☒
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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☐
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Nevada
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46-1660653
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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11767 Katy Freeway, Suite 830, Houston, Texas
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77079
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(Address of principal executive offices)
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(Zip Code)
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☐
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Smaller reporting company
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☐
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Emerging growth company
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☒ |
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Page
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PART I
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Item 1.
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1 | |
Item 2.
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2 | |
Item 3.
|
2 | |
Item 4.
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2 | |
PART II
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||
Item 5.
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3 | |
Item 6.
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4 | |
Item 7.
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4 | |
Item 7A.
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8 | |
Item 8.
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9 | |
Item 9.
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10 | |
Item 9A.
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10 | |
Item 9B.
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11 | |
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PART III
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Item 10.
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12 | |
Item 11.
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14 | |
Item 12.
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16 | |
Item 13.
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16 | |
Item 14.
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17 |
PART IV
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||
Item 15.
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18 |
1.1 |
COBETER 20/120: Artemether+Lumefantrine DISPERSIBLE tablets 20 mg/120 mg
|
1.2 |
COBETER 80/480: Artemether+Lumefantrine tablets 80 mg /480 mg
|
2.1 |
Amxila-250: AMOXICILLIN CAPSULE USP 250 mg
|
2.2 |
Amxila-500: AMOXICILLIN CAPSULE USP 500 mg
|
2.3 |
Amxila-125: AMOXICLILIN ORAL SUSPENSION USP 125 mg/ 5 ml
|
3.1 |
LUCKTOR-10: ATORVASTATIN TABLETS USP 10 mg
|
3.2 |
LUCKTOR-20: ATORVASTATIN TABLETS USP 20 mg
|
3.3 |
LUCKTOR-40: ATORVASTATIN TABLETS USP 40 mg
|
3.4 |
LUCKTOR-80: ATORVASTATIN TABLETS USP 80 mg
|
4.1 |
LUCKZO-5: SIMVASTATIN TABLETS USP 5 mg
|
4.2 |
LUCKZO-10: SIMVASTATIN TABLETS USP 10 mg
|
4.3 |
LUCKZO-20: SIMVASTATIN TABLETS USP 20 mg
|
4.4 |
LUCKZO-40: SIMVASTATIN TABLETS USP 40 mg
|
4.5 |
LUCKZO-80: SIMVASTATIN TABLETS USP 80 mg
|
Year ended February 29, 2016
|
High
|
Low
|
||||||
1st Quarter
|
$
|
0.20
|
$
|
0.20
|
||||
2nd Quarter
|
$
|
0.56
|
$
|
0.20
|
||||
3rd Quarter
|
$
|
2.00
|
$
|
0.65
|
||||
4th Quarter
|
$
|
2.00
|
$
|
1.30
|
One Month ended March 31, 2016
|
High
|
Low
|
||||||
One Month
|
$
|
0.80
|
$
|
0.80
|
Year ended March 31, 2017
|
High
|
Low
|
||||||
1st Quarter
|
$
|
1.95
|
$
|
0.80
|
||||
2nd Quarter
|
$
|
1.15
|
$
|
1.15
|
||||
3rd Quarter
|
$
|
1.55
|
$
|
0.65
|
||||
4th Quarter
|
$
|
1.70
|
$
|
1.55
|
1.
|
we would not be able to pay our debts as they become due in the usual course of business, or;
|
2.
|
our total assets would be less than the sum of our total liabilities plus the amount that would be needed to satisfy the rights of shareholders who have preferential rights superior to those receiving the distribution.
|
1. |
Establish a management team to work on our pharmaceutical operations in US, Malaysia and India.
|
2. |
Identify and locate a privately-owned company or companies involved in the pharmaceutical business, which is looking to become a publicly listed company by combining their operation with us through a reverse merge.
|
3. |
Implement manufacturing and sales of products to be licensed from Luckycom Pharma Pvt Ltd.
|
March 31,
|
March 31,
|
February 29,
|
||||||||||
Assets
|
2017
|
2016
|
2016
|
|||||||||
Current Assets
|
||||||||||||
Cash
|
$
|
29,413
|
$
|
86,262
|
$
|
116,642
|
||||||
Prepaid expense and other current assets
|
17,568
|
125
|
125
|
|||||||||
Total Current Assets
|
46,981
|
86,387
|
116,767
|
|||||||||
Other Assets
|
||||||||||||
Other assets
|
5,405
|
-
|
-
|
|||||||||
Total Other Assets
|
5,405
|
-
|
-
|
|||||||||
Total Assets
|
$
|
52,386
|
$
|
86,387
|
$
|
116,767
|
||||||
Liabilities and Stockholders’ (Deficit) Equity
|
||||||||||||
Current Liabilities:
|
||||||||||||
Other payable and accrued liabilities
|
$
|
67,541
|
$
|
1,037
|
$
|
741
|
||||||
Due to officer
|
327,054
|
35,359
|
32,081
|
|||||||||
Total Liabilities
|
394,595
|
36,396
|
32,822
|
|||||||||
Stockholders’ (Deficit) Equity:
|
||||||||||||
Common stock, $0.01 par value; 100,000,000 shares authorized; 17,626,000, 17,500,000 and 17,500,000 shares issued and outstanding as of March 31, 2017, March 31, 2016 and February 29, 2016, respectively.
|
176,260
|
175,000
|
175,000
|
|||||||||
Additional Paid-in capital
|
973,248
|
856,000
|
856,000
|
|||||||||
Accumulated other comprehensive income
|
10
|
10
|
10
|
|||||||||
Accumulated deficit
|
(1,491,727
|
)
|
(981,019
|
)
|
(947,065
|
)
|
||||||
Total stockholders’ (deficit) equity
|
(342,209
|
)
|
49,991
|
83,945
|
||||||||
Total Liabilities and Stockholders’ (Deficit) Equity
|
$
|
52,386
|
$
|
86,387
|
$
|
116,767
|
For the one | ||||||||||||
For the year ended
|
For the year ended
|
month ended
|
||||||||||
March 31, 2017
|
February 29, 2016
|
March 31, 2016
|
||||||||||
General and administrative expenses
|
$
|
(450,790
|
)
|
$
|
(420,772
|
)
|
$
|
(33,868
|
)
|
|||
Other (expenses) income
|
(59,918
|
)
|
44
|
(86
|
)
|
|||||||
Net Loss
|
$
|
(510,708
|
)
|
$
|
(420,728
|
)
|
$
|
(33,954
|
)
|
|||
Net loss per share – basic and diluted
|
$
|
(0.03
|
)
|
$
|
(0.03
|
)
|
$
|
(0.00
|
)
|
|||
Weighted average common shares – basic and diluted
|
17,573,184
|
14,562,077
|
17,500,000
|
Accumulated other
|
Total
|
|||||||||||||||||||||||
Common Stock
|
Additional
|
Comprehensive
|
Accumulated
|
Stockholders’
|
||||||||||||||||||||
Shares
|
Amount
|
Paid-in Capital
|
Income
|
Deficit
|
(Deficit) Equity
|
|||||||||||||||||||
Balance as of February 28, 2015
|
10,500,000
|
105,000
|
86,000
|
10
|
(526,337
|
)
|
(335,327
|
)
|
||||||||||||||||
Common stock issued for cash
|
3,500,000
|
35,000
|
385,000
|
-
|
-
|
420,000
|
||||||||||||||||||
Debt settlement
|
3,500,000
|
35,000
|
315,000
|
-
|
-
|
350,000
|
||||||||||||||||||
Stock-based compensation
|
-
|
-
|
70,000
|
-
|
-
|
70,000
|
||||||||||||||||||
Net loss
|
-
|
-
|
-
|
-
|
(420,728
|
)
|
(420,728
|
)
|
||||||||||||||||
Balance as of February 29, 2016
|
17,500,000
|
$
|
175,000
|
$
|
856,000
|
$
|
10
|
$
|
(947,065
|
)
|
$
|
83,945
|
||||||||||||
Net loss
|
-
|
-
|
-
|
-
|
(33,954
|
)
|
(33,954
|
)
|
||||||||||||||||
Balance as of March 31, 2016
|
17,500,000
|
$
|
175,000
|
$
|
856,000
|
$
|
10
|
(981,019
|
)
|
49,991
|
||||||||||||||
Common stock issued for cash
|
120,000
|
1,200
|
111,308
|
-
|
-
|
112,508
|
||||||||||||||||||
Common stock issued for service
|
6,000
|
60
|
5,940
|
-
|
-
|
6,000
|
||||||||||||||||||
Net loss
|
-
|
-
|
-
|
-
|
(510,708
|
)
|
(510,708
|
)
|
||||||||||||||||
Balance as of March 31, 2017
|
17,626,000
|
$
|
176,260
|
$
|
973,248
|
$
|
10
|
$
|
(1,491,727
|
)
|
$
|
(342,209
|
)
|
Year Ended
|
Year Ended
|
One Month Ended
|
||||||||||
March 31, 2017
|
February 29, 2016
|
March 31, 2016
|
||||||||||
Cash Flows from Operating Activities
|
||||||||||||
Net loss
|
$
|
(510,708
|
)
|
$
|
(420,728
|
)
|
$
|
(33,954
|
)
|
|||
Adjustment to reconcile net loss to net cash used in operating activities:
|
||||||||||||
Amortization of drug license
|
-
|
9,167
|
-
|
|||||||||
Stock-based compensation
|
6,000
|
70,000
|
-
|
|||||||||
Changes in operating assets and liabilities:
|
||||||||||||
Prepaid expense and other current assets
|
(17,443
|
)
|
(125
|
)
|
-
|
|||||||
Other assets
|
(5,405
|
)
|
-
|
-
|
||||||||
Other payable and accrued liabilities
|
66,504
|
(1,573
|
)
|
296
|
||||||||
Net cash flow used in operating activities
|
(461,052
|
)
|
(343,259
|
)
|
(33,658
|
)
|
||||||
Cash Flows from Investing Activities
|
-
|
-
|
-
|
|||||||||
Cash Flows from Financing Activities
|
||||||||||||
Proceeds from issuance of common stock
|
112,508
|
420,000
|
-
|
|||||||||
Proceeds from officer loans
|
291,695
|
93,278
|
3,278
|
|||||||||
Repayments of officer loans
|
-
|
(101,663
|
)
|
-
|
||||||||
Net cash flow provided by financing activities
|
404,203
|
411,615
|
3,278
|
|||||||||
Net (decrease) increase in cash
|
(56,849
|
)
|
68,356
|
(30,380
|
)
|
|||||||
Cash, beginning of period
|
86,262
|
48,286
|
116,642
|
|||||||||
Cash, end of period
|
$
|
29,413
|
$
|
116,642
|
$
|
86,262
|
||||||
Supplemental disclosures of cash flow information:
|
||||||||||||
Cash paid during the years for:
|
||||||||||||
Income taxes
|
$
|
-
|
$
|
-
|
$
|
-
|
||||||
Interest expense
|
$
|
-
|
$
|
-
|
$
|
-
|
||||||
Noncash financing activities:
|
||||||||||||
Shares issued for debt conversion
|
$
|
-
|
$
|
350,000
|
$
|
-
|
March 31,
|
March 31,
|
February 29,
|
||||||||||
2017
|
2016
|
2016
|
||||||||||
Federal income tax benefit attributable to:
|
||||||||||||
Current Operations
|
$
|
480,645
|
$
|
307,004
|
$
|
295,500
|
||||||
Less: valuation allowance
|
(480,645
|
)
|
(307,004
|
)
|
(295,500
|
)
|
||||||
Net provision for Federal income taxes
|
$
|
-
|
$
|
-
|
$
|
-
|
For the years ending March 31
|
||||
2018
|
$
|
32,915
|
||
2019
|
15,079
|
|||
$
|
47,994
|
Name
|
Age
|
Principal Positions With Us
|
||
Kingrich Lee
|
42
|
President, Chief Executive Officer, Chief Financial Officer, Treasurer, Secretary, Chairman and Sole Director
|
1. |
LUCKYCOM PHARMACEUTICALS INC. Nevada
|
2. |
LUCKYCOM Ltd, Hong Kong
|
3. |
Essential Choice Ventures Ltd, BVI
|
4. |
LUCKYCOM Pharma Pte.Ltd, Singapore
|
5. |
LUCKYCOM Pharma Pvt. Ltd, India
|
· |
the corporation could financially undertake the opportunity;
|
· |
the opportunity is within the corporation’s line of business; and
|
· |
it would be unfair to the corporation and its stockholders not to bring the opportunity to the attention of the corporation.
|
Position
|
Year
|
Salary
($) |
Bonus
($) |
Stock
Awards ($) |
Option
Awards ($) |
Non-equity
Incentive Plan Compensation ($) |
All Other
Compensation ($) |
Total
($) |
||||||||||||||||||||||
Kingrich Lee (1)
|
2016
|
145,000
|
—
|
70,000
|
—
|
—
|
—
|
215,000
|
||||||||||||||||||||||
President, Chief Executive Officer, Chief Financial Officer, Treasurer, Secretary, Chairman and Sole Director
|
2017
|
180,000
|
—
|
—
|
—
|
—
|
—
|
180,000
|
Equity Awards
|
||||||||||||||||||||
Name
|
Number of
securities underlying unexercised options (#) Exercisable |
Number of
securities underlying unexercised options (#) Unexercisable |
Equity incentive
plan awards: number of securities underlying unexercised unearned options (#) |
Option
exercise price (US$) |
Option
expiration date |
|||||||||||||||
Kingrich Lee
|
-
|
-
|
-
|
-
|
-
|
Name and Address of Beneficial Owner
|
Shares Beneficially
Owned (1)
|
Percentage Beneficially
Owned (2)
|
||||||
Kingrich Lee
Level 8, Two Exchange Square
8 Connaught Place Central Hong Kong
|
11,375,000
|
61.9
|
%
|
|||||
All directors and officers as a group (1 person)
|
11,375,000
|
61.9
|
%
|
|||||
Owners of more than 5% of Shares of Common Stock
|
||||||||
Chen Zhixiong
Guangdong Sheng Fo Shan Shi Shun
De Qu Da Liang Jie Dao Wei Siu Lu
Wen Le Jie 10 Zuo Hao, China
|
1,000,000
|
5.44
|
%
|
|||||
Yang Shuowen
No. 22 Pu Lan Er Lu
Chan Cheng Qu
Foshan City, Guangdong, China
|
1,500,000
|
8.16
|
%
|
(1) |
Unless otherwise indicated, each person or entity named in the table has sole voting power and investment power (or shares that power with that person’s spouse) with respect to all shares of voting stock listed as owned by that person or entity. In determining beneficial ownership of our common stock as of a given date, the number of shares shown includes shares of common stock which may be acquired on exercise of warrants or options or conversion of convertible securities within 60 days of that date. In determining the percent of common stock owned by a person or entity on June 27, 2017, (a) the numerator is the number of shares of the class beneficially owned by such person or entity, including shares which may be acquired within 60 days on exercise of warrants or options and conversion of convertible securities, and (b) the denominator is the sum of (i) the total shares of common stock outstanding on June 27, 2017 (18,376,000), and (ii) the total number of shares that the beneficial owner may acquire upon conversion of the preferred and on exercise of the warrants and options, subject to limitations on conversion and exercise. Unless otherwise stated, each beneficial owner has sole power to vote and dispose of its shares.
|
(2) |
Pursuant to Rules 13d-3 and 13d-5 of the Exchange Act, beneficial ownership includes any shares as to which a shareholder has sole or shared voting power or investment power, and also any shares which the shareholder has the right to acquire within 60 days, including upon exercise of common shares purchase options or warrants. The percent of class is based on 18,376,000 voting shares as of June 27, 2017.
|
Year Ended
March 31, 2017
|
Year Ended
February 29, 2016
|
One Month Ended
March 31, 2016 |
||||||||||
Audit Fees and Audit Related Fees
|
$
|
18,500
|
$
|
12,200
|
$
|
—
|
||||||
Tax Fees
|
—
|
—
|
—
|
|||||||||
All Other Fees
|
—
|
—
|
—
|
|||||||||
Total
|
$
|
18,500
|
$
|
12,200
|
$
|
—
|
(a) |
Financial Statements and Schedules
|
(b) |
Exhibits
|
Exhibit Number
|
Description
|
|
3.1
|
Articles of Incorporation(4)
|
|
3.2
|
Bylaws(1)
|
|
3.3
|
Amendment to Articles of Incorporation(2)
|
|
10.1
|
Employment Agreement(3)
|
|
10.2
|
Rental Agreement(1)
|
|
10.3
|
Exclusive License Agreement(2)
|
|
10.4
|
Custodian Agreement(2)
|
|
10.5
|
Termination of Custodian Agreement(2)
|
|
10.6
|
Engagement Letter & Agreement(3)
|
|
10.7
|
Termination of Engagement Letter & Agreement(3)
|
|
10.8
|
Amendment No. 1 to Exclusive License Agreement(3)
|
|
10.9
|
Amendment No. 2 to Exclusive License Agreement(5)
|
|
10.10
|
Oral Agreement for Compensation and Loans(4)
|
|
10.11
|
||
21.1
|
||
31.1*
|
||
31.2*
|
||
32.1*
|
||
32.2*
|
||
101*
|
The following materials from the Company’s Annual Report on Form 10-K for the year ended December 31, 2014 formatted in Extensible Business Reporting Language (XBRL).
|
(1) |
Incorporated by reference to the Registration Statement on Form S-1 filed on April 12, 2013
|
(2) |
Incorporated by reference to the Registration Statement on Form S-1/A filed on July 8, 2013
|
(3) |
Incorporated by reference to the Registration Statement on Form S-1/A filed on September 6, 2013
|
(4) |
Incorporated by reference to the Registration Statement on Form S-1/A filed on October 10, 2013
|
(5) |
Incorporated by reference to the Registration Statement on Form S-1/A filed on January 10, 2014
|
Luckycom Pharmaceuticals Inc.
|
||
Dated: June 27, 2017
|
By:
|
/s/ Kingrich Lee
|
Name:
|
Kingrich Lee
|
|
Title:
|
Chief Executive Officer (Principal Executive Officer)
|
Signature
|
Title(s)
|
Date
|
||
/s/ Kingrich Lee
|
Chief Executive Officer and Director
|
June 27, 2017
|
||
Kingrich Lee
|
(Principal Executive Officer)
|
/s/ Kingrich Lee
|
Chief Financial Officer
|
June 27, 2017
|
||
Kingrich Lee
|
(Principal Financial and Accounting Officer)
|
1.
|
Employment and Duties.
|
a)
|
Subject to the terms and conditions hereinafter set forth, the Company hereby employs Kingrich Lee as its Chief Executive Officer, and he shall have the duties and responsibilities associated with a Chief Executive Officer of a public corporation. During the Term (defined hereafter) Executive shall report to the Company’s board of directors. Executive shall also perform such other duties and responsibilities as may be determined by the Company’s board of directors as long as such duties and responsibilities are consistent with those of the Company’s Chief Executive Officer.
|
b)
|
Executive shall also serve in such executive capacity or capacities with respect to any affiliate of the Company to which he may be elected or appointed, provided that such duties are consistent with those of the Company’s Chief Executive Officer. For purposes of this Agreement, the term “affiliate” shall mean an entity that is controlled by the Company.
|
c)
|
Unless terminated earlier as provided in Section 5 of this Agreement, this Agreement shall have an initial term (the “Initial Term”) commencing as of the date of this Agreement and expiring on September 30, 2017 and continuing on a year-to-year basis thereafter unless terminated by either party on not less than thirty (30) days notice prior to the expiration of the initial Term or any one-year extension. The initial Term and the one-year extensions are collectively referred to as the “Term”.
|
2.
|
Performance. Executive hereby accepts the employment contemplated by this Agreement. During the Term, he shall devote substantially all of his business time to the performance of his duties under this Agreement, and shall perform such duties diligently, in good faith and in a manner consistent with the best interests of the Company.
|
3.
|
Compensation and Other Benefits.
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a)
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For his services to the Company during the Term, the Company shall pay Executive an annual salary (“Salary”) at the rate of one hundred eighty thousand U.S. dollars ($180,000) or one million four hundred and four thousand Hong Kong dollars (” HKD “) (HK$ l,404,000) payable in equal monthly installments.
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4.
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Reimbursement of Expenses. The Company shall reimburse Executive, upon presentation of proper expense statements, for all authorized, ordinary and necessary out- of-pocket expenses reasonably incurred by Executive during the Term in connection with the performance of his services pursuant to this Agreement; provided however, that Executive shall be required to obtain prior approval from the Company for all expenditures in excess of five hundred thousand U.S. dollars ($500,000) or three million eight hundred seventy five thousand fifty HKD($3,875,050).
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5.
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Employee Benefits.
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a)
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Health and Other Medical. Executive and his spouse shall be eligible to participate in all health and medical employee benefit plans as are available from time to time to other employees of the Company and their families. Pursuant to the Company’s policy, the Company shall pay fifty percent (50%) of the costs of all such benefits.
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b)
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Vacation. Executive shall be entitled to two (2) weeks of paid vacation and five (5) personal days per year, to be taken in such amounts and at such times as shall be mutually agreed upon by the Company and Executive. Any unused paid vacation or personal days shall not be forfeited and shall carry forward to subsequent years. Executive shall not be entitled to reimbursement for any unused vacation or personal time, except as may be required under law.
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c)
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Savings Plan. Executive shall be eligible to enroll and participate, and be immediately vested in, all Company savings and retirement plans, including, but not limited to, any 401(k) plans, as are available from time to time to other employees.
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6.
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Termination of Employment.
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a)
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Automatic Termination. This Agreement and Executive’s employment hereunder shall automatically terminate upon the earlier of: (i) the expiration of this Agreement pursuant to subsection l(c) of this Agreement, (ii) termination pursuant to this Section 6 or (iii) Executive’s death.
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b)
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Termination by the Company. This Agreement may be terminated by the Company upon thirty (30) days prior written notice to Executive upon the earlier to occur of the following:
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(i)
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Disability. This Agreement and Executive’s employment pursuant to this Agreement, may be terminated by the Company in the event of Executive’s Disability. The term “Disability” shall mean any illness, disability or incapacity of Executive which prevents him from substantially performing his regular duties for a period of four (4) consecutive months or one hundred eighty (180) days, even though not consecutive, in any twelve (12) month period.
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(ii)
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Cause. The Company may terminate this Agreement and Executive’s employment pursuant to this Agreement for Cause. The term “Cause” shall mean:
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A.
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Any violation of any material provision of this Agreement, habitual absenteeism, bad faith, repeated failure or refusal to perform Executive’s duties pursuant to Section 1 of this Agreement or gross negligence or willful misconduct on the part of Executive in the performance of his duties, provided that the Company has given written notice of and an opportunity of not less than thirty (30) days to cure such breach.
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B.
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a breach of Section 7, 8 or 9 of this Agreement;
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C.
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a breach of trust whereby Executive obtains personal gain or benefit at the expense of or to the detriment of the Company;
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D.
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Executive’s use of illegal substances;
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E.
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any fraudulent or dishonest conduct by Executive or any other conduct by him, which damages the Company, its parent, any of its subsidiaries or affiliates or their property, business or reputation;
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F.
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a conviction of or plea of nolo contendere by Executive of (i) any felony or (ii) any other crime involving fraud, theft, embezzlement or use or possession of illegal substances; or,
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G.
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the admission by Executive of any matters set forth in Section 6(b)(ii)(F) of this Agreement.
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H.
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failure to ensure that the Company’s filings with the Securities and Exchange Commission (the “SEC”) are timely; and
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I.
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failure to ensure the accuracy of the Company’s filings with SEC.
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c)
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Termination by Executive.
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(i)
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Disability. This Agreement and Executive’s employment pursuant to this Agreement, may be terminated by Executive on not less than thirty (30) days’ prior written notice in the event of Executive’s Disability.
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(ii)
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Voluntary termination. This Agreement may be voluntarily terminated by Executive on not less than thirty (30) days prior written notice to the Company.
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d)
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Consequences of Termination.
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7.
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Trade Secrets and Proprietary Information.
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8.
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Covenant Not To Solicit or Compete.
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a)
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During the period from the date of this Agreement until one (1) year following the date on which Executive’s employment is terminated, Executive will not, directly or indirectly;
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(i)
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Persuade or attempt to persuade any person or entity which is or was a customer, client or supplier of the Company to cease doing business with the Company, or to reduce the amount of business it does with the Company (the terms “customer” and “client” as used in this Section 8 include any potential customer or client to whom the Company submitted bids or proposals, or with whom the Company conducted negotiations, during the term of Executive’s employment hereunder or during the twelve (12) months preceding the termination of Executive’s employment);
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(ii)
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Solicit for himself or any other person or entity other than the Company the business of any person or entity which is a customer or client of the Company, or was a customer or client of the Company within one (1) year prior to the termination of Executive’s employment; or
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(iii)
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Persuade or attempt to persuade any employee of the Company, or any individual who was an employee of the Company during the one (1) year period prior to the lawful and proper termination of this Agreement, to leave the Company’s employ, or to become employed by any person or entity other than the Company.
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b)
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Executive acknowledges that the restrictive covenants (the “Restrictive Covenants”) contained in Sections 7 and 8 of this Agreement are a condition of his employment and are reasonable and valid in geographical and temporal scope and in all other respects. If any court determines that any of the Restrictive Covenants, or any part of any of the Restrictive Covenants, is invalid or unenforceable, the remainder of the Restrictive Covenants and parts thereof shall not thereby be affected and shall remain in full force and effect, without regard to the invalid portion. If any court determines that any of the Restrictive Covenants, or any part thereof, is invalid or unenforceable because of the geographic or temporal scope of such provision, such court shall have the power to reduce the geographic or temporal scope of such provision, as the case may be, and, in its reduced form, such provision shall then be enforceable.
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9.
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Inventions and Discoveries. Executive agrees promptly to disclose in writing to the Company any invention or discovery made by him during the period of time that this Agreement remains in full force and effect, whether during or after working hours, in any business in which the Company is then engaged or which otherwise relates to any product or service dealt in by the Company and such inventions and discoveries shall be the Company’s sole property. Executive acknowledges that any such invention or discovery developed by him and any intellectual property rights relating thereto shall be considered as “work performed for hire” In the event that any such intellectual property rights are not, for any reason, deemed work performed for hire, Executive hereby assigns to the Company any and all of his right, title and interest therein to the Company. Upon the Company’s request, Executive shall execute and assign to the Company all applications for copyrights and patents of the United States and such foreign countries as the Company may designate, and Executive shall execute and deliver to the Company such other instruments as the Company deems necessary to confirm the Company’s sole ownership of all rights, title and interest in and to such inventions and discoveries, as well as all copyrights and/or patents. If services in connection with applications for copyrights and/or patents are performed by Executive at the Company’s request after the termination of his employment hereunder, the Company shall pay Executive reasonable compensation for such services rendered after termination of this Agreement.
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10.
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Non-Disparagement. Commencing on the date hereof and continuing indefinitely, Executive hereby covenants and agrees that he shall not, directly or indirectly, defame, disparage, create false impressions, or otherwise put in a false or bad light the Company, its products or services, its business , reputation, conduct, practices, past or present employees, financial condition or otherwise.
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11.
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Injunctive Relief. Executive agrees that his violation or threatened violation of any of the provisions of Sections 7, 8 or 9 of this Agreement shall cause immediate and irreparable harm to the Company. In the event of any breach or threatened breach of any of said provisions, Executive consents to the entry of preliminary and permanent injunctions by a court of competent jurisdiction prohibiting him from any violation or threatened violation of such provisions and compelling him to comply with such provisions. In the event an injunction is issued against any such violation by Executive, the period referred to in Section 8 of this Agreement shall continue until the later of the expiration of the period set forth therein or one (1) month from the date a final judgment enforcing such provisions is entered and the time for appeal has lapsed. The provisions of Sections 7, 8, 9 and 10 of this Agreement shall survive any termination of this Agreement and Executive’s employment pursuant to this Agreement.
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12.
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Miscellaneous.
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a)
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Authority. Executive represents, warrants, covenants and agrees that he has a right to enter into this Agreement, that he is not a party to any agreement or understanding, oral or written, which would prohibit performance of his obligations under this Agreement, and that he will not use, in the performance of his obligations hereunder, any proprietary information of any other party which he is legally prohibited from using.
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b)
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Notice. Any notice, consent or communication required under the provisions of this Agreement shall be given in writing and sent or delivered by hand, overnight courier or messenger service, against a signed receipt or acknowledgment of receipt, or by registered or certified mail, return receipt requested, or telecopier or similar means of communication if receipt is acknowledged or if transmission is confirmed by mail as provided in this Section 11(b), to the parties as follows:
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c)
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Governing Law. This Agreement shall in all respects be construed and interpreted in accordance with, and the rights of the parties shall be governed by, the laws of Hong Kong, without regard to principles of conflicts of laws.
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d)
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Severability. If any term, covenant or condition of this Agreement or the application thereof to any party or circumstance shall , to any extent, be determined to be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to parties or circumstances other than those as to which it is held invalid or unenforceable , shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law , and any court having jurisdiction may reduce the scope of any provision of this Agreement, including the geographic and temporal restrictions set forth in Section 8(a) of this Agreement, so that it complies with applicable Jaw.
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e)
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Entire Agreement; Amendment. This Agreement constitutes the entire agreement of the Company and Executive as to the subject matter hereof, superseding all prior or contemporaneous written or oral understandings or agreements, including any and all previous employment agreements or understandings, all of which are hereby terminated, with respect to the subject matter covered in this Agreement. This Agreement may not be modified or amended, nor may any right be waive d, except by a writing which expressly refers to this Agreement, states that it is intended to be a modification , amendment or waiver and is signed by both parties in the case of a modification or amendment or by the party granting the waiver. No course of conduct or dealing between the parties and no custom or trade usage shall be relied upon to vary the terms of this Agreement. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.
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f)
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Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors, executors, administrators and permitted assigns. Neither party hereto shall have the right to assign or transfer any of its or his rights hereunder except in connection with a merger or consolidation of the Company or a sale by the Company of all or substantially all of its business and assets.
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g)
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Headings. The headings in this Agreement are for convenience of reference only and shall not affect in any way the construction or interpretation of this Agreement.
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h)
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Waivers. No delay or omission to exercise any right, power or remedy accruing to either party hereto shall impair any such right, power or remedy or shall be construed to be a waiver of or an acquiescence to any breach hereof. No waiver of any breach hereof shall be deemed to be a waiver of any other breach hereof theretofore or thereafter occurring. Any waiver of any provision hereof shall be effective only to the extent specifically set forth in an applicable writing. All remedies afforded to either party under this Agreement, by law or otherwise, shall be cumulative and not alternative and shall not preclude assertion by such party of any other rights or the seeking of any other rights or remedies against any other party.
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i)
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Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures evidenced by facsimile transmission will be accepted as original signatures.
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