EXHIBIT 10.16
CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
This Confidentiality and Non-Competition Agreement (the "Agreement") is
made as of this 10th day of September 2003 ("Effective Date") by and between
Xxxxx.xxx International, Ltd. (the "Company") and Qi Ji (the "Director"). The
Company and the Director are hereinafter referred to individually as a "Party"
and collectively as the "Parties."
WHEREAS, the Director is a member of the Company's Board of Directors, and
also a principal shareholder of most of the related entities of the Company in
China (excluding the Company's subsidiaries) (collectively, the "Related Chinese
Entities");
WHEREAS, both the Director and the Company expressly acknowledge and agree
that the sole purpose of the Related Chinese Entities is to further the business
purposes of the Company; and
WHEREAS, in light of the Director's fiduciary relationship with the Company
and in consideration for the Director's agreement to enter into this Agreement
with the Company, the Company has assisted and will assist in the capitalization
and operation of the Related Chinese Entities.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth below, the Parties agree as follows:
I. CONFIDENTIALITY
1.1 The Director shall keep secret and shall not at any time use for
Director's own or any third party's advantage, or reveal to any person, company,
organization or any other entity, and shall use the Director's best endeavors to
prevent the publication or disclosure of, any and all Confidential Information
(as defined below).
1.2 If the Director breaches his obligation of confidentiality hereunder,
the Director shall be liable to the Company for all damages (direct or
consequential) incurred as a result of the Director's breach.
1.3 The restrictions in this Article I shall not apply to any disclosure or
use authorized by the Company or required by law.
1.4 "Confidential Information" shall mean information relating to the
business, customers, products and affairs of the Company (including without
limitation, marketing information) deemed or treated confidential by the
Company, or which the Director knows or ought reasonably to have known to be
confidential, and trade secrets, including without limitation designs,
processes, pricing policies, methods, inventions, technology, technical data,
financial information and know-how relating to the business of the Company.
1.5 For purposes of Articles I and II of this Agreement, the Company shall
include all subsidiaries of the Company as well as the Related Chinese Entities.
EXHIBIT 10.16
II. NON-COMPETITION
2.l The Director agrees that he shall not engage in any business directly
competitive with that carried on by the Company, provided that nothing in this
clause shall preclude the Director from holding or being otherwise interested in
any shares or other securities of any company, any part of which is listed or
dealt in on any stock exchange or recognized securities market anywhere, and the
Director shall notify the Company in writing of his interest in such shares or
securities in a timely manner and with such details and particulars as the
Company may reasonably require.
2.2 In consideration of the Company's assistance in the capitalization and
operation of the Related Chinese Entities, the Director hereby agrees that
during the period he is a shareholder of any of the Related Chinese Entities and
for a period of five (5) years following the termination of this Agreement:
(a) Director shall not approach clients, customers, suppliers or contacts
of the Company or other persons or entities introduced to Director in
Director's capacity as a director or shareholder of the Company for
the purposes of doing business with such persons or entities and will
not interfere with the business relationship between the Company and
such persons and/or entities;
(b) unless expressly consented to by the Company, Director will not
provide services as a director or otherwise for any competitor of the
Company in China, or engage, whether as principal, partner, licensor
or otherwise, in any business which is in direct or indirect
competition with the business of the Company; and
(c) unless expressly consented to by the Company, Director will not seek
directly or indirectly, by the offer of alternative employment or
other inducement whatsoever, to solicit the services of any employee
of the Company employed as at the date of termination of this
Agreement, or in the year preceding such termination.
2.3 The provisions provided in Article II shall be separate and severable
and enforceable independently of each other and independent of any other
provision of this Agreement. In the event that any provision of this Article II
should be found to be void under applicable laws and regulations but would be
valid if some part thereof were deleted or the period or area of application
reduced, such provisions shall apply with such modification as may be necessary
to make them valid and effective.
III. TERM. This Agreement shall remain in full force and effect until both
Parties hereto agree to terminate it in writing.
IV. MISCELLANEOUS
4.1 Binding Effect. This Agreement will be binding upon and inure to the
benefit of any successor of the Company. Any such successor of the Company will
be deemed substituted for the Company under the terms of this Agreement for all
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EXHIBIT 10.16
purposes. For this purpose, "successor" means any person, company, organization
or other entity which at any time, whether by purchase, merger or otherwise,
directly or indirectly acquires all or substantially all of the assets or
business of the Company.
4.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York, USA, without conflicts of laws principles
thereof.
4.3 Severability. In the case that any one or more of the provisions
contained in this Agreement shall be held invalid, illegal or unenforceable in
any respect under any applicable law, the validity, legality and enforceability
of the remaining provisions contained herein shall not in any way be affected or
impaired thereby.
4.4 Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the Parties and supersedes all other oral and written
agreements between the Company and the Director regarding the subject matter
hereof. The Director acknowledges that he has not entered into this Agreement in
reliance upon any representation, warranty or undertaking which is not set forth
in this Agreement.
4.5 Notice. Any notice to be given under this Agreement to the Director may
be served by being handed to Director personally or by being sent by recorded
delivery first class post to Director at Director's usual or last known address;
and any notice to be given to the Company may be served by being left at or by
being sent by recorded delivery first class post to its registered office. Any
notice served by post shall be deemed to have been served on the day (excluding
Sundays and statutory holidays) next following the date of posting and in
proving such service it shall be sufficient proof that the envelope containing
the notice was properly addressed and posted as a prepaid letter by recorded
delivery first class post.
4.6 Headings. The headings in this Agreement are for the convenience of the
Parties hereto and shall not be deemed a substantive part of this Agreement.
4.7 Amendment. No amendment to the terms of this Agreement shall be valid
unless in writing and signed by both Parties hereto.
4.8 Counterparts. This Agreement may be signed in two (2) counterparts and
each counterpart shall be deemed to be an original.
[SIGNATURE PAGE FOLLOWS]
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EXHIBIT 10.16
IN WITNESS WHEREOF this Agreement has been executed on the date first above
written.
Xxxxx.xxx International, Ltd. DIRECTOR
Signature: /s/ Signature: /s/ Qi Ji
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Name: Name: Qi Ji
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