Exhibit 10.3.1
SERVICE AGREEMENT
THIS AGREEMENT is dated as of the 8th day of August 2001.
BETWEEN:
(1) First Xxxx.xxx, Inc., a company formed under the laws of the State of
Nevada, United States of America, and having its registered office at
Xxxxx 000, 00 Xxxx Xxxxxxx Xxxxxx, Xxxx, Xxxxxx, XXX 00000 (the
"Company"); and
(2) Xxxxxxx X.X. Xxxxxxx, whose address is Xxxxx 0000 Xxxxxx Xxxxx, Xxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxx, Xxxx Xxxx (the "Executive").
AGREED as follows:-
1. Appointment
1.1 Subject to the terms of this agreement, the Company shall employ the
Executive and the Executive shall serve the Company as its Chief Financial
Officer from 1 September 2001 to 31 August 2002.
1.6 The duration of this agreement may be extended by the Company giving not
less than 60 days prior notice to the Executive and on terms mutually
agreed between the Company and the Executive, but such terms shall not be
less favourable to the Executive than those in this agreement.
1.7 As from 1 September 2001, this agreement shall supersede any previous
agreement relating to the employment of the Executive by the Company or
its Affiliates. For the sake of clarity, all the Executive's rights,
benefits and other entitlements accrued prior to 1 September 2001 under
such previous agreement shall not be affected by this agreement. If there
is any conflict or inconsistency between this agreement and any such
previous agreement, this agreement shall prevail. However, the Company
shall recognize and provide full credit for all of the Executive's period
of service with the Company or its Affiliates commencing 1 July 2000 in
relation to all rights, entitlements or benefits which are calculated with
reference to the Executive's period of service with the Company or its
Affiliates.
2. Duties
2.1 During his employment the Executive shall:-
(a) perform in Hong Kong, to the best of his ability and with all
reasonable care, the duties and exercise the powers and functions
which from time to time may reasonably be assigned to or vested in
him by the Board in relation to the Company and any of its
Affiliates;
(b) during working hours devote the whole of his time and attention to
his duties;
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(c) comply with all reasonable requests, instructions and regulations
made by the Board and provide such explanations, information and
assistance as to his activities or the business of the Company as
the Board may reasonably require;
(d) faithfully and loyally serve the Company to the best of his ability
and use his utmost endeavours to promote its interests and those of
its Affiliates; and
(e) not be engaged or interested directly or indirectly in any other
employment, trade, business, profession or occupation unless such
activities have been disclosed to the Board and do not breach any of
the provisions in this agreement.
2.2 The Executive shall generally be in the office or undertaking Company
business during normal office hours. The Executive shall also work such
further hours (without any additional remuneration) as may be necessary
for the proper performance of his duties.
3. Remuneration and Benefits
3.8 Basic Remuneration
As remuneration for the Executive's services, the Company shall pay to the
Executive a Basic Remuneration of HK$75,000 per month payable in arrears
on or before the last day of each calendar month (or if that day is not a
Business Day, on the next preceding Business Day). The Board shall have
complete discretion whether to grant any increase and any increase so
granted shall take effect from such date as the Board may specify.
3.9 Housing
The Company may at the request of the Executive pay a portion of the
Executive's Basic Remuneration by way of rental reimbursement. Any amounts
paid by the Company for such rental reimbursement shall be credited
against or deducted from the Basic Remuneration.
3.10 Year-End Payment
The Company shall pay to the Executive one months' Basic Remuneration per
calendar year of service as a year-end payment ("Year-End Payment"). If
the Executive does not serve the Company for the whole of any particular
year, the Executive shall be entitled to a rateable proportion of the
Year-End Payment, unless this agreement is terminated by the Executive, or
by the Company in accordance with Clause 9.1.
3.11 End of Contract Payment
Provided that neither the Executive has terminated this agreement nor the
Company has terminated this agreement pursuant to Clause 9.1, in either
case on or before 31 August 2002, and this agreement is not extended, the
Company shall pay to the Executive three months' Basic Remuneration on
termination of this agreement as end of contract payment.
3.12 Tickets
Upon termination of this agreement, the Company shall forthwith provide
the Executive with two (2) business class airline tickets for return
travel from Hong Kong to any destination in North America chosen by the
Executive or at the option of the Executive, the Company shall pay to the
Executive cash in lieu of one or both of such tickets.
For the sake of greater clarity, the Executive's entitlement under this
Clause 3.5 shall be in addition to any similar entitlement under any
previous service agreement entered with the Company.
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4. Expenses
4.1 The Company shall reimburse the Executive for all reasonable travel,
hotel, entertainment and other expenses properly incurred by him in the
performance of his duties and properly claimed. The Executive shall
provide such evidence of expenditures as the Company may reasonably
require.
5. Holidays
5.2 In addition to the normal public holiday in Hong Kong, the Executive shall
be entitled to 15 Business Days paid holiday during each calendar year
(accruing pro rata during the year) to be taken at such time as will not
adversely interfere with the Company's business and approved by the Board.
6. Other Benefits
6.1 The Executive shall be entitled to paid sick leave, medical and other
benefits in accordance with the laws of Hong Kong or enjoyed by other
employees of the Company of a similar level of seniority as the Executive,
whichever is the more favourable to the Executive.
7. Directorships
7.1 The Executive shall not be entitled to any director's fees or other
remuneration in respect of the Executive's appointment as a director or
officer of the Company or any Affiliate.
8. Confidential Information
8.1 During his employment the Executive shall not (except in the proper course
of carrying out his duties to the Company) or at any time after his
termination for any reason whatsoever disclose to any Person or, for
himself or any other Person, otherwise make use of any Confidential
Information or trade secrets relating to the Company or any of its
Affiliates or any of its or their suppliers, agents, clients or customers
and shall use his best efforts to prevent the unauthorised use or
disclosure of any such information.
8.2 Without restricting the general nature of Clause 8.1, the Executive
acknowledges that the Company and its Affiliates have certain proprietary
interests and undertakes not, at any time (whether during his employment
or at any time after its termination), to use or disclose for any
unauthorised purpose, any confidential or secret information concerning
any such matter.
8.3 Nothing in this agreement shall prohibit the disclosure by the Executive
of information which:
(i) the Executive is required to disclose by applicable law. The
Executive shall consult with the Company so far as may be reasonably
possible before making any such disclosure;
(j) was known to the Executive prior to it being disclosed;
(k) is disclosed on a confidential basis to consultants or advisers of
the Company or an Affiliate to assist that party in providing
services for the Company or an Affiliate; or
(I) is disclosed in proceedings taken by the Executive for the
enforcement of any rights or remedies under this agreement.
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9. Termination
9.7 Without prejudice to any remedy which it may have against the Executive
for the breach of any of the provisions of this agreement, the Company may
by notice to the Executive forthwith terminate this agreement if the
Executive shall be guilty of any serious misconduct which entitles the
Company or its Affiliate to terminate the Executive's employment summarily
under the laws of Hong Kong.
9.8 The Executive may terminate this agreement upon providing to the Company 3
months prior written notice or payment of 3 months Basic Remuneration in
lieu thereof.
9.9 If this agreement is terminated on or before 31 August 2002 otherwise than
under circumstances which entitle the Company to summarily terminate this
agreement under Clause 9.1, the Executive shall be entitled to be paid all
Basic Remuneration and all other benefits calculated up to and including
31 August 2002 (upon the termination of this agreement), as agreed
compensation and not penalty, as if this agreement had not been terminated
on or before that date.
10. Obligations Upon Termination of Agreement
10.1 Upon the termination of his employment for whatever reason the Executive
shall:-
(a) deliver up to the Company all property belonging to the Company or
any of its Affiliates which may be in his possession or under his
control, and (unless prevented by the owner) any papers and other
property belonging to others which may be in his possession or under
his control and which relate in any way to the business or affairs
of the Company or any of its Affiliates or any supplier, agent or
customer of the Company or any of its Affiliates, and he shall not,
without the written consent of the Board, retain any copies of any
such papers; and
(b) not at any time represent himself still to be connected with the
Company or any of its Affiliates.
11. Effect of Termination of This Agreement
11.1 The expiry or termination of this agreement however arising shall not
operate to affect any provisions which are expressed to operate or have
effect after its termination or expiry and shall not prejudice the
exercise of any right or remedy of either party accrued beforehand.
11.2 On the proper termination or expiry of this agreement, the Executive shall
not have any claim against the Company for damages or compensation of any
nature whatsoever, provided that the Company has complied with its
obligations under this agreement.
12. Protection of Goodwill
12.1 During his employment the Executive is likely to acquire Confidential
Information belonging to the Company and its Affiliates and establish
personal knowledge and influence with Persons dealing with the Company and
its Affiliates. In these circumstances, and in order to protect the
proprietary information and goodwill of the Company and the Affiliates,
the Executive undertakes that he will be bound by the following
restrictions.
12.2 The Executive shall not, without the prior written consent of the Board,
for a period of 6 months after the termination for whatever reason of his
employment under this agreement:
(a) be engaged or interested in any capacity (whether as a director,
shareholder, principal, partner, consultant, employee, independent
contractor or otherwise) in any business whose activities directly
compete with the business activities of the Company or with any
Affiliate in Hong Kong or in their other places of business at the
time of such termination;
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(b) either on his own behalf or on behalf of any other Person and
whether directly or indirectly:
(i) canvass, solicit or approach or cause to be canvassed or
solicited or approached for orders for any services or goods
supplied by the Company or any Affiliate, any Person who to
the Executive's knowledge at the date of the termination of
the Executive's employment was a client or customer of the
Company or any Affiliate;
(ii) solicit or entice or try to solicit or entice away or employ
or try to employ any employee from the Company or any
Affiliate with whom the Executive had contact at any time
during the last year of his employment; or
(iii) interfere or seek to interfere with the continued supply to
the Company or any Affiliate (or the terms relating to such
supplies) of any goods or services from or otherwise deal with
any suppliers who to the Executive's knowledge supplied goods
or services to the Company or any Affiliate at any time during
the last year of his employment.
12.3 Whilst each of the restrictions in this Clause are considered by the
parties to be reasonable in all the circumstances and are necessary to
protect the legitimate interests of the Company and its Affiliates, it is
agreed and declared that if any one or more of such restrictions shall be
judged to be void as going beyond what is reasonable in all the
circumstances for the protection of the legitimate interests of the
Company or any Affiliate but would be valid if words were deleted from it
or the period of it reduced in scope the restrictions shall be deemed to
apply with such modifications as may be necessary to make them valid and
effective and any such modification shall not affect the validity of any
other restriction.
12.4 Nothing in this agreement shall prevent the Executive from being the
holder for investment of securities which do not exceed 5% in nominal
value of any class of securities quoted on an officially recognised stock
exchange.
13. Entire Agreement and Severability
13.1 This agreement constitutes the entire agreement between the parties
concerning the employment described in it and both the Company and the
Executive acknowledge that they have not entered into this agreement in
reliance wholly or partly on any statement or representation made to
either of them by or on behalf of the other except as set out in this
agreement. No variation or addition to this agreement and no waiver of any
provision of it shall be valid unless in writing signed by or on behalf of
both parties. The headings of these provisions are for convenience of
reference only and have no effect on their interpretation.
13.2 The provisions of this agreement are severable and if any provision is
held to be invalid or unenforceable by a court of competent jurisdiction
then such invalidity or unenforceability shall not affect the remaining
provisions of this agreement.
14. Notices
14.1 Any notice to be given under this agreement shall be in writing. Notice to
the Executive shall be sufficiently served by being delivered personally
to him or sent by pre-paid post (or air courier if sent internationally),
addressed to him at his usual or last known place of abode. Notice to the
Company shall be sufficiently served by being delivered to or sent by such
post (or air courier if sent internationally), to the Company's address
set out on the first page of this agreement or such other address as the
Company may have given to the Executive by notice.
15. Definitions
15.1 In this agreement:
"Affiliate" means any holding company of the Company
and any corporation which, from time to
time, is a subsidiary (as defined by the
Companies Ordinance of Hong Kong) or
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Associated Company of the Company or any
holding company of the Company in any part
of the world;
"Associated Company" means any corporation in which the Company
or any holding company of the Company
holds, owns or controls (directly or
through other Persons) 20% or more of its
issued share capital;
"Basic Remuneration" means the basic remuneration of HK$75,000
per month referred to in Clause 3.1, as
the same may be increased by the Board
from time to time;
"Board" means the board of directors of the
Company or any Person authorised by it;
"Business Day" means a day on which banks are open for
business in Hong Kong, excluding Saturdays
and Sundays;
"Confidential Information" of a Person means information of any
nature concerning that Person or its
business which is not publicly known,
including any compilation which is not
publicly available of items of public
information and further includes (without
limitation) such information concerning
the business, finances, ownership, trade
connections and know how of the Person,
but excluding information which:
(i) is publicly known at the time of
disclosure;
(ii) after disclosure becomes publicly
known other than as a result of a
breach of a confidentiality
obligation;
(iii) can be shown to have been developed
independently by the recipient
before disclosure of the
information;
(vi) can be shown was made available to
the recipient by some other Person
who had a right to do so and who has
not imposed on the recipient any
obligation of confidentiality or
restricted use;
"Hong Kong" means the Hong Kong Special Administrative
Region, People's Republic of China;
"Person" includes any natural person, corporation
(state, federal, municipal or otherwise),
unincorporated association (including
partnership) and any form of governmental
body or authority or other entity or body
of any nature whatsoever in each case in
any part of the world; and
"Year-End Payment" has the meaning defined in Clause 3.3.
17. Governing Law
17.1 This agreement shall be governed by and interpreted according to the laws
of Hong Kong and the parties submit to the non exclusive jurisdiction of
the Hong Kong Courts.
AS WITNESS the Executive and the duly authorised representative of the Company
have set their hands the day and year first above written
SIGNED by Xxxxxxx Xxxxxxx Pek )
for and on behalf of )
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First Xxxx.xxx, Inc. ) SIGNED
in the presence of:- )
SIGNED by Xxxxxxx X.X. Xxxxxxx )
in the presence of:- ) SIGNED
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