EMPLOYMENT AGREEMENT
Exhibit
10.4
Exhibit
C to Stock Purchase Agreement
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is entered into as of _______________, 2009, by and between [NAME
OF EMPLOYER], a __________ corporation (the “Company”), and _________, an
individual (the “Executive”).
WHEREAS, the Board of Directors of the
Company (the “Board”), has determined that it is in the best interests of the
Company and its shareholders to assure that the Company will have the continued
dedication of Executive; and
WHEREAS, in order to accomplish these
objectives, the Board has caused the Company to enter into this
Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS
FOLLOWS:
1. Employment
Period. The Company hereby agrees to continue Executive in its
employ, and Executive hereby agrees to remain in the employ of the Company, for
the period commencing on the date of the closing of the transactions
contemplated by that certain Stock Purchase Agreement (the “Stock Purchase
Agreement”) dated September __, 2009 among CS China Acquisition Corp., Asia
Gaming and Resort Ltd. and Spring Fortune Investment Ltd and ending on the fifth
anniversary of such date (the “Employment Period”).1
2. Terms of
Employment.
(a) Position and
Duties.
(i) During
the Employment Period, (A) Executive’s position, authority, duties and
responsibilities shall be that of __________________, and (B)
Executive’s services shall be performed at the Company’s principal executive
offices in ____________.
(ii) During
the Employment Period, and excluding any periods of vacation and sick leave to
which Executive is entitled, Executive agrees to devote his full attention and
time during normal business hours to the business and affairs of the Company and
to use Executive’s best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a
violation of this Agreement for Executive to (A) serve on civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of
Executive’s responsibilities as an employee of the Company in accordance with
this Agreement.
(b) Compensation.
(i) Salary. During
the Employment Period, Executive shall receive an annual base salary (“Salary”)
at least equal to $_______. Such Salary shall be payable [monthly] in
cash, subject to withholding and deductions pursuant to Section
10(d).
1 Length of Employment Period may vary,
depending upon position of Executive.
(ii) Expenses. During
the Employment Period, Executive shall be entitled to receive prompt
reimbursement for all reasonable business expenses incurred by Executive in
accordance with the policies, practices and procedures of the Company and its
subsidiaries provided to other key management employees of the Company and its
subsidiaries.
(iii) Automobile. During
the Employment Period, Executive shall be entitled to the reasonable use of
Company-owned automobiles made available by the Company for use by Executive and
other key management employees, subject to the reasonable use by such other key
management employees, and reimbursement by the Company for all reasonable
expenses related to the use and operation of such automobile.
(iv) Vacation. During
the Employment Period, Executive shall be entitled to paid vacation in
accordance with Company policies.
3. Termination.
(a) Death or
Disability. This Agreement shall terminate automatically upon
Executive’s death. If the Company determines in good faith that the
Disability of Executive has occurred (pursuant to the definition of “Disability”
set forth below), it will give to Executive written notice of its intention to
terminate Executive’s employment. In such event, Executive’s
employment with the Company shall terminate effective on the 30th day after the
date of such notice (the “Disability Effective Date”), provided that, within
such time period, Executive shall not have returned to full-time performance of
Executive’s duties. For purposes of this Agreement, “Disability”
means disability (either physical or mental) which (i) materially and adversely
affects Executive’s ability to perform the duties required of his office, and
(ii) is determined to be total and permanent by a physician selected by the
Company or its insurers and acceptable to Executive or Executive’s legal
representative (such agreement as to acceptability not to be withheld
unreasonably).
(b) Cause. The
Company may terminate Executive’s employment for “Cause.” For
purposes of this Agreement, termination of Executive’s employment by the Company
for Cause shall mean termination for one of the following reasons: (i) the
conviction of Executive of a felony by a court of competent jurisdiction; (ii)
an act or acts of dishonesty taken by Executive and intended to result in
substantial personal enrichment of Executive at the expense of the Company; or
(iii) Executive’s failure to follow a direct, reasonable and lawful written
order from the Board, within the reasonable scope of Executive’s duties, which
failure is not cured within 5 days.
(d) Notice of
Termination. Any termination by the Company for Cause shall be
communicated by Notice of Termination to Executive given in accordance with
Section 10(b) of this Agreement. For purposes of this Agreement, a
“Notice of Termination” means a written notice which (i) indicates the specific
termination provisions in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of Executive’s employment under the provision so indicated and (iii)
if the Date of Termination (as defined below) is other than the date of receipt
of such notice, specifies the termination date. The failure by the
Company to set forth in the Notice of Termination any fact or circumstance which
contributes to a showing of Cause shall not waive any right of the Company
hereunder or preclude the Company from asserting such fact or circumstance in
enforcing its rights hereunder.
(e) Date of
Termination. “Date of Termination” means the date of receipt
of the Notice of Termination by Executive or any later date specified therein;
provided, however, that if Executive’s employment is terminated by reason of
death or Disability, the Date of Termination shall be the date of death of
Executive or the Disability Effective Date, as the case may be.
2
4. Obligations of the Company
upon Termination.
(a) Death. If
Executive’s employment is terminated by reason of Executive’s death, this
Agreement shall terminate without further obligations to Executive’s legal
representatives under this Agreement, other than those obligations accrued or
earned and vested (if applicable) by Executive as of the Date of Termination,
which shall be paid to Executive’s estate or beneficiary, as applicable, in a
lump sum in cash within 30 days of the Date of Termination.
(b) Disability. If
Executive’s employment is terminated by reason of Executive’s Disability, this
Agreement shall terminate without further obligations to Executive, other than
those obligations accrued or earned and vested (if applicable) by Executive as
of the Date of Termination, which shall be paid to Executive in a lump sum in
cash within 30 days of the Date of Termination.
(c) Cause. If
Executive’s employment shall be terminated by the Company for Cause, this
Agreement shall terminate without further obligations to Executive other than
the obligation to pay to Executive the Salary accrued through the Date of
Termination.
5. Transfer; Forfeiture of
Securities. During the Employment Term, Executive shall not,
during any calendar year, sell, hypothecate or otherwise transfer more than
twenty percent (20%) of the shares of stock (including shares of stock issued
upon the exercise of warrants) of CS China Acquisition Corp. that Executive
receives as a result of the transactions contemplated by the Stock Purchase
Agreement. If Executive’s employment is terminated for any reason
prior to the expiration of the Employment Term, or upon a breach by Executive of
the provisions of Section 6 or Section 7, Executive shall transfer and assign
all such shares then held by Executive to CS China Acquisition Corp., together
with any rights Executive has to receive further shares and warrants thereafter,
and all such securities shall be canceled. The certificates
representing such shares shall bear a legend stating the restrictions of this
Section 5.
6. Confidential
Information. Executive shall hold in a fiduciary capacity for the benefit
of the Company all secret or confidential information, knowledge or data
relating to the Company or any of its subsidiaries, and their respective
businesses, which shall have been obtained by Executive during Executive’s
employment by the Company or any of its subsidiaries and which shall not be or
become public knowledge (other than by acts by Executive or his representatives
in violation of this Agreement). After termination of Executive’s
employment with the Company, Executive shall not, without the prior written
consent of the Company, communicate or divulge any such information, knowledge
or data to anyone other than the Company and those designated by
it.
7. Non-competition and
Non-solicitation.
(a) Executive
agrees that during his employment by the Company, and during the eight (8) year
period following the termination of Executive’s employment with the Company,
regardless of the reason for termination (collectively the “Restricted Period”),
Executive shall not, directly or indirectly:
(i) whether
as an individual, partner, joint venturer, owner, manager, stockholder,
employee, partner, officer, director, consultant, independent contractor, or
other such role, render services to, become employed by, own, or have a
financial or other interest in any Competitive Business (as defined in Section
7(b)); or
3
(ii) solicit,
recruit, induce, offer, assist, encourage or suggest (A) that another business
or enterprise offer employment to or enter into a business affiliation with any
Company employee, agent, contractor, or representative, or (B) that any Company
employee, agent or representative terminate or modify his or her employment or
business affiliation with the Company.
(b) For
purposes of this Agreement, the term “Competitive Business”
means any person, business or enterprise engaged in the operation or management
of casinos or gaming activities in any jurisdiction in which the Company is
engaged in the management of casinos or gaming or junket activities or in which
the Company has profit interests in casinos or gaming or junket
activities.
8. Remedy for
Breach. Executive
acknowledges and agrees that his breach of any of the covenants contained in
Section 6 and Section 7 (the “Restrictive
Covenants”) of this Agreement will cause irreparable injury to the
Company and that remedies at law available to the Company for any actual or
threatened breach by Executive of such covenants will be inadequate and that the
Company shall be entitled to specific performance of the covenants in this
Article 4 or injunctive relief against activities in violation of the
Restrictive Covenants by temporary or permanent injunction or other appropriate
judicial remedy, writ or order, without the necessity of proving actual
damages. This provision with respect to injunctive relief shall not
diminish the right of the Company to claim and recover monetary damages against
Executive for any breach of this Agreement, in addition to injunctive
relief. Executive acknowledges and agrees that the Restrictive
Covenants shall be construed as agreements independent of any other provision of
this or any other contract between the parties hereto, and that the existence of
any claim or cause of action by Executive against the Company, whether
predicated upon this or any other contract, shall not constitute a defense to
the enforcement by the Company of said covenants.
9. Successors.
(a) This
Agreement is personal to Executive and without the prior 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 legal
representatives.
(b) This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
10. Miscellaneous.
(a) This
Agreement shall be governed by and construed in accordance with the law of
_________,2
without reference to principles of conflicts of law. The captions of
this Agreement are not part of the provisions hereof and shall have no force or
effect. This Agreement may not be amended or modified and no consent
may be given hereunder otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives that is
approved by a majority plus one of the directors of ________3 then in
office.
(b) All
notices and other communications hereunder shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
3 Insert
“the Company” if the employer is [CS China Acquisition Corp.] and “[CS China
Acquisition Corp.]” if the employer is a subsidiary.
4
If to
Executive:
At
Executive’s last known address evidenced on the Company’s payroll
records.
If to the
Company:
[Name of Employer]
[Address]
Attention:
_________________________
With a copy
to:
[Attorneys for Employer
Corporation]
or to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
(d) The
Company may withhold from any amounts payable under this Agreement such taxes
and other deductions as shall be required to be withheld pursuant to any
applicable law or regulation.
(e) This
Agreement contains the entire understanding of the Company and Executive with
respect to the subject matter hereof.
11. No
Trust. No obligation of the Company under this Agreement shall
be construed as creating a trust, escrow or other secured or segregated fund, in
favor of Executive or his beneficiary. The status of Executive and
Executive’s beneficiary with respect to any liabilities assumed by the Company
hereunder shall be solely those of unsecured creditors of the
Company. Any asset acquired or held by the Company in connection with
liabilities assumed by it hereunder shall not be deemed to be held under any
trust, escrow or other secured or segregated fund for the benefit of Executive
or Executive’s beneficiary or to be security for the performance of the
obligations of the Company, but shall be, and remain a general, unhypothecated,
unrestricted asset of the Company at all times subject to the claims of general
creditors of the Company.
IN WITNESS WHEREOF, Executive has
hereunto set his hand and, pursuant to the authorization from its Board of
Directors, the Company has caused these presents to be executed in its name on
its behalf, all as of the day and year first above written.
|
EXECUTIVE:
|
|
[Name]
|
|
COMPANY:
|
|
[EMPLOYER
CORPORATION]
|
5
|
By
|
|
|
[Name
and Title]
|
6
