DATED : THE 29 DAY OF DECEMBER 2020
【•】
AND
【•】
______________________________
SERVICE AGREEMENT
____________________________
THIS AGREEMENT is made on the 29 day of December 2020
BETWEEN:
(1) 【•】 of 【•】 Hong Kong (the “Employee”); and
(2) 【•】LIMITED whose registered office is at 【•】and its principal place of business in Hong Kong is at 【•】 (the “Company”).
WHEREAS:-
(1) In this Agreement, the “Group” shall mean the Company and its subsidiaries from time to time, and the expression “subsidiary” shall have the meaning set out in section 2 of the Companies Ordinance (Chapter 32 of the Laws of Hong Kong) (the “Companies Ordinance”) or any modification or reenactment thereof.
(2) The parties have agreed to enter into this Agreement on the terms and conditions set out herein.
NOW IT IS HEREBY AGREED AND DECLARED as follows:
1. TERM OF EMPLOYMENT
1.1 The Company shall employ the Employee and the Employee shall serve the Company as a of the Company subject to the provisions of this Agreement and the articles of association of the Company. Such employment shall commence from the date hereof until the 5th anniversary of the date of commencement, renewable for successive terms of one year each commencing from the day immediately after the expiry of the then current term of the Employee’s appointment, unless terminated by one month’ notice in writing served by either party on the other. The Company may at its sole and absolute discretion pay a proportionate amount of the salary in lieu of any required period of notice.
1.2 The same terms as set out in this Agreement shall apply to any renewed term of appointment of the Employee.
1.3 The Employee represents and warrants to the Company that she is fully capable of and not bound by or subject to any court order, agreement, arrangement or undertaking which in any way restricts or prohibits her from entering into or performing all obligations and duties under this Agreement.
2. DUTIES
2.1 For the duration of this Agreement, the Employee shall:
(a) XXX
(b) XXX
and it is agreed that the Employee shall work in any place in the Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”) or any part of the world which the Board may reasonably require for the proper performance and exercise of her duties under this Agreement.
3. RESTRICTIONS ON OTHER ACTIVITIES BY THE EMPLOYEE
3.1 For so long as the Employee is employed under the terms of this Agreement, the Employee shall not and shall procure her associates (as defined in the Listing Rules) not to (except with the prior sanction of a resolution of the Board):
(a) be employed by or otherwise be directly or indirectly engaged in or concerned with or interested in any other business which is in any respect in competition with or in opposition to, directly or indirectly, any business for the time being carried on by any company in the Group, provided that, this shall not prohibit the holding (directly or through nominees) of investments listed on any stock exchange as long as not more than five per cent. of the issued shares or stock of any class of any one company shall be so held without the prior sanction of a resolution of the Board (save that this restriction shall not apply to any holding of shares of the Company); and
(b) be interested in any project or proposal for the acquisition or development of or investment in any business or asset in which any member of the Group has been during the continuance of this Agreement or is considering to acquire, develop or invest unless the Group shall have decided against such acquisition, development or investment or invited the Employee or her associates (as defined in the Listing Rules) in writing to participate in, or consented in writing to the Employee’s or her associates’ (as defined in the Listing Rules) acquisition or development of or investment in, such business or assets.
3.2 The Employee shall not and shall procure her associates (as defined in the Listing Rules), either during or after the termination of the said appointment without limit in point of time, not to:
(a) divulge or communicate any secret, confidential or private information to any person or persons except to those of the officers of the Group whose province it is to know the same; or
(b) use any secret, confidential or private information for her own purposes or for any purposes other than those of the Group; or
(c) through any failure to exercise all due care and diligence cause any unauthorised disclosure of any secret, confidential or private information:
(i) relating to the business and affairs of the Group not in the public domain;
(ii) relating to the working of any process or invention which is carried on or used by any company in the Group or which she may discover or make during her appointment hereunder; or
(iii) in respect of which any such company is bound by an obligation of confidence to any third party,
but so that these restrictions shall cease to apply to any information or knowledge which may (otherwise than through the default of the Employee) become available to the public generally without requiring a significant expenditure of labour, skill or money.
3.3 For the purpose of this Agreement, “secret, confidential or private information” shall include all and any information (whether or not recorded in documentary form or on computer disk or tapes) relating to the business of the Group, dealings, affairs, and matters of the Group, including but without limitation to trade secrets, business methods, strategy, corporate plans, management system, new business opportunities and know-how, etc..
3.4 All notes, memoranda, records and writings and copies thereof made by the Employee relating to the business of the Group shall be and remain the property of the Group and shall be handed over by her to the Company (or to such other company in the Group as the case may require) from time to time on demand and in any event upon the termination of her service to the Company.
3.5 Any dispute regarding any matter provided for in this Clause 3 shall be decided by the Board, whose decision shall be final, conclusive and binding as between the parties.
4. REMUNERATION AND BENEFITS
4.1 The Company and/or any member of the Group shall pay to the Employee during the continuance of this Agreement:
(a) remuneration at the rate of HK$【•】 per month (inclusive of salary, and housing allowance) payable in arrears at the end of each calendar month. Upon successful completion of probation period of three months, such remuneration may be adjusted at the sole and absolute discretion of the Board provided that the increase cannot be more than 20 percent. After each completed year of service, such remuneration may be adjusted at the sole and absolute discretion of the Board provided that the increase cannot be more than 30 percent per annum;
(b) for each completed year of service, a year-end double pay and discretionary bonus as may be decided by the Board and payment of such bonus shall be made on such date as the Board may resolve; and
(c) all reasonable medical expenses as provided under the Group’s medical benefits scheme, if any.
4.2 Payment of the remuneration and bonus payable to the Employee pursuant to Clause 4.1 shall be made either by the Company or by another company in the Group and if more than one company, in such proportions as the Board may from time to time think fit.
4.3 The Employee may, at the discretion of the Board, be eligible to participate in any share option scheme from time to time adopted by the Company in accordance with the terms and conditions of such share option scheme.
4.4 The Employee shall not accept from any business associates/customers of the Company or of any member of the Group any gifts or benefits, monetary or otherwise, which exceeds the amount of HK$ without the prior consent of the Board or in any manner ask for or solicit any such gifts or benefits which exceeds the amount of HK$ from business associates/customers of the Company or of any member of the Group.
5. EXPENSES
The Company shall, subject to the production of receipts or other evidence satisfactory to the Board, reimburse the Employee all travelling, hotel, entertainment and other outofpocket expenses properly and reasonably incurred by her in or about the discharge of her duties hereunder.
6. DEDUCTIONS
The Company and/or any member of the Group shall be entitled at any time to deduct from the Employee’s remuneration hereunder any monies due from her to the Company or any member of the Group including, but not limited to, any outstanding loans, advances, the cost of repairing any damage to or loss of the Group’s property caused by her (and of recovering the same) and any other monies owed by her to the Company and/or any member of the Group provided that any such deduction made shall be in compliance with the provisions of the Employment Ordinance (Chapter 57 of the Laws of Hong Kong) or any other similar legislation as it may be applicable and in force from time to time.
7. HOLIDAYS
7.1 The Employee shall be entitled to 15 working days’ holiday (exclusive of statutory holidays in Hong Kong, or other holidays on which banks are closed in Hong Kong and sick leave) in each completed year of service (or if this Agreement terminates before the end of the relevant year of service, on a pro-rata basis) to be taken by the Employee at such times as may be convenient to the Group having regard to the requirements of the Group’s business.
7.2 For the avoidance of doubt, the unused annual leave as referred to in Clause 7.1 may be carried forward to the next year of service up to a maximum of five days, unless the Board determines otherwise, and any untaken annual leave at the end of such five-day period shall be forfeited.
8. INVENTIONS AND OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY
8.1 The parties foresee that the Employee may make inventions or create other industrial or intellectual property in the course of her duties and agree that in this respect the Employee has a special responsibility to further the interests of the Group.
8.2 Any invention, improvement or design made or process or information discovered or copyright work, trade and service marks, trade name or getup created by the Employee during the term of her appointment (whether or not capable of being patented or registered and whether or not made or discovered in the course of her employment) in conjunction with or in any way affecting or relating to the business of any company in the Group or capable of being used or adopted for use therein or in connection therewith, shall forthwith be disclosed to the Company and shall belong to and be the absolute property of such company in the Group as the Company may direct.
8.3 The Employee if and whenever required to do so by the Company shall at the expense of a company in the Group apply or join with such company in applying for patent or other protection or registration for any such invention, improvement, design, process, information, copyright work, trade and service marks, trade name or getup which belongs to such company and shall at the expense of such company execute and do all instruments and things necessary for vesting the sole beneficial right in the said patent or other protection or registration when obtained and all rights, title and interest to and in the same in such company or in such other person as the Company may specify.
8.4 The Employee hereby irrevocably and by way of security appoints the Company to be her attorney in her name and on her behalf to execute and do any such instrument or thing as may be necessary for the purpose of implementing the provisions of this Clause 8 and generally to use her name for the purpose of giving to the Company the full benefit of this Clause 8 and in favour of any third party. A certificate in writing signed by an employee or by the Secretary of the Company that any instrument or act falls within the authority hereby conferred shall be conclusive evidence that such is the case. The Employee hereby agrees to confirm and ratify all such acts and instruments.
9. TERMINATION
9.1 This Agreement may be terminated forthwith by the Company without prior notice and compensation if the Employee shall at any time:
(a) commit any irredeemable, serious or persistent breach whether wilful or not, of any of the provisions of this Agreement;
(b) be guilty of any dishonesty, grave misconduct or wilful neglect in the discharge of her duties under this Agreement;
(c) become bankrupt or make any arrangement or composition with her creditors generally or has a receiving order made against her;
(d) become of unsound mind or be or become a patient for any purpose of any statute relating to mental health;
(e) be convicted of any criminal offence (other than an offence which in the reasonable opinion of the Board does not affect her position as an employee of the Company);
(f) become permanently incapacitated by accident or illhealth from performing her duties under this Agreement and for the purpose of this paragraph, incapacity for six consecutive months or for an aggregate period of nine months in any period of twelve months shall be deemed to be a permanent incapacity;
(g) become prohibited by law, the Listing Rules, the Hong Kong Codes on Takeovers and Mergers and Share Repurchases or any rules prescribed by the Stock Exchange from acting as an employee or from fulfilling her duties under this Agreement or be removed from office by a special resolution of the shareholders of the Company in general meeting;
(h) be guilty of conduct (in the reasonable opinion of the Board) likely to bring herself or any member of the Group into disrepute;
(i) improperly divulge to any unauthorised person any secret, confidential or private information or any other business secret or details of the organisation, business of the Group (provided that this obligation shall not be extended to any such information which is in the public domain at the time of disclosure);
(j) during the continuance of this Agreement be absent (other than during periods of holiday) for an aggregate of 90 business days (as defined under Clause 15);
(k) be convicted of any offence or be identified as an insider dealer under any statutory enactment or regulations relating to insider dealing in force from time to time; and
(l) be disqualified to act as an employee of any member of the Group under any applicable law (including without limitation the Companies Ordinance or rules of any stock exchange including the Stock Exchange).
9.2 If the Company is for any reason not entitled to terminate this Agreement forthwith in accordance with Clause 9.1, it may, at any time after the occurrence of any of the events specified in Clause 9.1, by giving to the Employee one week’s notice (or payment of salary in lieu of such notice or the unexpired part of such period, as the case may be), terminate this Agreement. It is also agreed that should any of the events specified in Clause 9.1 occur and the Company elects to terminate this Agreement, the “agreed period” for the purposes of section 6(2)(c) of the Employment Ordinance (Chapter 57 of the Laws of Hong Kong) is seven calendar days.
9.3 If the Company becomes entitled to terminate the employment of the Employee under this Agreement pursuant to Clause 9.1, it shall be entitled (but without prejudice to its right subsequently to terminate such appointment on the same or any other ground) to suspend the appointment of the Employee under this Agreement either in full or in part, with or without payment of remuneration for so long as it may think fit.
9.4 On the termination of her employment howsoever arising, the Employee shall forthwith deliver to the Company all books, records, client’s lists, accounts, statistics documents, papers, materials, credit cards, motor cars and other property of or relating to the business of the Group which may then be in her possession or under her power or control and all copies thereof or extracts therefrom made by or on behalf of the Employee.
9.5 If the Employee is at any time employed as an employee of any member of the Group, she shall on or after the expiry of her appointment under this Agreement or its sooner determination, resign in writing from any office held by her as such Employee and from all other offices held by her with any member of the Group and to execute an acknowledgment under seal to the effect that she has no claims against the Company or any of its subsidiaries (as the case may be) for compensation for loss of office or otherwise.
9.6 Termination of the Employee’s appointment under this Agreement shall be without prejudice to any rights which have accrued at the time of termination or to Clauses 3.2, 8 and 10 (all of which shall remain in full force and effect).
10. NONSOLICITATION AND RESTRICTIVE COVENANTS
10.1 The Employee agrees that during the term of her employment by the Company and for a period of two years thereafter, unless agreed by the Company otherwise:
(a) she will not and shall procure her associates (as defined in the Listing Rules) not to engage or be engaged in Hong Kong and the People’s Republic of China in which (i) the Group operates (the “Territory”) whether directly or indirectly in the business of cement production and the sale and trading of cement-related products in the Territory or other business which any company in the Group shall have determined to carry on with a view to profit in the immediate or foreseeable future (the “Restricted Business”) and/or (ii) she possesses any secret, confidential or private information relating to the business of the Group at any time during her employment hereunder or at the time of the termination of her employment under this Agreement;
(b) she will not and shall procure her associates (as defined in the Listing Rules) not to take up employment with any person, firm, company or organisation engaged in the Territory (whether directly or indirectly) in any business involving or related to any of the Restricted Business (but this restriction shall not operate so as to prohibit an employment which does not involve duties relating to the Restricted Business) nor assist any such person, firm, company or organisation with technical, commercial or professional advice in relation to the Restricted Business;
(c) she will not and shall procure her associates (as defined in the Listing Rules) not to be engaged in or concerned with or interested in as principal shareholder, employee, agent or otherwise (whether directly or indirectly) in any company, firm or business which as regards any goods or service is a supplier to or a customer of the Company or any other member of the Group;
(d) she will not and shall procure her associates (as defined in the Listing Rules) not to either on her/its own account or for any person, firm, company or organisation, solicit, engage, employ or entice or endeavour to solicit engage, employ or entice (whether directly or indirectly) from the Company any employee, manager or employee of any member of the Group whether or not such person would commit any breach of her contract of employment by reason of leaving the service of the relevant member of the Group;
(e) she will not and shall procure her associates (as defined in the Listing Rules) not to directly or indirectly employ any person who has during the term of her employment been an employee, manager, employee of or consultant to any member of the Group and who by reason of such employment is or may be likely to be in possession of any secret, confidential or private information relating to the Group’s business or the business of the customers of the Group; and
(f) she will not and shall procure her associates (as defined in the Listing Rules) not to either on her/its own account or for any person, firm, company or organisation, solicit business (whether directly or indirectly) from any person, firm, company or organisation which has dealt with the Company or any other member of the Group or which on the termination of her employment is in the process of negotiating with the Company or any such member of the Group in relation to any of the Restricted Business.
10.2 Since the Employee may also obtain in the course of her employment by reason of services rendered for or offices held in any other member of the Group knowledge of the secret, confidential or private information of such company, the Employee hereby agrees that she shall at the request of the Company enter into a direct agreement or undertaking with such company whereby she will accept restrictions corresponding to the restrictions herein contained (or such of them as may be appropriate in the circumstances) in relation to such products and services and such area and for such period as such company may reasonably require for the protection of its legitimate interests.
11. SEVERABILITY
While the restrictions contained in Clauses 3, 8 and 10 are considered by the parties to be reasonable in all the circumstances, it is recognised that restrictions of the nature in question may fail for technical reasons unforeseen and accordingly it is hereby agreed and declared that if any such restrictions shall be adjudged to be void as going beyond what is reasonable in all the circumstances for the protection of the interests of the Group but would be valid if part of the wordings thereof were deleted or the periods (if any) thereof were reduced or the range of products or area dealt with thereby were reduced in scope, the said restriction shall apply with such modifications as may be necessary to make it valid and effective.
12. WAIVER
12.1 No failure on the part of any party to exercise, and no delay on its part in exercising, any right to remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or exercise of any other right or remedy. The rights or remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
13. FORMER SERVICE AGREEMENT
13.1 This Agreement shall be in substitution for any previous or existing service agreement (if any) or arrangements made orally or in writing between any member of the Group and the Employee and for any terms of employment previously or currently in force between any such company and the Employee and the Employee shall have no claim in connection with any such superseded service agreement.
13.2 The Employee hereby acknowledges that she has no outstanding claims of any kind against any member of the Group.
14. INTERPRETATION
The headings to the Clauses are for convenience only and have no legal effect.
15. NOTICES
Notices given under this Agreement shall be deemed effectively given to the Company if they are sent by post to or left at the principal place of business of the Company in Hong Kong and to the Employee if they are sent by post to or left at the last known address of the Employee. In the case of notice being sent by post, the notice shall be deemed (in the case of local mail) to have been received two business days (“business day” means a day other than Saturday on which banks in Hong Kong are generally open for business) after the time of despatch or (in the case of air mail) to have been received seven business days after the time of despatch.
16. AMENDMENT
This Agreement may not be amended, supplemented, modified or varied except by a written agreement or instrument signed by both parties.
17. SHARE DEALINGS
The Employee shall comply where relevant with every rule of law, every regulation of the Stock Exchange or other market on which she deals and every regulation and the articles of association of the Company in force for the time being in relation to dealings in shares, debentures or other securities of the companies in the Group and in relation to unpublished price-sensitive information affecting the shares, debentures or other securities of any company in the Group provided always that in relation to overseas dealings the Employee shall also comply with all laws of the state and all regulations of the stock exchange, market or dealing system in which such dealings take place.
18. INDEMNITY
18.1 The Employee agrees and undertakes to indemnify and keep effectively indemnified in full the Group on demand from and against all actions, demands, claims, proceedings, liabilities, costs and expenses incurred or sustained by any member of the Group, arising from, as a result of or in connection with any breach by the Employee of any of her obligations under this Agreement or any of her obligations implied by law.
18.2 The Company agrees and undertakes to indemnify and keep effectively indemnified in full the Employee on demand from and against all actions, demands, claims, proceedings, liabilities, costs and expenses incurred or sustained by the Employee, which are not as a result of or in connection with any material breach by, or gross negligence of, the Employee of any of her obligations under this Agreement or any of her obligations implied by law.
19. GOVERNING LAW
This Agreement is governed by and shall be construed in accordance with the laws of Hong Kong and the parties irrevocably submit to the non-exclusive jurisdiction of the Hong Kong courts in the determination of any dispute arising under this Agreement.
20. MISCELLANEOUS
(a) The expiration or termination of this Agreement howsoever arising shall not operate to affect such provisions hereof as in accordance with their terms are expressed to operate or have effect thereafter.
(b) In the event of any variation of the remuneration payable to the Employee hereunder being made by consent of the parties hereto such variation shall not constitute a new agreement but (subject to any express agreement to the contrary) the employment of the Employee hereunder shall continue subject in all respects to the terms and conditions of this Agreement with such variation as aforesaid.
(c) Time is of the essence to this Agreement but no failure or delay on the part of either party to exercise any power, right, remedy hereunder shall operate as a waiver hereof.
IN WITNESS whereof the parties have set their respective hands the day and year first above written.
SIGNED, SEALED and DELIVERED by )
【•】 )
in the presence of :- )
SIGNED by )
a director, for and on behalf of )
【•】 )
in the presence of :-
