EMPLOYMENT AGREEMENT
Exhibit
10.9
EMPLOYMENT AGREEMENT made as
of May 24, 2010 , between Xxxxx Xxx Industry Corporation, a Nevada corporation,
with the address of Daokou Industry Park,
Yingli Town, Shouguang, Shandong P.R. China, 262717 (hereinafter
referred to as “Employer” or “Company”) and Shan Junfeng, an individual residing
at Apartment 0-0-000, Xx. 0 Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxx, Xxxxxxxx xxxxxxxx,
Xxxxx. (hereinafter referred to as “Employee”)
WHEREAS, Employer employs
Employee as Chairman of the Board of Directors and Chief Executive Officer of
Employer; and
WHEREAS, Employee is willing
to act as the Chairman of the Board of Directors and Chief Executive Officer of
Employer in the manner provided for herein, and to perform the duties of the
Chairman of the Board of Directors and Chief Executive Officer of Employer upon
the terms and conditions herein set forth;
NOW, THEREFORE, in
consideration of the promises and mutual covenants herein set forth it is agreed
as follows:
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1.
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Employment of Chairman of the
Board of Directors and Chief Executive
Officer.
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Employer
hereby employs Employee as Chairman of the Board of Directors and Chief
Executive Officer of Employer.
2.
Term.
Subject
to Section 9 below and further subject to Section 2(b) below, the term of this
Agreement shall be three years effective from the date hereof through April 30,
2013. During the term hereof, Employee shall devote substantially all
of his business time and efforts to the Employer and its subsidiaries and
affiliates.
3. Duties.
The
Employee shall perform those functions generally performed by persons of such
title and position, shall attend all meetings of the stockholders and the Board,
shall perform any and all related duties and shall have any and all powers as
may be prescribed by resolution of the Board, and shall be available to confer
and consult with and advise the officers and directors of Employer at such times
that may be required by Employer. Employee shall report directly and solely to
the Board.
4.
Compensation.
In
exchange for Employee’s service, the Company shall provide him an annual salary
payable at the rate of RMB 180,000 per annum, payable in accordance with the
Company’s normal payroll practices.
5. Expenses.
Employee
shall be reimbursed for all of his actual out-of-pocket expenses incurred in the
performance of his duties hereunder, provided such expenses are acceptable to
Employer, which approval shall not be unreasonably withheld, for business
related travel and entertainment expenses, and that Employee shall submit to
Employer reasonably detailed receipts with respect thereto.
6. Vacation.
Employee
shall be entitled to receive two (2) weeks paid vacation time after each year of
employment upon dates agreed upon by Employer. Upon separation of employment,
for any reason, vacation time accrued and not used shall be paid at the salary
rate of Employee in effect at the time of employment separation.
7.
Confidentiality.
At no
time shall Employee disclose to anyone any confidential or secret information
(not already constituting information available to the public), including, but
not limited to (a) internal affairs, financial information or proprietary
business operations of Employer or (b) any trade secrets, new product
developments, patents, programs or programming, especially unique processes or
methods (‘Confidential Information”), whether prepared by the Employee or
others. Upon the request of the Company, all Confidential Information, including
all copies, documents, computers, devices or books containing Confidential
Information and all other property of the Company, shall be
immediately returned to the Company.
8. Covenant Not to
Compete.
Employee
acknowledges and confirms that the Company is placing its confidence and trust
in Employee. Accordingly, Employee covenants and agrees that he will not, during
the term of his employment, and for a period of one (1) year after the
termination of employment for any reason, either directly or indirectly, engage
in any business, either directly or indirectly (whether as a creditor,
guarantor, financial backer, stockholder, director, officer, consultant,
advisor, employee, member, inventor, producer, or otherwise), with or for any
company, enterprise, institution, organization
or other legal entity (whether a sole proprietorship, a corporation, a
partnership, a limited liability company, an association, or otherwise, and
whether or not for profit), which is in competition with the Duck Business (as
defined herein) of the Company. .
As used in this Agreement, the term “Duck Business” shall mean duck
feeding, duck breeding, duck feed production, duck slaughtering, cold storage,
and sale of duck food.
During
the term of his employment and for one (1) year period after the termination
of employment for any reason, the Employee will not interfere with
any business relationship between the Employer and any of its customers,
suppliers, distributors, agents or brokers.
9.
Termination.
a.
Termination by Employer
(i)
Employer may terminate this Agreement upon written notice for Cause. For
purposes hereof, “Cause” shall mean (A) engaging by the Employee in conduct that
constitutes activity in competition with Employer; (B) the conviction of
Employee, for the commission of a felony; and/or (C) the habitual abuse of
alcohol or controlled substances. Notwithstanding anything to the contrary in
this Section 9(a) (i), Employer may not terminate Employee’s employment under
this Agreement for Cause unless Employee shall have first received notice from
the Board of Directors advising Employee of the specific acts or omissions
alleged to constitute Cause, and such acts or omissions continue after Employee
shall have had a reasonable opportunity (at least 10 days from the date Employee
receives the notice from the Board) to correct the acts or omissions so
complained of. In no event shall alleged incompetence of Employee in the
performance of Employee’s duties be deemed grounds for termination for
Cause.
(ii)
Employer may terminate Employee’s employment under this Agreement if, as a
result of any physical or mental disability, Employee fails or is unable to
perform his duties under this Agreement for any consecutive period of 90 days
during any twelve-month period.
b.
Termination by Employee
(i)
Employee shall have the right to terminate his employment under this Agreement
upon 30 days notice to Employer given within 90 days following the occurrence
of any of the following events (A) through (D) .
(A)
Employer acts to materially reduce Employee’s duties and responsibilities
hereunder. Employee’s duties and responsibilities shall not be deemed materially
reduced for purposes hereof solely by virtue of the fact that Employer is (or
substantially all of its assets are) sold to, or is combined with, another
entity, provided that Employee shall continue to have the same duties and
responsibilities with respect to Employer’s interactive business, and Employee
shall report directly to the chief executive officer and/or board of directors
of the entity (or individual) that acquires Employer or its assets.
(B) A
Material Reduction (as hereinafter defined) in Employee’s rate of base
compensation, or Employee’s other benefits. “Material Reduction”
shall mean a ten percent (10%) differential;
(C) A
failure by Employer to obtain the assumption of this Agreement by any
successor;
(D) A
material breach of this Agreement by Employer, which is not cured within thirty
(30) days of written notice of such breach by Employer;
(ii)
Anything herein to the contrary notwithstanding, Employee may terminate this
Agreement upon thirty (30) days written notice.
x. Xxxxxxxxx In
the event of termination of employment by Employee pursuant to Sections 9(a)
(ii) or 9(b), Employee shall be entitled to receive from
the Company an amount equal to (i) the lesser of (A) any amounts due under
Section 4 until the end of the term of this Agreement or (B) the Employee’s
salary payable under Section 4 for a period of one year after the date of
termination and (ii) any compensation due for any accrued but unused vacation
time as of the date of termination. Payments under this Section 9(c) shall be in
full settlement of the Company’s obligations with respect to the termination of
Employee.
10. Remedies.
a. Any
controversies between Employer and Employee involving the construction or
application of any of the terms, provisions or conditions of this Agreement,
save and except for any breaches arising out of Sections 7 and 8 hereof, shall
on the written request of either party served on the other be submitted to
arbitration. Such arbitration shall comply with and be governed by the rules of
the American Arbitration Association. An arbitration demand must be made within
one (1) year of the date on which the party demanding arbitration first had
notice of the existence of the claim to be arbitrated, or the right to
arbitration along with such claim shall be considered to have been waived. An
arbitrator shall be selected according to the procedures of the American
Arbitration Association. The cost of arbitration shall be born by the losing
party or in such proportions as the arbitrator shall decide. The arbitrator
shall have no authority to add to, subtract from or otherwise modify the
provisions of this Agreement, or to award punitive damages to either
party.
b. The
Employee acknowledges that if the Employee shall breach or threaten to breach
any provision of subsections 10(a) through (c), the damages to the Employer may
be substantial, although difficult to ascertain, and money damages will not
afford the Employer an adequate remedy. Therefore, if the provisions of Sections
7 or 8 are violated, in whole or in part, the Employer shall be entitled to
specific performance and injunctive relief, without prejudice to other remedies
the Employer may have at law or in equity.
11. Attorneys Fees and
Costs.
If any
action at law or in equity is necessary to enforce or interpret the terms of
this Agreement, the .
prevailing party shall be entitled to reasonable attorney’s fees, costs
and necessary disbursements in addition to any other relief to which he may be
entitled.
12. Entire Agreement;
Survival.
This
Agreement, contains the entire agreement between the parties with respect to the
transactions contemplated herein and supersedes, any prior agreement or
understanding between Employer and Employee with respect to Employee’s
employment by Employer. The unenforceability of any provision of this Agreement
shall not affect the enforceability of any other provision. This Agreement may
not be amended except by an agreement in writing signed by the Employee and the
Employer, or any waiver, change, discharge or modification as sought. Waiver of
or failure to exercise any rights provided by this Agreement and in any respect
shall not be deemed a waiver of any further or future rights.
The
provisions of Sections 4, 7, 8, 9(a) (ii), 10, 11, 12, 14, 15, and 16 shall
survive the termination of this Agreement.
13. Assignment.
This
Agreement shall not be assigned to other parties by Employee.
14.
Governing Law.
This
Agreement and all the amendments hereof, and waivers and consents with respect
thereto shall be governed by the internal laws of the state of Nevada, without
regard to the conflicts of laws principles thereof.
15. Notices.
All
notices, responses, demands or other communications under this Agreement shall
be in ‘writing and shall be deemed to have been given when
a.
delivered by hand;
b. sent
be telex or telefax, (with receipt confirmed), provided that a copy is mailed by
registered or certified mail, return receipt requested; or
c.
received by the addressee as sent be express delivery service (receipt
requested) in each case to the appropriate addresses, telex numbers and telefax
numbers as the party may designate to itself by notice to the other
parties:
(i) if to the Employer:
Daokou Industry Park, Yingli Town, Shouguang, Shandong P.R. China,
262717, Attention: Shan Jufeng
(ii) if
to the Employee: Apartment 0-0-000, Xx. 0 Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxx,
Xxxxxxxx province, China.
16. Severability of
Agreement.
Should
any part of this Agreement for any reason be declared invalid by a court of
competent jurisdiction, such decision shall not affect the validity of any
remaining portion, which remaining provisions shall remain in full force and
effect as if this Agreement had been executed with the invalid portion thereof
eliminated, and it is hereby declared the intention of the parties that they
would have executed the remaining portions of this Agreement without including
any such part, parts or portions which may, for any reason, be hereafter
declared invalid.
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REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK -
IN
WITNESS WHEREOF, the undersigned have executed this agreement as of the day and
year first above written.
Xxxxx Xxx
Industry Corporation
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By:
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/s/ Shidian
Shan
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Name:
Shidian Shan
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Title:
VP
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Employee:
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/s/ Shan
Junfeng
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Name: Shan
Junfeng
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