EMPLOYMENT AGREEMENT
Exhibit
10.33
The
Agreement is made effective as of the July 31, 2010 (the
“Effective Date”), by
and between SGOCO Technology, Ltd., a Cayman Islands registered corporation,
(the “Company”), and
Xxxxxxx X. Xxxxxxxx
(US Passport#00000000) an individual (the “Employee”).
WHEREAS, the Company has made
an offer of employment to the Employee, and the Employee has accepted such offer
of employment on the terms and conditions set forth herein; and
WHEREAS, Employee shall
commence his employment with the Company on or about July 31, 2010, or at
another mutually agreeable date; and
WHEREAS, the parties hereto
each recognize that, in the course of the Employee’s employment, the Employee
has had and will have access to certain information that is confidential and
proprietary to the Company, the disclosure of which would cause severe detriment
to the Company and/or its affiliates; and
WHEREAS, the parties desire to
fix their respective rights and responsibilities as set forth in the
Agreement.
NOW, THEEFORE, in
consideration of the premises and the mutual covenants, terms and conditions
hereinafter set forth, and for other good and valuable consideration receipt of
which is specifically acknowledged, the parties hereto hereby agree as
follows:
Section
1. EMPLOYMENT
The Company hereby employs the
Employee, and the Employee hereby accepts employment, as Vice President of
Finance of the Company.
Section
2. THE EMPLOYEE’S
DUTIES
a. The
Employee hereby agrees to perform his duties faithfully and honestly on behalf
of the Company and its affiliates and subsidiaries, and use his reasonable good
faith efforts and ability on behalf of the Company to perform the duties of the
Employee’s position and perform such duties and services as shall be specified
and designated from time to time by the Chief Executive Officer. In
performance of his duties, Employee shall report to the Chief Executive
Officer.
b. The
Employee’s duties shall include, without limitation, those customarily
associated with the position of Vice President of
Finance of a U.S. publicly listed company.
c. The
Employee agrees that he shall, during the term of their Agreement, faithfully
serve the Company as a full-time employee and devote his business time,
attention and ability to his duties and responsibilities hereunder; provided,
however, that nothing contained herein shall be construed to prohibit or
restrict the Employee from serving in various capacities in community, civic,
religious or charitable organizations or trade associations or leagues; or
attending to passive personal business or investment matters; provided that no
such service or activity permitted in the Section 2(c) shall individually or in
the aggregate, either materially interfere with the performance by the Employee
of his duties hereunder or give rise to any conflict of interest or the
appearance of a conflict of interest with either the Company or any of its
subsidiaries or affiliates.
d. The
Employee agrees to observe and comply with all applicable domestic (federal,
state, and local) and international laws. The Employee also agrees to
comply with all lawful rules, regulations, policies and practices adopted by the
Company and made generally applicable to all of the Company’s employees (or
applicable to similarly situated employees), either orally or in writing, both
as they now exist and as they may be duly adopted or modified from time to time,
provided that in the event of a conflict between the Agreement or its
attachments and such rules, regulations, policies, or practices, the Agreement
shall govern and supersede the same.
Section
3. COMPENSATION AND
BENEFITS
In consideration for all services
rendered by the Employee to the Company and as consideration for the restrictive
covenants referred to in Section 7 hereof, Company hereby agrees to pay
compensation to the Employee as follows:
a. During
the term of the Agreement, commencing on the Effective Date, the Company shall
pay to the Employee, in accordance with the normal payroll practices of the
Company, a base salary (“Base
Salary”) of Sixty Thousand
Chinese Yuan (RMB60,000) per
month. The Company shall make deductions and withholding from the
amount payable to Employee as may be required by applicable international,
federal, state or local laws.
b. In
addition to the foregoing, on July 31, 2010,
Employee will be granted 3,700 restricted
stocks shares (the “Shares”). The
Shares shall vest on January 1st,
2011.
c. Employee
is also eligible to participate in the Company’s bonus program pursuant to which
bonuses are granted at the discretion of the Company’s Board of Directors and
are based on applicable labor laws in China. Bonuses are not earned until the
date they are paid and Employee must be an employee of the Company on the day
bonuses are issued to receive any bonus.
2
d. Annual
leave entitlement is 15 days per year. Annual leave is accrued throughout the
calendar year from January to December on a pro-rata basis. New employees will
be eligible for the first year annual leave entitlement pro-rated over the
calendar year from the date of joining. Employee is entitled to other
PRC national public holidays and leave.
Section
4. EXPENSES
a. The
Company shall reimburse the Employee for reasonable and necessary expenses
incurred (i) in the ordinary course of conducting Company’s business and (ii) in
accordance with policies established, from time to time, by the
Company.
b. The
Employee shall submit expense reports accompanied by receipts or the appropriate
substantiation for all items of business expenses for which reimbursement is
sought. Expenses for which Employee is entitled to reimbursement as
provided herein shall be reimbursed within two (2) weeks of the Employee’s
submission but in no event shall the Employee be reimbursed later than the end
of the year following the year in which any such expense is
incurred. The amount of Executive’s expenses eligible for
reimbursement during any taxable year will not affect the expenses eligible for
reimbursement in any of the taxable year.
Section
5. DURATION AND
TERMINATION
a. Unless
terminated earlier as set forth below in Section 5(a), the Employee’s initial
term of employment under the Agreement shall commence on the Effective Date and
shall continue for three years (the “Initial
Term”). During the Initial Term of Employment, Employee’s
employment may only be terminated for the following reasons:
(1) Upon
the death of the Employee, effective the date of Employee’s death;
3
(2) Ten
(10) days after the date on which the Company shall have given the Employee
written notice of the termination of his employment by reason of his physical or
mental incapacity or disability on a permanent basis. For purposes of
the Agreement, the Employee shall be deemed to be physically or mentally
incapacitated or disabled on a permanent basis if he is unable to materially
and/or substantially perform his duties, with or without reasonable
accommodations, hereunder for a period exceeding two (2) consecutive months or
for a period of four (4) months in any twelve (12) consecutive month
period;
(3) Immediately
upon the date the Company gives the Employee written notice of the termination
of his employment for “Cause”. For
purposes of the Agreement, “Cause” shall mean (i) the conviction of the Employee
of a crime involving a sentence of incarceration or of a felony with or without
a sentence of incarceration; (ii) the commission of an act by the Employee
constituting fraud, embezzlement or other material financial dishonesty against
the Company, or of an act of moral turpitude which in the opinion of counsel to
the Company would constitute a crime under the laws of the United States or
China (or any of their state or local laws) and which, in case of any of the
foregoing, in the good faith judgment of the Company, is likely to cause harm to
the business of the Company, taken as a whole; (iii) the repeated refusal or
failure by the Employee to use his reasonable and diligent efforts to follow the
lawful and reasonable directives (in light of the terms of the Agreement) of the
Chief Executive Officer or Board of Directors with respect to a matter or
matters within the control of the Employee; (iv) Employee’s willful or gross
neglect in carrying out his material duties and responsibilities under the
Agreement; (v) material breach by the Employee of any provision of the Agreement
or the Confidentiality and Inventions Agreement, including any of the
Restrictive Covenants as provided in Section 7 hereof;
(4) Thirty
(30) days after the date on which the Employee shall have given the Company
written notice of the termination of his employment without Cause;
(5) Thirty
(30) days after the date on which the Company provides written notice to the
Employee that he is being terminated without Cause (subject to the payments due
in Section 6).
b. After
the Initial Term of Employment, Employee’s employment under the Agreement shall
continue pursuant to the Agreement but shall be “at will,” meaning that either
the Company or Employee may terminate Employee’s employment with or without
cause or advance notice. The at-will relationship may only be changed
by an agreement in writing signed by the CEO of the Company.
Section
6. PAYMENTS AND OTHER RIGHTS
UPON TERMINATION
a. During
the Initial Term, if the Employee terminates his employment for any reason or if
the Company terminates Employee’s employment due to death, permanent disability,
or with Cause, as defined above in Section 5, Employee shall be entitled only to
the Base Salary through the date of the Employee’s termination of his employment
and any of the benefits legally required to be paid to the
Employee. The Company shall retain all the rights and remedies
provided at law or in equity as a result of such termination of
employment.
4
b. During
the first year Initial Term, if the Company terminates Employee without Cause,
the Employee shall be entitled one month of Base Salary only, payable within
sixty (60) days from the date the Employee is terminated. If the
Employee is terminated without Cause after the one-year anniversary of the
Agreement but before the second-year anniversary, Employee shall be entitled to
two months of Base Salary only, payable within sixty (60) days from the date the
Employee is terminated. If the Employee is terminated without Cause
after the second-year anniversary of the Agreement but before the third-year
anniversary, Employee shall be entitled to three months of Base Salary only,
payable within sixty (60) days from the date the Employee is
terminated.
c. After
the Initial Term, if the Company or Employee terminates the Employee’s
employment for any reason, the Employee shall be entitled only to the Base
Salary through the date of the Employee’s termination and any of the benefits
legally required to be paid to the Employee. The Company shall retain
all the rights and remedies provided at law or in equity as a result of such
termination of employment.
d. Under
no circumstances will Employee be entitled to any severance pay, except as set
forth in Section 6(b) above.
Section
7. GOVERNING LAW, DISPUTE
RESOLUTION
THE PROVISIONS OF THE AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
Hong Kong, Special Administrative Region (HKSAR), WITHOUT REGARD TO THE
CONFLICTS OF LAWS PRINCIPLES THEEOF. Any controversy or dispute between any of
the parties to the Agreement arising out of any of the terms, provisions, or
conditions of the Agreement, or the interpretation or enforceability thereof,
shall be submitted to arbitration in HKSAR, or another location agreed to by the
parties. The arbitration shall be heard before a single arbitrator
agreed to by the parties. The arbitration shall be binding with no
right of appeal. In the event that either party initiates arbitration
pursuant to the section, the Company shall pay all of the fees and
costs of the arbitration. Each party shall be responsible for their
own attorney’s fees and other costs. The prevailing party shall have
the right, at the discretion of the arbitrator, to recover its share of any
arbitration fees and costs, or attorney’s fees and costs. The
arbitration shall be conducted pursuant to the rules of the American Arbitration
Association governing Employment Disputes. The parties shall agree to the
appointment of the arbitrator within ten (10) business days after the request
for arbitration is received. The parties shall be entitled to
reasonable discovery; provided, that the arbitrator may limit discovery in
connection with a dispute as appropriate to achieve the prompt and efficient
disposition of the dispute while giving full regard to the legitimate needs of
the parties for discovery; provided, however, that in no event shall such
discovery process exceed a period of 60 days, unless the arbitrator extends such
period for good cause. The decision of the arbitrator may be entered
for judgment in any appropriate court with jurisdiction.
5
Section
8. ENTIRE
AGREEMENT
The Agreement supersedes and cancels
any and all prior agreements between the parties hereto, express or implied,
relating to the subject matter hereof. The Agreement sets forth the
entire agreement between the parties hereto. It may not be changed,
altered, modified or amended except in a writing signed by both
parties.
Section
9. NON-WAIVER
The failure or refusal of either party
to insist upon the strict performance of any provision of the Agreement or to
exercise any right in any one or more instances or circumstances shall not be
construed as a waiver or relinquishment of such provision or right.
Section
10. ASSIGNMENT/NON-ASSIGNMENT
The Company may assign the Agreement
and any rights hereunder to any parent, subsidiary, affiliate, or successor
whereupon such parent, subsidiary, affiliate, or successor shall have all the
rights, duties and obligations of the Company hereunder.
Any other transfer or assignment of the
Agreement and/or rights hereunder shall be subject to Employee’s prior written
consent, which consent shall not be unreasonably withheld, conditioned or
delayed. The Employee shall have no right to assign any of the
rights, nor to delegate any of the duties, created by the Agreement, and any
assignment or attempted assignment of the Employee’s rights, and any delegation
or attempted delegation of the Employee’s duties, shall be null and
void. In all other respects, the Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
beneficiaries, personal representatives, successors, officers and
directors.
Section
11. SEVERABILITY
If any paragraph, term or provision of
the Agreement shall be held or determined to be unenforceable, the balance of
the Agreement shall nevertheless continue in full force and effect unaffected by
such holding or determination to the fullest extent permitted by law as though
such paragraph, term or provision had been written in such a manner and to such
an extent as to be enforceable under the circumstances.
6
Section
12. NOTICE
All
notices hereunder shall be in writing. Notices may be delivered
personally, or by certified mail return receipt requested, postage prepaid, to
the addresses set forth below:
SGOCO
Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx
Xxxxxx,
Xxxxx, 000000
Xx.
Xxxxxxx X. Xxxxxxxx
0X, Xxxxx
0, Xxxxxxxx Xxxxx
11 Xx
Xxxx Road
Sai Kung,
N.T.
Hong
Kong, S.A.R.
Either
party may designate a new address for purposes of the Agreement by notice to the
other party in accordance with the paragraph.
IN WITNESS WHEREOF, the
parties knowingly and voluntarily have set their signatures.
DATED:
______________________,
2010 SGOCO
Technology, Ltd.
|
By:
|
|||
|
Its:
Chief Executive Officer and President
|
|||
|
DATED:
______________________, 2010
|
|||
|
Name: Xxxxxxx
X. Xxxxxxxx
|
|||
7
