EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (the “Agreement”) is made
and entered into as of the 1st day of February, 2010, by and between
SmartHeat Inc., a Nevada corporation (the “Company”),
and Xxxxxx Xxxx (the “Executive”).
WITNESSETH:
WHEREAS, the parties desire to
enter into this Agreement setting forth the terms and conditions for the
employment relationship of the Executive with the Company.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements contained herein, the parties hereto agree as
follows:
1. EMPLOYMENT.
1.1 Agreement to Employ.
The Company hereby agrees to employ Executive, and Executive hereby agrees to
serve, subject to the provisions of this Agreement, as an officer and employee
of the Company.
1.2 Duties and Schedule.
Executive shall serve as the Company’s Vice President of Strategy and
Development and shall be responsible for development of corporate strategy,
mergers and acquisitions and investor relations and shall have such
responsibilities as designated by the Company’s Chief Executive Officer or the
Board of Directors of the Company (the “Board”) that are not
inconsistent with applicable laws, regulations and rules. Executive
shall report directly to the Company’s Chief Executive Officer or the Board as
circumstances may require. Executive shall devote his best efforts and all of
his business time to his position with the Company and shall have no other
employment with a third party during the Term.
2. TERM OF EMPLOYMENT.
Unless Executive’s employment shall sooner terminate pursuant to Section 4, the
Company shall employ Executive for a term commencing on the date hereof and
ending on June 30, 2013 (the “Term”).
3. COMPENSATION.
3.1 Salary. Executive’s
salary during the Term shall be RMB70,000 per month (the “Salary”) payable each
month.
3.2 Options. Executive
shall be awarded options (the “Options”) to purchase
50,000 shares of common stock of the Company, par value $.001 per share (the
“Common
Stock”), exercisable at the closing price per share of the Company’s
Common Stock at the close of the market on the date of this Agreement. 25,000
Options shall vest on June 30, 2011 and 25,000 Options shall vest on June 29,
2012, unless the Executive is not employed by the Company on such dates, in
which case the unvested options shall lapse in full unless otherwise provided in
this Agreement. The vested Options shall expire five (5) years from the date of
vesting. If Executive is terminated for Cause (as defined below), or if Company
terminates Executive prior to the end of the Trial Term (as defined below) or
Executive voluntarily terminates his employment for any reason, any Options
which have not fully vested shall not vest and be automatically
terminated. If Executive is terminated by the Company for any reason
except Cause or is terminated because of Death or Disability (as defined below),
any Options which have not vested, shall vest on a monthly pro rata basis to the
last date of the month of such termination.
3.2.1 For
the purposes of this Agreement, “Cause” means
(i) fraud or material misappropriation with respect to the business or
assets of the Company; (ii) refusal or failure materially to perform his
duties and responsibilities to the Company for a period of at least ten
(10) days, which continues after the Executive receives notice of such
refusal or failure; (iii) conduct that constitutes disloyalty to the
Company and which materially xxxxx the Company or conduct that constitutes
breach of fiduciary duty involving personal profit; (iv) conviction, or the
entry of a plea of guilty or nolo contendere by the Executive, of a felony or
crime, or willful violation of any law, rule, or regulation, involving moral
turpitude; (v) the use of drugs or alcohol which interferes materially with
the Executive’s performance of his duties; or (vi) material breach of any
provision of this Agreement. For the purposes of this Agreement, “Disability” means
Executive’s inability to render, for a period of two consecutive months,
services hereunder due to his physical or mental incapacity as solely determined
by the Board in good faith.
3.3
Bonus. At the
sole discretion of the Board, the Executive shall be eligible for an annual cash
bonus based on his attainment of pre-agreed upon objectives and the performance
of the Company.
3.4 Vacation. Executive
shall be entitled to 8 days of paid vacation per year. In the event that
Executive remains employed by the Company 3 years past the end of the Term,
employee shall be entitled to 12 days of paid vacation.
3.5 Business Expenses.
Executive shall be reimbursed by the Company for all ordinary and necessary
expenses incurred by Executive; provided that they are incurred and approved in
writing in accordance with the Company’s expense policy.
3.6 Insurances and Social
Welfares. The Company shall provide all the necessary insurances and
social welfares, including but not limited to medical insurance, work injury
insurance, maternity insurance, retirement insurance, unemployment insurance and
housing fund, to the Executive according to relating policies of the Company and
the relevant laws and regulations of local governmental authorities and the
People’s Republic of China.
4. TERMINATION.
4.1 Trial Term. For the
first 3 months of the Term (the “Trial Term”), the
Company may terminate the employment hereunder for any reason and such
termination shall take effect upon the delivery of the Notice of Termination to
the Executive. Executive shall be solely entitled to accrued and
unpaid Salary through such effective date.
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4.2
Death. This
Agreement shall terminate immediately upon the death of Executive and
Executive’s estate or Executive’s legal representative, as the case may be,
shall be entitled to Executive’s accrued and unpaid Salary and vacation as of
the date of Executive’s death, plus all other compensation and benefits that
were vested through the date of Executive’s death.
4.3 Disability. In the
event of Executive’s Disability, this Agreement shall terminate and Executive
shall be entitled to (a) accrued and unpaid Salary and vacation through the
first date that a Disability is determined; and (b) all other compensation and
benefits that were vested through the first date that a Disability has been
determined.
4.4 Termination by Company for
Cause. The Company may terminate the Executive for Cause
without notice and such termination shall take effect upon the receipt by
Executive of the Notice of Termination. Upon the effective date of the
termination for Cause, Executive shall be solely entitled to accrued and unpaid
Salary through such effective date.
4.5 Voluntary Termination by
Executive. The Executive may voluntarily terminate his
employment for any reason and such termination shall take effect 30 days after
the receipt by Company of the Notice of Termination. Upon the effective date of
such termination, Executive shall be entitled to (a) accrued and unpaid Salary
and vacation through such termination date; and (b) all other compensation and
benefits that were vested through such termination date. In the event
Executive terminates without notice, it shall be deemed a termination by the
Company for Cause.
4.6 Notice of
Termination. Any termination of the Employment by the Company
or the Executive shall be communicated by a notice in accordance with Section
8.4 of this Agreement (the “Notice of
Termination”). Such notice shall (a) indicate the
specific termination provision in this Agreement relied upon and (b) if the
termination date is for Cause, the date on which the Executive’s employment is
to be terminated.
4.7 Severance. The
Executive shall not be entitled to severance payments upon any termination
provided in Section 4 herein.
5. EMPLOYEE’S
REPRESENTATION. The Executive represents and warrants to the Company
that: (a) he is subject to no contractual, fiduciary or other obligation which
may affect the performance of his duties under this Agreement; (b) he has
terminated, in accordance with their terms, any contractual obligation which may
affect his performance under this Agreement; and (c) his employment with the
Company will not require him to use or disclose proprietary or confidential
information of any other person or entity.
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6. CONFIDENTIAL
INFORMATION Except as
permitted or directed by the Chief Executive Officer of the Company in writing,
during the time the Executive is employed by the Company or at any time
thereafter, the Executive shall not use for his personal purposes nor divulge,
furnish, or make accessible to anyone or use in any way (other than in the
ordinary course of the business of the Company) any confidential or secret
information or knowledge of the Company, whether developed by himself or by
others. Such confidential and/or secret information encompassed by this
Section 6 includes, but is not limited to, the Company’s customer and
supplier lists, business plans, software, systems, and financial, marketing, and
personnel information. The Executive agrees to refrain from any acts or
omissions that would reduce the value of any confidential or secret knowledge or
information to the Company, both during his employment hereunder and at any time
after the termination of his employment. The Executive’s obligations of
confidentiality under this Section 6 shall not apply to any knowledge or
information that is now published publicly or that subsequently becomes
generally publicly known, other than as a direct or indirect result of a breach
of this Agreement by the Executive.
7. NON-COMPETITION:
NON-SOLICITATION; INVENTIONS.
7.1
Non-Competition.
During the employment of the Executive under this Agreement and for a
period of six (6) months after termination of such employment, the
Executive shall not at any time compete on his own behalf, or on behalf of
any other person or entity, with the Company or any of its affiliates within all
territories in which the Company does business with respect to the business of
the Company or any of its affiliates as such business shall be conducted on the
date hereof or during the employment of the Executive under this Agreement. The
ownership by the Executive of not more than 5% of a corporation, partnership or
other enterprise shall not constitute a violation hereof.
7.2
Non-Solicitation. During
the employment of the Executive under this Agreement and thereafter Executive
shall not at any time (i) solicit or induce, on his own behalf or on behalf
of any other person or entity, any employee of the Company or any of its
affiliates to leave the employ of the Company or any of its affiliates; or
(ii) solicit or induce, on his own behalf or on behalf of any other person
or entity, any customer or Prospective Customer of the Company or any of their
respective affiliates to reduce its business with the Company or any of its
affiliates. For the purposes of this Agreement, “Prospective Customer”
shall mean any individual, corporation, trust or other business entity which has
either (a) entered into a nondisclosure agreement with the Company or any
Company subsidiary or affiliate or (b) has within the preceding 12 months
received a currently pending and not rejected written proposal in reasonable
detail from the Company or any of the Company’s subsidiary or
affiliate.
7.3 Inventions and
Patents. The Company shall be entitled to the sole benefit and exclusive
ownership of any inventions or improvements in products, processes, or other
things that may be made or discovered by Executive while he is in the service of
the Company, and all patents for the same. During the Term, Executive shall do
all acts necessary or required by the Company to give effect to this section
and, following the Term, Executive shall do all acts reasonably necessary or
required by the Company to give effect to this section. In all cases,
the Company shall pay all costs and fees associated with such acts by
Executive.
7.4 Return of
Property. The Executive agrees that all property in the
Executive’s possession that he obtains or is assigned in the course of his
employment with the Company, including, without limitation, all documents,
reports, manuals, memoranda, customer lists, credit cards, keys, access cards,
and all other property relating in any way to the business of the Company, is
the exclusive property of the Company, even if the Executive authored, created,
or assisted in authoring or creating such property. The Executive shall return
to the Company all such property immediately upon termination of employment or
at such earlier time as the Company may request.
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7.5 Court Ordered
Revisions. If any portion of this
Section 7 is found by a court of competent jurisdiction to be invalid or
unenforceable, but would be valid and enforceable if modified, this
Section 7 shall apply with such modifications necessary to make this
Section 7 valid and enforceable. Any portion of this Section 7
not required to be so modified shall remain in full force and effect and not be
affected thereby.
7.6 Specific Performance.
The Executive acknowledges that the remedy at law for any breach of any of the
provisions of Section 7 will be inadequate, and that the Company shall be
entitled, in addition to any remedy at law or in equity, to preliminary and
permanent injunctive relief and specific performance.
8. MISCELLANEOUS.
8.1 Indemnification. The
Company and each of its subsidiaries shall, to the maximum extent provided under
applicable law, indemnify and hold Executive harmless from and against any
expenses, including reasonable attorney’s fees, judgments, fines, settlements
and other legally permissible amounts (“Losses”), incurred in
connection with any proceeding arising out of, or related to, Executive’s
employment by the Company, other than any such Losses incurred as a result of
Executive’s negligence or willful misconduct. The Company shall, or
shall cause a subsidiary thereof to, advance to Executive any expenses,
including attorney’s fees and costs of settlement, incurred in defending any
such proceeding to the maximum extent permitted by applicable
law. Such costs and expenses incurred by Executive in defense of any
such proceeding shall be paid by the Company or applicable subsidiary in advance
of the final disposition of such proceeding promptly upon receipt by the Company
of (a) written request for payment; (b) appropriate documentation evidencing the
incurrence, amount and nature of the costs and expenses for which payment is
being sought; and (c) an undertaking adequate under applicable law made by or on
behalf of Executive to repay the amounts so advanced if it shall ultimately be
determined pursuant to any non-appealable judgment or settlement that Executive
is not entitled to be indemnified by the Company or any subsidiary
thereof. The Company will provide Executive with coverage under all
directors and officers liability insurance policies that it has in effect during
the Term, with no deductible to Executive.
8.2 Applicable
Law. Except as may be otherwise provided herein, this
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, applied without reference to principles of conflict of
laws.
8.3 Amendments. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors or legal
representatives.
8.4 Notices. All
notices and other communications hereunder shall be in writing and shall be
given by hand-delivery to the other party, by an international mail courier, or
by registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
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If to the
Executive:
Xxxxxx
Xxxx
c/o
SmartHeat Inc.
X-0, 00,
Xxxxxx 0, Xxxxxxxx Economic Development Zone
Shenyang,
China 110027
With a
copy to (which shall not constitute a notice):
If to the
Company:
X-0, 00,
Xxxxxx 0, Xxxxxxxx Economic Development Zone
Shenyang,
China 110027
Attn: Chief
Executive Officer
With a
copy to (which shall not constitute notice):
The
Xxxxxx Law Firm, PLLC
00 Xxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Fax:
(000) 000-0000
Or to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notices and communications shall be effective
when delivered to the addressee.
8.5 Withholding. The
Company may withhold from any amounts payable under the Agreement, such federal,
state and local income, unemployment, social security and similar employment
related taxes and similar employment related withholdings as shall be required
to be withheld pursuant to any applicable law or regulation.
8.6 Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
and any such provision which is not valid or enforceable in whole shall be
enforced to the maximum extent permitted by law.
8.7 Captions. The
captions of this Agreement are not part of the provisions and shall have no
force or effect.
8.8 Entire
Agreement. This Agreement contains the entire agreement among
the parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, between the parties with respect thereto.
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8.9 Survival. The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement or the Executive’s employment hereunder to the
extent necessary to the intended preservation of such rights and
obligations.
8.10 Waiver. Either
Party's failure to enforce any provision or provisions of this Agreement shall
not in any way be construed as a waiver of any such provision or provisions, or
prevent that party thereafter from enforcing each and every other provision of
this Agreement.
8.11 Successors. This
Agreement is personal to Executive and, without the prior express written
consent of the Company, shall not be assignable by Executive. This Agreement
shall inure to the benefit of and be enforceable by Executive’s estate, heirs,
beneficiaries, and/or legal representatives. This Agreement shall inure to the
benefit of and be binding upon the Company and its successors and
assigns.
8.12 Joint
Efforts/Counterparts. Preparation of this Agreement
shall be deemed to be the joint effort of the parties hereto and shall not be
construed more severely against any party. This Agreement may be
signed in two or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one and the same
instrument.
8.13 Representation by
Counsel. Each Party hereby represents that it has had
the opportunity to be represented by legal counsel of its choice in connection
with the negotiation and execution of this Agreement.
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the day and year first above
written.
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EMPLOYEE:
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/s/ Xxxxxx Xxxx
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By:
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/s/ Xxx Xxxx
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Xxxxxx
Xxxx
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Xxx Xxxx | ||
| Chief Executive Officer | |||
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