AutoChina International Limited Executive Employment Agreement
AutoChina
International Limited
This
EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"), entered
into as of July 16, 2009, by and between AutoChina International Limited, a
company organized under the laws of the Cayman Islands (the "Company") and Xxxxx
Xxxx (the "Executive")
(collectively, the "Parties").
RECITALS
A. The
Company desires to employ the Executive as its Chief Financial Officer and
to assure itself of the services of the Executive for the Initial Period of
Employment and Period of Employment (each as defined below).
B. The
Executive desires to be employed by the Company as its Chief Financial
Officer for the Initial Period of Employment and Period of Employment and upon
the terms and conditions of this Agreement.
AGREEMENT
ACCORDINGLY,
the Parties agree as follows:
1. Term of
Employment. The Company shall employ the Executive to render
services to the Company in the position and with the duties and responsibilities
described in Section 2 for a period of six (6) months starting from the
date of this Agreement (the “Initial Period of
Employment”), which period shall be automatically extended for an
additional thirty (30) months unless the Company provides notice to the
Executive of its election not to extend the period prior to the expiration of
such period (the "Period of
Employment"), unless the Initial Period of Employment or Period of
Employment, as applicable, is terminated sooner in accordance with
Sections 4 or 5 below or extended upon mutual agreement of the
Parties.
2. Position,
Duties, Responsibilities.
2.1 Position. The
Executive shall render services to the Company in the position of
Chief Financial Officer and shall perform all services appropriate to that
position as well as such other services as may reasonably be assigned by the
Company, including serving as the Chief Financial Officer of Hebei
Chuanglian Trade Co., Ltd. (河北创联贸易有限公司),
an indirectly wholly-owned subsidiary of the Company established in the
People's Republic of China (the "PRC") ("Chuanglian") and any
other direct or indirect subsidiary of the Company. The Executive's
principal place of employment shall be at any location mutually acceptable to
the board of directors of the Company and the Executive. The
Executive shall devote his best efforts and full-time attention to the
performance of his duties. The Executive shall report to the board of directors
of the Company.
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2.2 Other
Activities. Except upon the prior written consent of the board
of directors of the Company, the Executive shall not (i) accept any other
employment (except for academic employment, position in industrial or
professional associations, non-executive director of other companies which do
not compete with the Company's business, provided that such other companies
purchase director liability insurance), (ii) engage, invest or assist,
directly or indirectly, in any other business activity (whether or not pursued
for pecuniary advantage) that is or may be in conflict with, or that might place
the Executive in a conflicting position to that of the Company or (iii) act as
the legal representative or an executive officer of another company (excluding
any affiliates of the Company) within or outside the PRC.
2.3 Execution of Other Employment
Agreements. The
Executive shall upon request of the Company execute an employment agreement with
any direct or indirect subsidiary of the Company (in each case, a "Subsidiary Employment
Agreements") in
accordance with PRC laws and regulations, in the form substantially identical to
this Agreement except for adjustments or alterations required to comply with the
relevant laws and regulations of the PRC.
3. Compensation and
Holiday. In consideration of the services to be rendered under
this Agreement, the Executive shall be entitled to the following:
3.1 Base
Salary. The Company shall pay the Executive a "Base Salary" of
US$180,000 per year, subject to adjustment in accordance with Section 3.2
below. The Base Salary shall be paid in accordance with the Company's
regularly established payroll practices.
3.2 Salary
Adjustment. The Executive's Base Salary will be reviewed from
time to time in accordance with the established procedures of the Company for
adjusting salaries for similarly situated employees and may be adjusted in the
sole discretion of the Company.
3.3 Benefits. The
Executive shall be eligible to participate in the benefits made generally
available by the Company to similarly-situated executives, in accordance with
the benefit plans established by the Company (including the Company’s Equity
Incentive Plan), and as may be amended from time to time in the Company's sole
discretion. Concurrently with the execution of this agreement, the
Executive has executed an option agreement with the Company pursuant to which
the Executive will be entitled to purchase 75,000 ordinary shares of the Company
at the fair market value of the ordinary shares on the date of grant, vesting
six months after the date of grant assuming that Executive is employed by the
Company on such date.
3.4 Bonus. The
Executive shall not be entitled to any bonus unless otherwise approved by the
board of directors of the Company in its sole discretion.
3.5 Holidays. The
Executive shall be entitled, in addition to applicable statutory public
holidays, to take ten (10) working days as paid holidays in each full
calendar year. If the Executive's employment commences or terminates
part way through a calendar year, his entitlement to holidays will be assessed
on a pro-rata basis in accordance with the Company's holiday policy, as it may
change from time to time.
3.6 Insurance. The
Company shall purchase life insurance and medical insurance for the Executive
commensurate with other executives of the Company.
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3.7 Others. The
salary and benefits provided respectively in the Subsidiary Employment
Agreements and this Agreement shall not be cumulative. If there is
any discrepancy between the above provisions in Article 3 herein and the salary
and other benefits provided in the Subsidiary Employment Agreements, the
Executive shall, in addition to the salary and benefits provided in the
Subsidiary Employment Agreements, be entitled to the additional amount of the
salary and benefits (if any) provided in this Agreement, but only to the extent
it exceeds those provided in the Subsidiary Employment Agreements.
4. Termination
By Company.
4.1 Termination for
Cause. For purposes of this Agreement, "For Cause" shall mean
the occurrence of any of the following, subject only to any statutory
requirement of any applicable law: (i) the failure of the Executive to properly
carry out his duties after notice by the Company of the failure to do so and a
reasonable opportunity for the Executive to correct the same within a reasonable
period specified by the Company; (ii) any breach by the Executive of one or more
provisions of any written agreement with, or written policies of, the Company or
his fiduciary duties to the Company likely to cause material harm to the Company
and its affiliates, at the Company's reasonable discretion, or (iii) any theft,
fraud, dishonesty or serious misconduct by the Executive involving his duties or
the property, business, reputation or affairs of the Company and its
affiliates. The Company may terminate the Executive's employment For
Cause at any time, without any advance notice or payment in lieu of
notice. The Company shall pay to the Executive all compensation
prescribed under Section 3 hereof to which the Executive is entitled up through
the date of termination, subject to any other rights or remedies of the Company
under law, and thereafter all obligations of the Company under this Agreement
shall cease.
4.2 By
Death. The Executive's employment will terminate automatically
upon the Executive's death. The Company shall pay to the Executive's
beneficiaries or estate, as appropriate, any compensation then due and owing
under Section 3 hereof to which the Executive is entitled up through the date of
termination, subject to any other rights or remedies of the Company under law,
and thereafter all obligations of the Company under this Agreement shall
cease. Nothing in this section shall affect any entitlement of the
Executive's heirs or devisees to the benefits of any life insurance plan or
other applicable benefits, if any. If the Executive dies during the course of or
in connection with the performance of his duty, subject to applicable laws, the
Company shall pay to the Executive's beneficiaries or estate, as appropriate, a
special compensation not exceeding the annual Base Salary as provided in Article
3.1 above, as decided by the board of directors of the Company.
4.3 By Disability. If
the Executive becomes eligible for the Company's long-term disability benefits
or if, in the sole opinion of the Company, the Executive is unable to carry out
the responsibilities and functions of the position held by the Executive by
reason of any physical or mental impairment for more than ninety (90)
consecutive days or more than one hundred twenty (120) days in any twelve-month
period, then, to the extent permitted by law, the Company may terminate the
Executive's employment. The Company shall pay to the Executive all
compensation prescribed under Section 3 hereof to which the Executive is
entitled up through the date of termination, and thereafter all obligations of
the Company under this Agreement shall cease. Nothing in this section
shall affect the Executive's rights under any disability plan in which the
Executive is a participant, if any.
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4.4 Other Termination by
Company. In addition to Sections 4.1 through 4.3, the Company
may at any time terminate the employment of the Executive without cause: (i) at
any time during the Initial Period of Employment, in which case the Executive
will not be eligible to receive any severance; or (ii) by giving one (1) month
written notice to the Executive during the Period of Employment, in which case
the Executive will be eligible to receive an amount equal to three (3) months of
the then-current Base Salary of the Executive payable in the form of salary
continuation. Such severance shall be reduced by any remuneration
paid to the Executive because of the Executive's employment or self-employment
during the severance period, and the Executive shall promptly report all such
remuneration to the Company in writing. The Executive's eligibility
for severance is conditioned on the Executive having first signed a Termination
Certificate in the form attached as Exhibit
A. The Executive shall not be entitled to any severance
payments if the Executive's employment is terminated For Cause, by death or by
disability (as provided above) or if the Executive's employment is terminated by
the Executive for any reason other than Good Reason, as defined
below.
5. Termination
By Executive.
5.1 Termination by Executive
other than for Good Reason. The Executive may terminate
employment with the Company at any time for any reason or no reason at all, upon
three (3) months' advance written notice. During such notice period
the Executive shall continue to diligently perform all of the Executive's duties
hereunder. The Company shall have the option, in its sole discretion,
to make the Executive's termination effective at any time prior to the end of
such notice period as long as the Company pays the Executive all compensation
under Section 3 hereof to which the Executive is entitled up through the last
day of the three (3) months' notice period. Thereafter all
obligations of the Company shall cease. Unless the Executive
terminates his employment for Good Reason, as provided in Section 5.2, no
severance or other separation benefits shall be paid to the
Executive.
5.2 Termination for Good Reason After Change in
Control. The Executive's termination shall be for Good Reason
(as defined below) if the Executive provides written notice to the Company of
the Good Reason within three (3) months of the event constituting Good Reason
and provides the Company with a period of twenty (20) days to cure the Good
Reason and the Company fails to cure the Good Reason within that
period. For purposes of this Agreement, "Good Reason" shall
mean a material reduction in the Executive's Base Salary, except for reductions
that are comparable to reductions generally applicable to similarly situated
executives of the Company if (i) such reduction is effected by the Company
without the consent of the Executive and (ii) such event
occurs within three (3) months after a Change in Control (as hereinafter
defined). For purposes of this Agreement, a "Change in Control" of
the Company shall be deemed to have occurred when: (i) the
shareholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than a merger or consolidation which would
result in the shareholders of the Company immediately prior thereto holding
fifty percent (50%) or more of the outstanding voting securities of the Company
or the surviving entity immediately after such merger or consolidation; or (ii)
the shareholders of the Company approve either a plan of liquidation or
dissolution of the Company or an agreement for the sale, lease, exchange or
other transfer or disposition by the Company of fifty-percent (50%) or more of
the Company's assets. If the Executive terminates his employment for
Good Reason, the Executive will be eligible to receive an amount equal to one
(1) month of the Executive's then-current Base Salary payable in the form of
salary continuation. Thereafter all obligations of the Company or its
successor under this Agreement shall cease. Any severance shall be
reduced by any remuneration paid to the Executive because of the Executive's
employment or self-employment during the severance period, and the Executive
shall promptly report all such remuneration to the Company or its successor in
writing. The Executive's eligibility for severance is conditioned on
the Executive having first signed a Termination Certificate in the form attached
as Exhibit A.
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6. Termination
Obligations.
The
Executive agrees that on or before termination of employment, he will promptly
return to the Company all documents and materials of any nature pertaining to
his work with the Company, including all originals and copies of all or any part
of any Proprietary Information or Inventions (as defined below) along with any
and all equipment and other tangible and intangible property of the
Company. The Executive agrees not to retain any documents or
materials or copies thereof containing any Proprietary Information or
Inventions.
The
Executive further agrees that: (i) all representations,
warranties, and obligations under Articles 6, 7, 8, 10, 11, 12, 14.1, 14.2 and
14.3 contained in this Agreement shall survive the termination of the Initial
Period of Employment and Period of Employment, as applicable; (ii) the
Executive's representations, warranties and obligations under Articles 6, 7, 8,
10, 11, 12, 14.1, 14.2 and 14.3 shall also survive the expiration of this
Agreement; and (iii) following any termination of the Initial Period of
Employment or Period of Employment, as applicable, the Executive shall fully
cooperate with the Company in all matters relating to his continuing obligations
under this Agreement, including but not limited to the winding up of pending
work on behalf of the Company, the orderly transfer of work to the other
employees of the Company, and the defense of any action brought by any third
party against the Company that relates in any way to the Executive's acts or
omissions while employed by the Company. The Executive also agrees to
sign and deliver the Termination Certificate attached hereto as Exhibit A prior
to his termination of employment with the Company.
7. Post-Termination
Activity.
7.1 No Use of Proprietary
Information. The Executive acknowledges that the pursuit of
the activities forbidden by this subsection would necessarily involve the use or
disclosure of Proprietary Information in breach of this Agreement, but that
proof of such a breach would be extremely difficult. To forestall
such disclosure, use, and breach, and in consideration of the employment under
this Agreement, the Executive also agrees that while employed by the Company,
and for a period of one (1) year after termination of the Executive's
employment, the Executive shall not, directly or indirectly:
(i) divert
or attempt to divert from the Company or any Affiliate ("Affiliate" shall mean
any person or entity that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with
such entity). For the purposes of this definition "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities, by contract or otherwise, and includes (x)
ownership directly or indirectly of 50% or more of the shares in issue or other
equity interests of such person, (y) possession directly or indirectly of 50% or
more of the voting power of such person or (z) the power directly or indirectly
to appoint a majority of the members of the board of directors or similar
governing body of such person, and the terms "controlling" and
"controlled"
have meanings correlative to the foregoing) any business of any kind in which it
is engaged, including, without limitation, soliciting business from or
performing services for, any persons, company or other entity which at any time
during the Executive's employment by the Company is a client, supplier, or
customer of the Company or prospective client, supplier, or customer of the
Company if such business or services are of the same general character as those
engaged in or performed by the Company;
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(ii) solicit
or otherwise induce any person to terminate his employment or consulting
relationship with the Company or any Affiliate; and
(iii) engage,
invest or assist in any business activity that directly or indirectly competes
with any business plan of the Company or any Affiliate.
In
addition, because the Executive acknowledges the difficulty of establishing when
any intellectual property, invention, or proprietary information is first
conceived or developed by the Executive, or whether it results from access to
Proprietary Information or the Company equipment, supplies, facilities, or data,
the Executive agrees that any intellectual property, invention, or proprietary
information shall be reported to the Company and, unless proven otherwise to the
reasonable satisfaction of the Company, shall be presumed to be an Invention (as
defined below) for the purpose of this Agreement and shall be subject to all
terms and conditions hereof, if reduced to practice by the Executive or with the
aid of the Executive within one (1) year after termination of the Initial Period
of Employment or Period of Employment, as applicable.
7.2 No
Competition. Notwithstanding Section 7.1 above, while employed
by the Company and for a period equal to the greater of one (1) year after the
termination of the Executive's employment with the Company for any reason
whatsoever, the Executive shall not, directly or indirectly, as an executive,
employer, employee, consultant, agent, principal, partner, manager, stockholder,
officer, director, or in any other individual or representative capacity, engage
or participate in any business within the PRC and/or Hong Kong that is
competitive with the business of the Company or any
Affiliate. Notwithstanding the foregoing, the Executive may own less
than one percent (1%) of any class of stock or security of any corporation
listed on an internationally recognized securities exchange which competes with
the Company.
7.3 Enforceability. The
covenants of this Article 7 are several and separate, and the unenforceability
of any specific covenant shall not affect the provisions of any other
covenant. If any provision of this Article 7 relating to the
time period or geographic area of the restrictive covenants shall be declared by
a court of competent jurisdiction to exceed the maximum time period or
geographic area, as applicable, that such court deems reasonable and
enforceable, then this Agreement shall automatically be considered to have been
amended and revised to reflect the maximum time period or geographic area that
such court deems enforceable.
7.4 Independent
Covenants. All of the covenants in this Article 7 shall
be construed as an agreement independent of any other provision in this
Agreement, and the existence of any claim or cause of action of the Executive
against the Company or any of its Affiliates, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of such covenants.
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8. Proprietary
Information.
The
Executive agrees during his employment with the Company and within three (3)
years thereafter, to hold in strictest confidence and trust, and not to use or
disclose to any person, firm or corporation any Proprietary Information without
the prior written consent of the Company, except as necessary in carrying out
his duties as an employee of the Company for the benefit of the
Company. "Proprietary
Information" means any information of a proprietary, confidential or
secret nature that may be disclosed to the Executive that relates to the
business of the Company or of any parent, subsidiary, Affiliate, customer or
supplier of the Company or any other party with whom the Company agrees to hold
information of such party in confidence ("Relevant
Parties"). Such Proprietary Information includes, but is not
limited to, Inventions (as defined below), research, product plans, products,
services, business strategies, personnel information, customer lists, customers,
markets, technical information, forecasts, marketing, finances or other business
information of the Company and its Affiliates. This information shall
remain confidential whether it was disclosed to the Executive either directly or
indirectly in writing, orally or by drawings or observation. The
Executive understands that Proprietary Information does not include any of the
foregoing items which has become publicly known and made generally available
through no wrongful act of the Executive or others who were under
confidentiality obligations as to the items involved.
9. Former Employer
Information.
The
Executive agrees that he will not, during his employment with the Company,
improperly use or disclose any proprietary information or trade secrets, or
bring onto the premises of the Company any unpublished document or proprietary
information belonging to any former or concurrent employer or other person or
entity (excluding any direct or indirect subsidiary of the
Company).
10. Third Party
Information.
The
Executive recognizes that the Company has received and in the future will
receive confidential or proprietary information from third
parties. The Executive agrees to hold all such confidential or
proprietary information in the strictest confidence and trust, and not to
disclose it to any person, firm or corporation or to use it except as necessary
in carrying out his work for the Company consistent with the Company's agreement
with such third party.
11. No Conflict.
The
Executive represents and warrants that the Executive's execution of this
Agreement, his employment with the Company, and the performance of his proposed
duties under this Agreement shall not violate any obligations he may have to any
former employer or other party, including any obligations with respect to
proprietary or confidential information or intellectual property rights of such
party.
12. Inventions.
12.1 Inventions Retained and
Licensed. The Executive has attached, as Exhibit B, a
list describing all inventions, original works of authorship, developments,
improvements, and trade secrets which were made by the Executive prior to the
Executive's employment with the Company ("Prior Inventions"),
which belong to the Executive, and which relate to the Company's actual and/or
proposed business, products or research and development. If, in the
course of his employment with the Company, the Executive incorporates into a
Company product, process or machine a Prior Invention owned by the Executive or
in which the Executive has an interest, the Company is hereby granted and shall
have a non-exclusive, royalty-free, irrevocable, perpetual, worldwide license to
make, have made, modify, use and sell such Prior Invention as part of or in
connection with such product, process or machine.
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12.2 Assignment of
Inventions. The Executive agrees that he will promptly make
full written disclosure to the Company, will hold in trust for the sole right
and benefit of the Company, and hereby irrevocably assigns to the Company, or
its designee, all the Executive's right, title, and interest in and to any and
all inventions, original works of authorship, developments, concepts,
improvements, designs, drawings, discoveries, ideas, formulas, processes,
compositions of matter, software, databases, mask works, computer programs
(including all source codes) and related documentation, algorithms, engineering
and reverse engineering, technology, hardware configuration information, logos,
trade names, trademarks, patents, patent applications, copyrights, trade secrets
or know-how, which the Executive may solely or jointly conceive or develop or
reduce to practice, or cause to be conceived or developed or reduced to practice
("Inventions"),
while the Executive is employed by the Company. The Executive further
acknowledges that all original works of authorship which are made by the
Executive (solely or jointly with others) within the scope of and during his
employment with the Company and which are protectible by copyright are "works made for hire,"
as that term is defined in the United States Copyright Act and that the Company
will be considered the author and owner of such works. The Executive
understands and agrees that the decision whether or not to commercialize or
market any Invention developed by the Executive solely or jointly with others is
within the Company's sole discretion and for the Company's sole benefit and that
no royalty will be due to the Executive as a result of the Company's efforts to
commercialize or market any such Invention.
12.3 Waiver of Moral
Rights. To the utmost extent legally permitted, the Executive
also hereby forever waives and agrees never to assert any and all Moral Rights
(as defined below) he may have in or with respect to any Invention, even after
termination of his work on behalf of the Company. "Moral Rights" mean
any rights to claim authorship of an Invention to object to or prevent the
modification of any Invention, or to withdraw from circulation or control the
publication or distribution of any Invention, and any similar right, existing
under judicial or statutory law of any country in the world, or under any
treaty, regardless of whether or not such right is denominated or generally
referred to as a "moral
right."
12.4 Maintenance of
Records. The Executive agrees to keep and maintain adequate
and current written records of all Inventions made by the Executive (solely or
jointly with others) during the Executive's employment with the
Company. The records will be in the form of notes, sketches,
drawings, and any other format that may be specified by the
Company. The records will be provided to, and remain the sole
property of, the Company at all times.
12.5 Patent and Copyright
Registrations. The Executive agrees to assist the Company, or
its designee, at the Company's expense, in every proper way, to secure the
Company's rights in the Inventions and any copyrights, patents, mask work
rights, trade secret rights or other intellectual property rights relating
thereto in any and all countries. The Executive will disclose to the
Company all pertinent information and data which the Company deems necessary for
the execution of all applications, specifications, oaths, assignments and
execute all instruments necessary to apply for and obtain such rights and in
order to assign and convey to the Company, its successors, assigns, and
nominees, the sole and exclusive right, title and interest in and to such
Inventions, and any copyrights, patents, mask work rights, or other intellectual
property rights relating thereto. The Executive further agrees that
the Executive's obligation to execute or cause to be executed, when it is in the
Executive’s power to do so, any such instrument or papers shall continue after
the termination of this Agreement. If the Company is unable, because
of the Executive's mental or physical incapacity or for any other reason, to
secure his signature to apply for or to pursue any application for any patents
or copyright registrations covering the Inventions assigned to the Company as
above, then the Executive hereby irrevocably designates and appoints the Company
and its duly authorized officers and agents as his agent and attorney in fact,
to act for and in the Executive's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of letters, patent or copyright registrations thereon
with the same legal force and effect as if executed by the
Executive.
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13. Alternative
Dispute Resolution.
The
Company and Executive mutually agree that any controversy or claim arising out
of or relating to this Agreement or the breach thereof, or any other dispute
between the parties, shall be submitted to mediation before a mutually agreeable
mediator, which cost is to be borne equally by the parties hereto. In the event
the Parties fail to agree on a mediator, or mediation is unsuccessful in
resolving the claim or controversy within one (1) month after the commencement
of mediation, such claim or controversy shall be resolved by arbitration in Hong
Kong under the auspices of the Hong Kong International Arbitration
Centre.
14. Miscellaneous.
14.1 Continuing
Obligations. The obligations in this Agreement will continue
in the event that the Executive is hired, renders services to or for the benefit
of or is otherwise retained at any time by any present or future Affiliates of
the Company. Any reference to the Company in this Agreement will
include such Affiliates. Upon the expiration or termination for
any reason whatsoever of this Agreement, the Executive shall forthwith resign
from any employment of office with an Affiliate of the Company unless the board
of directors of the Company requests otherwise.
14.2 Notification. The
Executive hereby authorizes the Company to notify his actual or future employers
of the terms of this Agreement and his responsibilities hereunder.
14.3 Name and Likeness
Rights. The Executive hereby authorizes the Company to use,
reuse, and to grant others the right to use and reuse, his name, photograph,
likeness (including caricature), voice, and biographical information, and any
reproduction or simulation thereof, in any media now known or hereafter
developed (including but not limited to film, video and digital or other
electronic media), both during and after his employment, for whatever purposes
the Company deems necessary.
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14.4 Injunctive
Relief. The
Executive understands that in the event of a breach or threatened breach of this
Agreement by him, the Company may suffer irreparable harm and will therefore be
entitled to injunctive relief to enforce this Agreement.
14.5 Legal
Fees. In any dispute arising under or in connection with this
Agreement, the prevailing party shall be entitled to recover reasonable
attorney's fees.
14.6 Entire
Agreement. This Agreement, including the exhibits attached
hereto, is intended to be the final, complete, and exclusive statement regarding
their subject matter, except for other agreements specifically referenced
herein. Unless otherwise specifically provided for herein, this
Agreement supersedes all other prior and contemporaneous agreements and
statements pertaining to this subject matter, and may not be contradicted by
evidence of any prior or contemporaneous statements or agreements. To
the extent that the practices, policies, or procedures of the Company, now or in
the future, apply to the Executive and are inconsistent with the terms of this
Agreement, the provisions of this Agreement shall control.
14.7 Amendments, Renewals and
Waivers. This Agreement may not be modified, amended, renewed
or terminated except by an instrument in writing, signed by the Executive and by
a duly authorized representative of the Company other than the
Executive. No failure to exercise and no delay in exercising any
right, remedy, or power under this Agreement shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, remedy, or power under
this Agreement preclude any other or further exercise thereof, or the exercise
of any other right, remedy, or power provided herein or by law or in
equity.
14.8 Assignment; Successors and
Assigns. The Executive agrees that he will not assign, sell,
transfer, delegate or otherwise dispose of, whether voluntarily or
involuntarily, or by operation of law, any rights or obligations under this
Agreement, nor shall the Executive's rights be subject to encumbrance or the
claims of creditors. Any purported assignment, transfer, or
delegation shall be null and void. Nothing in this Agreement shall
prevent the consolidation of the Company with, or its merger into, any other
corporation, or the sale by the Company of all or substantially all of its
properties or assets, or the assignment by the Company of this Agreement and the
performance of its obligations hereunder to any successor in
interest. In the event of a change in ownership or control of the
Company, the terms of this Agreement will remain in effect and shall be binding
upon any successor in interest. Notwithstanding and subject to
the foregoing, this Agreement shall be binding upon and shall inure to the
benefit of the parties and their respective heirs, legal representatives,
successors, and permitted assigns, and shall not benefit any person or entity
other than those enumerated above.
14.9 Notices. All
notices and other communications given or made pursuant hereto shall be in
writing and shall be deemed to have been duly given or made as of the date
delivered or mailed if delivered personally or by nationally recognized courier
or mailed by registered mail (postage prepaid, return receipt requested) or by
telecopy to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice, except that notices of changes of
address shall be effective upon receipt):
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To:
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Company
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Contact
Address:
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AutoChina
International Limited
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Xx.000,
Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxxxx,
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Xxxxx
Xxxxxxxx 000000, People’s Republic of China
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Attention:
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Chief
Executive Officer
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Facsimile
Number:
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x00
000 0000 0000
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To:
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Executive
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Contact
Address:
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c/o
AutoChina International Limited
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Xx.000,
Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxxxx,
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Xxxxx
Xxxxxxxx 000000, People’s Republic of China
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Attention:
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Xxxxx
Xxxx
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Facsimile
Number:
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x00
000 0000 0000
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14.10 [Reserved]
14.11 Waiver of
Immunity. To the extent that any Party (including its
assignees of any such rights or obligations hereunder) may be entitled, in any
jurisdiction, to claim for itself (or himself or herself) or its revenues or
assets or properties, immunity from service of process, suit, the jurisdiction
of any court, an interlocutory order or injunction or the enforcement of the
same against its property in such court, attachment prior to judgment,
attachment in aid of execution of an arbitral award or judgment (interlocutory
or final) or any other legal process, and to the extent that, in any such
jurisdiction there may be attributed such immunity (whether claimed or not),
such Party hereby irrevocably waive such immunity.
14.12 Severability;
Enforcement. If any provision of this Agreement, or its
application to any person, place, or circumstance, is held by an arbitrator or a
court of competent jurisdiction to be invalid, unenforceable, or void, such
provision shall be enforced (by blue-penciling or otherwise) to the maximum
extent permissible under applicable law, and the remainder of this Agreement and
such provision as applied to other persons, places, and circumstances shall
remain in full force and effect.
14.13 Governing
Law. This Agreement shall in all respects be construed and
enforced in accordance with and governed by the laws of Hong Kong.
14.14 Interpretation. This
Agreement shall be construed as a whole, according to its fair meaning, and not
in favor of or against any party. Sections and section headings
contained in this Agreement are for reference purposes only, and shall not
affect in any manner the meaning or interpretation of this
Agreement. Whenever the context requires, references to the singular
shall include the plural and the plural the singular. References to
one gender include both genders.
14.15 Obligations Survive
Termination of Employment. The Executive agrees that any and
all of the Executive's obligations under this Agreement capable of execution
after the termination of the Executive employment, including but not limited to
those contained in exhibits attached hereto, shall survive the termination of
employment and the termination of this Agreement.
11
14.16 Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed an original of this Agreement, but all of which together shall constitute
one and the same instrument.
12
EXECUTIVE
ACKNOWLEDGEMENT. The Executive acknowledges (i) that he has consulted
with or has had the opportunity to consult with independent counsel of his own
choice concerning this Agreement and has been advised to do so by the Company,
and (ii) that he has read and understands the Agreement, is fully aware of its
legal effect, and has entered into it freely based on his own
judgment. The Executive hereby agrees that his obligations set forth
in Sections 7, 8, and 9 hereof and the definitions of Proprietary Information
and Inventions contained therein shall be equally applicable to Proprietary
Information and Inventions relating to any work performed by the Executive for
the Company prior to the execution of this Agreement.
The
parties have duly executed this Agreement as of the date first written
above.
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EXECUTIVE:
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/s/
Xxxxx Xxxx
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Name:
Xxxxx Xxxx
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COMPANY:
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AUTOCHINA
INTERNATIONAL LIMITED
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By:
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/s/ Yong Xxx
Xx
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Name:
Yong Xxx Xx
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Title: Chairman
and Chief Executive Officer
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EXHIBIT
A
TERMINATION
CERTIFICATE
This is to certify that I have returned
all personal property of AutoChina International Limited (the "Company") and the
Relevant Parties, including, without limitation, all books, manuals, records,
models, drawings, reports, notes, contracts, lists, blueprints, and other
documents and materials, electronic data recorded or retrieved by any means,
Proprietary Information, and equipment furnished to or prepared by me in the
course of or incident to my employment with the Company, and that I did not make
or distribute any copies of the foregoing.
I further certify that I have reviewed
the Executive Employment Agreement (the "Agreement") signed by
me and that I have complied with and will continue to comply with all of its
terms, including, without limitation, (i) the reporting of any Inventions
or any improvement, rights, or claims related to the foregoing, conceived or
developed by me and covered by the Agreement; (ii) the preservation as
confidential of all Proprietary Information pertaining to the Company and the
Relevant Parties; (iii) not participating in any business competitive with the
business of the Company; (iv) not acting as the legal representative or an
executive officer of any other company within and outside the People’s Republic
of China, and (v) the reporting of any remuneration paid to me due to any
employment or self-employment during the severance period, if
any. This certificate in no way limits my responsibilities or the
Company's rights under the Agreement.
On termination of my employment with
the Company, I will be employed by [name of new employer] in the [division name] division and I
will be working in connection with the following projects:
[generally
describe the projects]
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Date:
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Print
Executive's Name
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Executive's
Signature
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EXHIBIT B
LIST
OF PRIOR INVENTIONS
AND
ORIGINAL WORKS OF AUTHORSHIP
Title Date
Identifying Number or
Brief Description
______X______ No
inventions or
improvements
____________ Additional
Sheets Attached
Signature
of Executive: /s/ Xxxxx
Xxxx
Printed
Name of Executive: Xxxxx
Xxxx
Date: July 16, 2009
