EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT
(this "Agreement") is entered into this 15th day of November, 2010, by and
between Birch Branch Inc. (the "Company"), and Xxxx Xxx at 203 2# 43 ShuiTun
Road, TianQiao district, Jinan City, Shandong Province, China 250101
(the "Executive") (collectively, the “Parties”).
WHEREAS, the Company is a
publicly traded company with its shares of common stock quoted on the OTC
Bulletin Board under the trading symbol “BRBH”; and
WHEREAS, the Company wishes to
employ the Executive as Chief Financial Officer upon the terms and conditions
set forth in this Agreement and the Executive is willing to accept such
employment subject to the terms and conditions set forth below.
NOW, THEREFORE, in
consideration of the foregoing, of the mutual promises contained herein and of
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
1. Employment.
(a) Position and
Duties.
(i) Subject
to the terms and conditions hereof, the Company hereby employs the Executive
during the term of employment set forth in Section 2 to serve as Chief Financial
Officer of the Company and perform the duties and services as are normally and
customarily associated with such position, including assisting the Company with
(A) financing through a private and/or public offering and (B) application for
listing on a senior exchange (the “Senior Exchange”), including the New York
Stock Exchange, NYSE-Amex, NASDAQ Global Select, NASDAQ Global Market and NASDAQ
Capital Market, as well as such other associated duties as the board of
directors of the Company (the “Board”) shall reasonably determine. The Executive
shall report directly to the Chief Executive Officer of the Company. The
Executive shall obey the lawful direction of the Chief Executive Officer and
shall use his diligent efforts to promote the interests of the Company and to
maintain and promote the reputation thereof.
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(ii) During
the Employment Term set forth in Section 2 hereof, the Executive shall use his
best efforts to perform his duties under this Agreement and shall devote such
time, energy and skill as is necessary in the performance of his duties with the
Company. The Executive will not, unless as a representative of the Company or
with consent in writing of the Board, be directly or indirectly engaged or
concerned in any other business activities. Notwithstanding the foregoing
provisions, the Executive is not prohibited from (A) participating in
charitable, civic, educational, professional or community affairs or serving on
the board of directors or advisory committees of non-profit entities; and (B)
managing his and his family’s personal investments, in each case, provided that such activities
in the aggregate do not materially interfere with his duties
hereunder. Company agrees that the Executive’s other activities will
not and do not impede his ability to perform his role under this
Agreement.
2. Employment
Term. Subject to Section 4 herein, the term of employment of the
Executive under this Agreement shall start on November 15, 2010 and expire on
November 14, 2013 (the “Employment Term”).
3. Compensation.
(a) Base
Salary. In consideration of the services to be rendered
hereunder, the Company hereby agrees to pay the Executive an annual base salary
of Three Hundred Thousand RMB (300,000 RMB) (the “Base Salary”) payable in equal
monthly installments.
(b) Stock Option. Subject
to other provisions hereof and the terms and conditions set forth in the Stock
Option Agreement between the Company and the Executive, the Company agrees to
grant the Executive a four-year stock option (the “Stock Option”) to purchase a
total of 318,250 shares of the Company’s common stock (the “Common Stock”) at an
exercise price of $4.00 per share, equal to the closing bid price of the
Company’s common stock as of the date hereof. The Stock Option shall vest and
become exercisable on November 14, 2013 (the “Vesting Date”) , provided that the Executive
has served the full Employment Term and the Company is listed on the Senior
Exchange on the Vesting Date.
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4. Termination. Executive’s employment
and the Employment Term shall terminate on the first of the following to
occur:
(a) Disability. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Term (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance with
Section 7 of this Agreement of its intention to terminate the Executive
Employment. In such event, the Executive’s employment shall terminate effective
on the thirtieth (30th) day
following receipt of such notice by the Executive, provided that within 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive’s duties. For purposes of this Agreement,
"Disability" shall mean a determination by the Company in accordance
with applicable law that due to a physical or mental injury, infirmity or
incapacity, the Executive is unable to perform the essential functions of his
job with or without accommodation for 180 days (whether or not consecutive)
during any 12-month period.
(b) Death. The
Executive’s employment shall automatically terminate on the date of death of the
Executive during the Employment Term.
(c) Cause. The
Company may immediately terminate the Executive’s employment upon written notice
of termination by the Company to the Executive for Cause. "Cause" shall mean, as
determined by the Board (or its designee) (1) conduct by the Executive in
connection with his employment duties or responsibilities that is fraudulent,
unlawful or grossly negligent; (2) the willful misconduct of the Executive; (3)
the willful and continued failure of the Executive to perform the Executive's
duties with the Company (other than any such failure resulting from incapacity
due to physical or mental illness); (4) the commission by the Executive of any
felony or any crime involving moral turpitude; (5) violation of any material
policy of the Company or any material provision of the Company's code of
conduct, employee handbook or similar documents; or (6) any material breach by
the Executive of any provision of this Agreement or any other written agreement
entered into by the Executive with the Company.
(d)
Termination other than
for Cause. The Company shall have the right to terminate the Executive's
employment hereunder for any reason at any time, including for any reason that
does not constitute Cause, subject to the consequences of such termination as
set forth in this Agreement.
(a) Resignation for Good
Reason. The Executive may voluntarily terminate his employment hereunder
for Good Reason on the 60th day after the delivery of a written notice to the
Company. For the purpose of this Agreement, “Good Reason” shall
mean:
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(i) the
assignment of the Executive to a position in which the Executive’s authority,
duties and responsibilities are materially diminished from the authority, duties
or responsibilities as contemplated by Section 1 of this Agreement or any
other action taken by the Company or its affiliated companies which
results in a material , diminution in such position, authority, duties or
responsibilities, excluding for this purpose an isolated and insubstantial
action not taken in bad faith and which is remedies by the Company promptly
after receipt of notice thereof given by the Executive;
(ii) any
failure by the Company or its affiliated companies to comply with any of the
provisions of Section 3 of this Agreement, other than an isolated, insubstantial
and inadvertent failure not occurring in bad faith and which is
remedies by the Company promptly after receipt of notice thereof given by the
Executive; or
(iii)
any material change in the Executive's reporting responsibilities;
However,
in no event shall the Executive be considered to have terminated his employment
for "Good Reason" unless and until the Company receives written notice from the
Executive identifying in reasonable detail the acts or omissions constituting
"Good Reason" and the provision of this Agreement relied upon, and such acts or
omissions are not cured by the Company to the reasonable satisfaction of the
Executive within 30 days of the Company's receipt of such notice.
(f) Resignation other than for
Good Reason. The Executive may voluntarily terminate his employment
hereunder for any reason other than Good Reason on the 60th day after the
delivery a written notice to the Company.
5.
Consequence
of Termination; Change of Control. In the event of termination of
Executive’s employment or service with the Company or Change of Control (defined
below) during the Employment Term, the Executive shall be entitled to (i) all
accrued and unpaid Base Salary pursuant to Section 2(a), and (ii) reimbursement
for any unreimbursed expenses properly incurred through the date of
termination.
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For the
purpose of this Agreement, a “Change in Control" shall be
deemed to have occurred if, during the term of this Agreement: (i) the
beneficial ownership of at least 50% of the Company's voting securities or all
or substantially all of the assets of the Company shall have been acquired,
directly or indirectly by a single person or a group of affiliated persons,
other than the Executive or a group in which the Executive is a member, or (ii)
as the result of or in connection with any cash tender offer, exchange offer,
sale of assets, merger, consolidation or other business combination of the
Company with another corporation or entity and the new Board is comprised of
majority directors chosen or elected by the members of the new/combined entity
who were not members of the Company before such cash tender offer, exchange
offer, sale of assets, merger, consolidation or other business combination of
the Company with another corporation or entity.
6.
No
Assignment. This
Agreement is personal to each of the Parties. Except as provided
below, no Party may assign or delegate any rights or obligations hereunder
without first obtaining the written consent of the other Party hereto; provided, however, that the
Company may assign this Agreement to any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company.
7.
Notices. For the purpose of this
Agreement, notices and all other communications provided for in this Agreement
shall be in writing and shall be deemed to have been duly given (1) on the date
of delivery if delivered by hand, (2) on the date of transmission, if delivered
by confirmed facsimile, (3) on the first business day following the date of
deposit if delivered by guaranteed overnight delivery service, or (4) on the
fourth business day following the date delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the
Executive:
Xxxx Xxx
c/o Henan
Shuncheng Group Coal Coke Co., Ltd.
Cai Cun
Road Intersection, Henan Shuncheng
Group
Coal Coke Co., Ltd. (New Building)
Henan
Province, Anyang County, China 455141
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If to the
Company:
Attn.:
Wang Feng
c/o Henan
Shuncheng Group Coal Coke Co., Ltd.
Cai Cun
Road Intersection, Henan Shuncheng
Group
Coal Coke Co., Ltd. (New Building)
Henan
Province, Anyang County, China 455141
With a
copy (which does not constitute a notice) to:
Xxxxxx
& Xxxxxx, LLP
000 Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx, 00000
Attention:
Xxxxxxx X. Xxxxxx, Esq.
Tel.:
000-000-0000
Fax: 000-
000-0000
or to
such other address as either Party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
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8.
Protection of the Company’s
Business.
(a) Confidentiality. The
Executive acknowledges that during the course of his employment by the Company
(prior to and during the Employment Term) he has and will occupy a position of
trust and confidence. The Executive shall hold in a fiduciary capacity for the
benefit of the Company and shall not disclose to others or use, whether directly
or indirectly, any Confidential Information regarding the Company, except (i) as
in good faith deemed necessary by the Executive to perform his duties hereunder,
(ii) to enforce any rights or defend any claims hereunder or under any other
agreement to which the Executive is a party, provided that such disclosure
is relevant to the enforcement of such rights or defense of such claims and is
only disclosed in the formal proceedings related thereto, (iii) when required to
do so by a court of law, by any governmental agency having supervisory authority
over the business of the Company or by any administrative or legislative body
(including a committee thereof) with jurisdiction to order him to divulge,
disclose or make accessible such information, provided that the Executive
shall give prompt written notice to the Company of such requirement, disclose no
more information than is so required, and cooperate with any attempts by the
Company to obtain a protective order or similar treatment, (iv) as to such
Confidential Information that shall have become public or known in the Company's
industry other than by the Executive's unauthorized disclosure, or (v) to the
Executive's spouse, attorney and/or his personal tax and financial advisors as
reasonably necessary or appropriate to advance the Executive's tax, financial
and other personal planning (each an "Exempt Person"), provided, however, any
disclosure or use of Confidential Information by an Exempt Person shall be
deemed to be a breach of this Section 8 by the Executive. The Executive shall
take all reasonable steps to safeguard the Confidential Information and to
protect it against disclosure, misuse, espionage, loss and theft. The
Executive understands and agrees that the Executive shall acquire no rights to
any such Confidential Information. "Confidential Information" shall mean
information about the Company, its subsidiaries and affiliates, and their
respective clients and customers that is not disclosed by the Company and that
was learned by the Executive in the course of his employment by the Company,
including, but not limited to, any proprietary knowledge, trade secrets, data
and databases, formulae, sales, financial, marketing, training and technical
information, client, customer, supplier and vendor lists, competitive
strategies, computer programs and all papers, resumes, and records (including
computer records) of the documents containing such Confidential
Information.
(b) Non-Competition. During
the Employment Term and for the one-year period following the termination of the
Executive's employment for any reason (the "Restricted Period"), the Executive
shall not, directly or indirectly, without the prior written consent of the
Company, provide employment (including self-employment), directorship,
consultative or other services to any business, individual, partner, firm,
corporation, or other entity that competes with any business conducted by the
Company or any of its subsidiaries or affiliates on the date of the Executive's
termination of employment or within one year of the Executive's termination of
employment in the geographic locations where the Company and its subsidiaries or
affiliates engage or propose to engage in such business (the "Business").
Nothing herein shall prevent the Executive from having a passive ownership
interest of not more than 2% of the outstanding securities of any entity engaged
in the Business whose securities are traded on a national securities
exchange.
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(c) Non-Solicitation of
Employees. The Executive recognizes that he possesses and will possess
confidential information about other employees of the Company and its
subsidiaries and affiliates relating to their education, experience, skills,
abilities, compensation and benefits, and inter-personal relationships with
customers of the Company and its subsidiaries and affiliates. The Executive
recognizes that the information he possesses and will possess about these other
employees is not generally known, is of substantial value to the Company and its
subsidiaries and affiliates in developing their business and in securing and
retaining customers, and has been and will be acquired by him because of his
business position with the Company. The Executive agrees that, during the
Restricted Period, he will not, directly or indirectly, (i) solicit or
recruit any employee of the Company or any of its subsidiaries or affiliates (a
"Current Employee") or any person who was an employee of the Company or any of
its subsidiaries or affiliates during the twelve (12) month period immediately
prior to the date the Executive's employment terminates (a "Former Employee")
for the purpose of being employed by him or any other entity, or (ii) hire any
Current Employee or Former Employee.
(d) Non-Solicitation of
Customers. The Executive agrees that, during the Restricted
Period, he will not, directly or indirectly, solicit or attempt to solicit (i)
any party who is a customer or client of the Company or its subsidiaries, who
was a customer or client of the Company or its subsidiaries at any time during
the twelve (12) month period immediately prior to the date the Executive's
employment terminates or who is a prospective customer or client that has been
identified and targeted by the Company or its subsidiaries for the purpose of
marketing, selling or providing to any such party any services or products
offered by or available from the Company or its subsidiaries, or (ii) any
supplier or vendor to the Company or any subsidiary to terminate, reduce or
alter negatively its relationship with the Company or any subsidiary or in any
manner interfere with any agreement or contract between the Company or any
subsidiary and such supplier or vendor.
(e) Property. The
Executive acknowledges that all originals and copies of materials, records and
documents generated by him or coming into his possession during his employment
by the Company or its subsidiaries are the sole property of the Company and its
subsidiaries ("Company Property"). During the Employment Term, and at
all times thereafter, the Executive shall not remove, or cause to be removed,
from the premises of the Company or its subsidiaries, copies of any record,
file, memorandum, document, computer related information or equipment, or any
other item relating to the business of the Company or its subsidiaries, except
in furtherance of his duties under this Agreement. When the Executive's
employment with the Company terminates, or upon request of the Company at any
time, the Executive shall promptly deliver to the Company all copies of Company
Property in his possession or control.
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(f) Non-Disparagement. Executive
shall not, and shall not induce others to, disparage the Company or its
subsidiaries or affiliates or their past and present officers, directors,
employees or products. "Disparage" shall mean making comments or statements to
the press, the Company's or its subsidiaries' or affiliates' employees or any
individual or entity with whom the Company or its subsidiaries or affiliates has
a business relationship which would adversely affect in any manner (1) the
business of the Company or its subsidiaries or affiliates (including any
products or business plans or prospects), or (2) the business reputation of the
Company or its subsidiaries or affiliates, or any of their products, or their
past or present officers, directors or employees.
(g) Cooperation. Subject
to the Executive's other reasonable business commitments, following the
Employment Term, the Executive shall be available to cooperate with the Company
and its outside counsel and provide information with regard to any past,
present, or future legal matters which relate to or arise out of the business
the Executive conducted on behalf of the Company and its subsidiaries and
affiliates, and, upon presentation of appropriate documentation, the Company
shall compensate the Executive for any out-of-pocket expenses reasonably
incurred by the Executive in connection therewith.
(h) Equitable Relief and Other
Remedies. The Executive acknowledges and agrees that the
Company's remedies at law for a breach or threatened breach of any of the
provisions of this Section 8 would be inadequate and, in recognition of this
fact, the Executive agrees that, in the event of such a breach or threatened or
attempted breach, in addition to any remedies at law, the Company, without
posting any bond, shall be entitled to obtain equitable relief in the form of
specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy which may then be available. In
addition, without limiting the Company's remedies for any breach of any
restriction on the Executive set forth in this Section 8, except as required by
law, the Executive shall not be entitled to any payments set forth in Section 5
hereof if the Executive has breached the covenants applicable to the Executive
contained in this Section 8, the Executive will immediately return to the
Company any such payments previously received under Section 5 upon such a
breach, and, in the event of such breach, the Company will have no obligation to
pay any of the amounts that remain payable by the Company under Section
5.
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(i) Reformation. If
it is determined by a court of competent jurisdiction in any state that any
restriction in this Section 8 is excessive in duration or scope or is
unreasonable or unenforceable under the laws of that state, it is the intention
of the parties that such restriction may be modified or amended by the court to
render it enforceable to the maximum extent permitted by the law of that
state. The Executive acknowledges that the restrictive covenants
contained in this Section 8 are a condition of this Agreement and are reasonable
and valid in temporal scope and in all other respects.
(j) Liability. Notwithstanding the
provisions in this Section 8, the Executive shall not be liable for any mistakes
of fact, errors of judgment, for losses sustained by the Company or any
subsidiary or for any acts or omissions of any kind, unless caused by the
negligence or willful or intentional misconduct of the Executive or any person
or entity acting for or on behalf of the Executive.
(k) Survival of
Provisions. The obligations contained in this Section 8 shall survive in
accordance with their terms the termination or expiration of the Executive's
employment with the Company and shall be fully enforceable
thereafter.
9. Indemnification. The Executive shall be
indemnified to the extent permitted by the Company's organizational documents
and to the extent allowed by law. The Company shall continue to carry
Director’s and Officer’s Liability Insurance in accordance with that which has
been approved by the Company’s Board in such amounts and at limits no less than
the current policy limits and amounts now in effect.
10. Section
Headings and Interpretation. The section headings
used in this Agreement are included solely for convenience and shall not affect,
or be used in connection with, the interpretation of this Agreement. Expressions
of inclusion used in this agreement are to be understood as being without
limitation.
11. Severability. The provisions of this
Agreement shall be deemed severable and the invalidity of unenforceability of
any provision shall not affect the validity or enforceability of the other
provisions hereof.
12. Counterparts. This Agreement may be
executed in several counterparts, each of which shall be deemed to be an
original but all of which together will constitute one and the same
Agreement.
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13. Arbitration. Any dispute or
controversy under this Agreement shall be settled exclusively by arbitration in
the City of New York, County of New York in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be
entered on the arbitration award in any court having jurisdiction.
14. Governing
Law. This Agreement will be governed by the laws of the State
of New York without regard to conflicts of laws principles.
15. Entire
Agreement. This
Agreement contains the entire agreement between the Parties with respect to the
subject matter hereof and supersedes all prior agreements, written or oral, with
respect thereto. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which is not expressly set forth in this Agreement.
16. Waiver
and Amendment. No provision of this
Agreement may be modified, amended, waived or discharged unless such waiver,
modification, amendment or discharge is agreed to in writing and signed by the
Executive and such officer or director as may be designated by the Board. No
waiver by either Party at any time of any breach by the other Party hereto of,
or compliance with, any condition or provision of this Agreement to be performed
by such other Party shall be deemed a waiver or similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time.
17. Withholding. The Company may withhold
from any and all amounts payable under this Agreement such federal, state, local
and foreign taxes as may be required to be withheld pursuant to any applicable
law or regulation.
18. Authority
and Non-Contravention. The Executive represents and warrants to the
Company that he has the legal right to enter into this Agreement and to perform
all of the obligations on his part to be performed hereunder in accordance with
its terms and that he is not a party to any agreement or understanding, written
or oral, which could prevent him from entering into this Agreement or performing
all of his obligations hereunder.
19. Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the
Parties have executed this Agreement as of the date first written
above.
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Wang Feng
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By: Wang
Feng
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Title:
Chief Executive Officer
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EXECUTIVE
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Xxxx Xxx
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By: Xxxx
Xxx
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