b),
the Company shall (i) make a lump sum cash payment to Executive within 10 days
after termination is effective of an amount equal to (1) Executive's Base Salary
accrued to the date of termination; (2) unreimbursed expenses accrued to the
date of termination; and (3) any other amounts due to Executive under any other
provision of this Agreement. In addition, Company shall pay Executive or his
family (if Executive is deceased) an amount equal to Three times the Executive's
annual Base Salary within 60 days after termination is effective. For purposes
of this provision, Executive's annual Base Salary shall be calculated as of the
termination date.
(c) Executive's employment may be terminated by the Company (for any reason
or no reason at all) at any time by giving Executive 180 days prior written
notice of termination, which termination shall be effective on the 180th day
following such notice. If Executive's employment under this Agreement is so
terminated, the Company shall (i) make a lump sum cash payment to Executive
within 10 days after termination is effective of an amount equal to (1)
Executive's Base Salary accrued to the date of termination; (2) unreimbursed
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expenses accrued to the date of termination; (3) an amount equal to the greater
of (a) Five times the Executive's annual Base Salary (i.e., 60 months of Base
Salary), or (b) amounts remaining due to Executive as Base Salary (assuming that
payments under this Agreement were made until expiration of the Initial Term or
if applicable the Renewal Term), and (4) any other amounts due to Executive
under any other provision of this Agreement. For purposes of this provision,
Executive's annual Base Salary and the remaining portion of the term of the
Agreement shall be calculated as of the termination date. In addition to the
lump sum payment referenced in the preceding sentence, the Company shall pay to
Executive the Bonus provided for in Section 3.2 based upon the number of days in
the year that Executive was employed by the Company, within one hundred five
days after the end of the fiscal year in which Executive was terminated.
(d) Executive may terminate his employment hereunder by giving the Company
60 days prior written notice, which termination shall be effective on the 60th
day following such notice.
6.2 Payments Upon Termination Pursuant To Sections 6.1(a), or (d). Upon
termination under Sections 6.1(a), or (d), the Company shall pay to Executive
within 10 days after termination an amount equal to the sum of (1) Executive's
Base Salary accrued to the date of termination; (2) unreimbursed expenses
accrued to the date of termination, and (3) any other amounts due to Executive
under any other provision of this Agreement. Except for the foregoing
compensation then due and owing, the Company shall not be obligated to
compensate Executive, his estate or representatives after any such termination.
7. Miscellaneous.
7.1 Transfer and Assignment. This Agreement is personal as to Executive and
shall not be assigned or transferred by Executive without the prior written
consent of the Company. This Agreement shall be binding upon and inure to the
benefit of all of the parties hereto and their respective permitted heirs,
personal representatives, successors and assigns.
7.2 Severability. Nothing contained herein shall be construed to require
the commission of any act contrary to law. Should there be any conflict between
any provisions hereof and any present or future statute, law, ordinance,
regulation or other pronouncement having the force of law, the latter shall
prevail, but the provision of this Agreement affected thereby shall be curtailed
and limited only to the extent necessary to bring it within the requirements of
the law, and the remaining provisions of this Agreement shall remain in full
force and effect.
7.3 Governing Law. This Agreement is made under and shall be construed
pursuant to the laws of Hong Kong.
7.4 Counterparts. This Agreement may be executed in several counterparts
and all documents so executed shall constitute one agreement, binding on all of
the parties hereto, notwithstanding that all of the parties did not sign the
original or the same counterparts.
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7.5 Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements and understandings
with respect thereto. No representation, promise, inducement, statement or
intention has been made by any party hereto that is not embodied herein, and no
party shall be bound by or liable for any alleged representation, promise,
inducement or statement not so set forth herein.
7.6 Modification. This Agreement may be modified, amended, superseded or
cancelled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
party or parties to be bound by any such modification, amendment, supersession,
cancellation or waiver.
7.7 Attorneys' Fees and Costs. In the event of any dispute arising out of
the subject matter of this Agreement, the prevailing party shall recover, in
addition to any other damages assessed, its attorneys' fees and court costs
incurred in litigating or otherwise settling or resolving such dispute whether
or not an action is brought or prosecuted to judgment. In construing this
Agreement, none of the parties hereto shall have any term or provision construed
against such party solely by reason of such party having drafted the same.
7.8 Waiver. The waiver by either of the parties, express or implied, of any
right under this Agreement or any failure to perform under this Agreement by the
other party, shall not constitute or be deemed as a waiver of any other right
under this Agreement or of any other failure to perform under this Agreement by
the other party, whether of a similar or dissimilar nature.
7.9 Cumulative Remedies. Each and all of the several rights and remedies
provided in this Agreement, or by law or in equity, shall be cumulative, and no
one of them shall be exclusive of any other right or remedy, and the exercise of
any one or such rights or remedies shall not be deemed a waiver of, or an
election to exercise, any other such right or remedy.
7.10 Headings. The section and other headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement.
7.11 Notices. Any notice under this Agreement must be in writing, may be
telecopied provided that evidence of the transmission and receipt is created at
the time of transmission, sent by express 24-hour guaranteed courier, or
hand-delivered, or may be served by depositing the same in the United States
mail, addressed to the party to be notified, postage-prepaid and registered or
certified with a return receipt requested. The addresses of the parties for the
receipt of notice shall be as follows:
If to the Company: Bonso Electronics International Inc.
If to Executive: Xxx Xxx Xxxxx
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Each notice given by registered or certified mail shall be deemed delivered and
effective on the date of delivery as shown on the return receipt, and each
notice delivered in any other manner shall be deemed to be effective as of the
time of actual delivery thereof. Each party may change its address for notice by
giving notice thereof in the manner provided above.
7.12 Survival. Any provision of this Agreement which imposes an obligation
after termination or expiration of this Agreement shall survive the termination
or expiration of this Agreement and be binding on Executive and the Company.
7.13 Right of Set-Off. Upon termination or expiration of this Agreement,
the Company shall have the right to set-off against the amounts due Executive
hereunder the amount of any outstanding loan or advance from the Company to
Executive.
7.14 Effective Date. This Agreement shall become effective as of the date
set forth on page 1 when signed by Executive and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Employment
Agreement to be executed as of the date first set forth above.
XXX XXX XXXXX XXXXX ELECTRONICS INTERNATIONAL INC.
/s/ Xxx Xxx Xxxxx By: /s/ Xxxxxxx So
----------------- ------------------
Xxxxxxx So, Chief Executive Officer
and Director
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