EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (this “Agreement”),
dated
as of ______________, 200_ between _____________________, residing at
____________________________ (“Executive”),
and
_______________. a British Virgin Islands corporation having its principal
office at _____________________ (the “Company”).
WHEREAS,
the Company believes that Executive provides unique management services for
the
Company and wishes to retain the continued services of Executive as its
_____________________________; and
WHEREAS,
the Company and Executive have reached an understanding with respect to the
extension of Executive’s employment with the Company for a three (3) year period
commencing as of ______________, 200_ and
WHEREAS,
the Company and Executive desire to evidence their agreement in writing and
to
provide for the employment of Executive by the Company on the terms set forth
herein.
NOW,
THEREFORE, IN CONSIDERATION of the foregoing facts, the mutual covenants and
agreements contained herein and other good and valuable consideration, the
parties hereby aJgree as follows:
1. Employment,
Duties and Acceptance.
1.1 Effective
as of ______________, 200_ the Company hereby agrees to the continued employment
of Executive as its ___________________, and Executive hereby accepts such
continued employment on the terms and conditions contained in the Agreement.
During the term of this Agreement, Executive shall make himself available to
the
Company to pursue the business of the Company subject to the supervision and
direction of the Board of Directors of the Company (the “Board”
or
“Board
of Directors”).
1.2 The
Board
may assign Executive such general management and supervisory responsibilities
and executive duties for the Company as are appropriate and commensurate with
Executive’s position as __________________ of the Company (“____”)
and
would otherwise be consistent in stature and prestige with the responsibilities
of a ______.
Executive
accepts such employment and agrees to devote substantially all of his business
time, energies and attention to the performance of his duties; provided,
however, that Executive may continue to be actively involved in educational
and
civic activities to the extent that such activities do not materially detract
from the reasonable performance of his duties (such material detraction to
be
evidenced by a resolution approved by the majority of the Board and a written
notice to Executive, in which event Executive shall have one hundred and twenty
(120) days to reduce the level of such activities in a reasonable manner).
The
Company recognizes the value to it of Executive’s continued involvement in these
activities and will reimburse Executive for reasonable expenses incurred by
him
in connection with such activities. Any such expense in excess of $1000 shall
be
pre-approved. Nothing herein shall be construed as preventing Executive from
(i)
making and supervising investments on a personal or family basis (including
trusts, funds and investment entities in which Executive or members of his
family have an interest) and (ii) serving on the Board of Directors of not
more
than three corporations involved primarily in “for profit” business activities;
provided, however, that these activities do not materially interfere with the
performance of his duties hereunder or violate the provisions of
Section 4.4
hereof
and are promptly disclosed to the Board of Directors of the
Company.
2. Compensation
and Benefits.
2.1 The
Company shall pay to Executive a salary at an annual base rate of not less
than
$_______ for the first ___-year period during the term hereof . During
Executive’s employment, salary will be paid every one calendar month or
according to Company policy in effect from time to time.. Executive’s annual
base rate will be reviewed one month prior to the commencement of the third
year
for purposes of determining what the new base salary will be.
2.2 The
Company shall also pay to Executive such bonuses as may be determined from
time
to time by the Compensation Committee of the Board of Directors. The amount
of
annual bonus payable to Executive may vary at the discretion of the Compensation
Committee of the Board of Directors; provided, however, that the total bonus
shall not exceed 50% of Executive’s annual base rate under
Section 2.1
as of
the date the bonus is awarded. In determining the annual bonus to be paid to
Executive, the Compensation Committee may, among other factors they believe
to
be appropriate, consider, and give varying degrees of importance to, Executive’s
contribution to the following:
(a) growth
in
the Company’s per share value;
(b) achievement
by the Company of specific identified targets selected by the Committee from
time to time;
(c) the
attraction and retention of key executive personnel by the Company;
(d) satisfaction
of the Company’s capital requirements;
(e) the
establishment of strategic direction and significant Company goals;
and
(f) such
other criteria as the Compensation Committee deems to be relevant.
2.3 Executive
shall be entitled to such insurance and other benefits which are applicable
in
Executive’s work location, including, among others, medical and disability
coverage and life insurance as are afforded to other senior executives of the
Company, subject to applicable waiting periods and other conditions which may
be
generally applicable.
2.4 Executive
shall be entitled to ____ weeks of vacation in each calendar year and to a
reasonable number of other days off for religious and personal
reasons.
2.5 Executive
shall be entitled, at his option, to maintain a suitable automobile for business
use. The Company shall reimburse Executive for the costs of leasing such
automobile and for all other costs associated with the use of the vehicle,
including insurance costs, repairs and maintenance.
2.6 The
Company will pay or reimburse executive according to the Company policy for
all
transportation, hotel and other expenses incurred by Executive on business
trips
and for all other ordinary and reasonable out-of-pocket expenses actually
incurred by him in the conduct of the business of the Company against itemized
vouchers submitted with respect to any such expenses.
3. Term
and Termination.
3.1 The
term
of this Agreement commences as of ______________, 200_ and shall continue until
______________, 200_ unless sooner terminated as herein provided.
3.2 If
Executive dies during the term of this Agreement, this Agreement shall thereupon
terminate, except that the Company shall pay to the legal representative of
Executive’s estate the base salary due Executive pursuant to Section 2.1 hereof
through the first anniversary of Executive’s death (or the scheduled expiration
under Section 3.1, if earlier than the first anniversary date) as well as a
pro
rata allocation of bonus payments under Section 2.2 based on the days of service
during the year of death, and all amounts owing to Executive at the time of
termination, including for previously accrued but unpaid bonuses, expense
reimbursements and accrued but unused vacation pay.
3.3 If
Executive shall be rendered incapable by an incapacitating illness or disability
(either physical or mental) of complying with the terms, provisions and
conditions hereof on his part to be performed for a period in excess of 180
consecutive days during any consecutive twelve (12) month period, then the
Company, at its option, may terminate this Agreement by written notice to
Executive (the “Disability
Notice”)
delivered prior to the date Executive resumes the rendering of services
hereunder; provided, however, if requested by Executive (or a representative
thereof) such termination shall not occur until after examination of Executive
by a medical doctor (retained by the Company with the consent of Executive
which
consent shall not be unreasonably withheld) who certifies in a written report
to
the Board with a copy of such report delivered simultaneously to Executive
that
Executive is and shall be incapable of performing his duties for in excess
of
two (2) additional months because of the continuing existence of such
incapacitating illness or disability. Notwithstanding such termination, the
Company (a) shall make a payment to Executive of a pro rata allocation of
payments under Section 2.2 based on the days of service during the year in
which
the Disability Notice is delivered and (b) shall pay to Executive the base
salary due Executive pursuant to Section 2.1 hereof through the second
anniversary of the date of such notice (the “Disability
Period”),
less
any amount Executive receives for such period from any Company-sponsored or
Company-paid for source of insurance, disability compensation or governmental
program. The Company shall also pay to Executive all amounts owing to Executive
at the time of termination, including for previously accrued but unpaid bonuses,
expense reimbursements and accrued but unused vacation pay.
3.4 The
Company, by notice to Executive, may terminate this Agreement for Cause. As
used
herein, “Cause”
means
(a) the refusal in bad faith by Executive to carry out specific written
directions of the Board, (b) intentional fraud or dishonest action by Executive
in his relations with the Company (“dishonest” for these purposes shall mean
Executive’s knowingly making of a material misstatement to the Board for the
purpose of obtaining direct personal benefit); or (c) the conviction of
Executive of any crime involving an act of significant moral turpitude after
appeal or the period for appeal has elapsed without an appeal being filed by
Executive. Notwithstanding the foregoing, no Cause for termination shall be
deemed to exist with respect to Executive’s acts described in clause (a) or (b)
above, unless the Board shall have given written notice to Executive (after
five
(5) days advance written notice to Executive and a reasonable opportunity to
Executive to present his views with respect to the existence of Cause),
specifying the Cause with particularity and , within twenty (20) business days
after such notice, Executive shall not have disputed the Board’s determination
or in reasonably good faith taken action to cure or eliminate prospectively
the
problem or thing giving rise to such Cause, provided, however, that a repeated
breach after notice and cure, of any provision of clause (a) or (b) above,
involving the same or substantially similar actions or conduct, shall be grounds
for termination for cause upon not less than five (5) days additional notice
from the Company. Subject to Section 3.6 hereof, the Company may at any time,
terminate the employment of Executive for any reason or no
reason.
3.5 Executive,
by notice to the Company, may terminate this Agreement if a Good Reason exists.
For purposes of this Agreement, “Good
Reason”
means
the occurrence of any of the following circumstances without Executive’s prior
express written consent: (a) a material adverse change in the nature of
Executive’s title, duties or responsibilities with the Company that represents a
demotion from his title, duties or responsibilities as in effect immediately
prior to such change; (b) a material breach of this Agreement by the Company;
(c) a failure by the Company to make any payment to Executive when due, unless
the payment is being contested by the Company, in good faith; (d) a liquidation,
bankruptcy or receivership of the Company; or (e) if Executive is at any time
not a member of the Board of Directors of the Company and a member of the
Executive Committee thereof (if such a committee exists), unless he voluntarily
resigns therefrom; or (f) any person or entity other than the Company and/or
any
officers or directors of the Company as of the date of this Agreement acquires
securities of the Company other than from Executive or his affiliates (in one
or
more transactions) having 51% or more of the total voting power of all the
Company’s securities then outstanding.
Notwithstanding
the foregoing, no Good Reason shall be deemed to exist with respect to the
Company’s acts described in clauses (a), (b) or (c) above, unless Executive
shall have given written notice to the Company specifying the Good Reason with
reasonable particularity and, within twenty (20) business days after such
notice, the Company shall not have cured or eliminated the problem or thing
giving rise to such Good Reason; provided, however, that a repeated breach
after
notice and cure of any provision of clauses (a), (b) or (c) above involving
the
same or substantially similar actions or conduct, shall be grounds for
termination for Good Reason without any additional notice from
Executive.
3.6 In
the
event that Executive terminates this Agreement for Good Reason, pursuant to
the
provisions of paragraph 3.5, or the Company terminates this Agreement without
Cause, as defined in paragraph 3.4, the Company shall continue to pay to
Executive (or in the case of his death, the legal representative of Executive’s
estate or such other person or persons as Executive shall have designated by
written notice to the Company), all payments, compensation and benefits required
under paragraph 2 hereof through the earlier of (y) two (2) years from the
date
of termination or (z) through the term of this Agreement; provided, however,
that Executive’s insurance coverage shall terminate upon Executive becoming
covered under a similar program by reason of employment elsewhere. If
Executive’s employment is terminated for Good Reason or without Cause, Executive
shall have no duty to mitigate awards paid or payable to him pursuant to this
subsection, and any compensation paid or payable to Executive from sources
other
than the Company will not offset or terminate the Company’s obligation to pay to
Executive the full amounts pursuant to this subsection 3.6.
4. Protection
of Confidential Information; Non-Competition.
4.1 Executive
acknowledges that:
(a) As
a
result of his current employment with the Company, Executive will obtain secret
and confidential information concerning the business of the Company and its
subsidiaries and affiliates (referred to collectively in this Article 4 as
the
“Company”),
including, without limitation, financial information, designs and other
proprietary rights, trade secrets and know-how, customers and sources
(“Confidential
Information”).
(b) The
Company will suffer substantial damage which will be difficult to compute if,
during the period of his employment with the Company or thereafter, Executive
should enter a business competitive with the Company or divulge Confidential
Information.
(c) The
provisions of this Agreement are reasonable and necessary for the protection
of
the business of the Company.
4.2 Executive
agrees that he will not at any time, either during the term of this Agreement
or
thereafter, in oral or written form, divulge to any person or entity any
Confidential Information obtained or learned by him as a result of his
employment with the Company, except (i) in the course of performing his
duties hereunder to someone who is has also signed a non-disclosure or similar
agreement , (ii) to the extent that any such information is in the public
domain other than as a result of Executive’s breach of any of his obligations
hereunder, (iii) where required to be disclosed by court order, subpoena or
other government process. If Executive shall be required to make disclosure
pursuant to the provisions of clause (iii) of the preceding sentence, Executive
promptly, but in no event more than 72 hours after learning of such subpoena,
court order, or other government process, shall notify, by personal delivery
or
by electronic means, confirmed by mail, the Company and, at the Company’s
expense, Executive shall: (a) take reasonably necessary and lawful steps
required by the Company to defend against the enforcement of such subpoena,
court order or other government process, and (b) permit the Company to intervene
and participate with counsel of its choice in any proceeding relating to the
enforcement thereof.
4.3 Upon
termination of his employment with the Company, Executive will promptly deliver
to the Company all memoranda, notes, records, reports, manuals, drawings,
blue-prints and other documents (and all copies thereof) relating to the
business of the Company and all property associated therewith, which he may
then
possess or have under his control.
4.4 During
the period commencing ______________, 200_ and terminating three (3) years
after
termination of employment, Executive, without the prior written permission
of
the Company, shall not, anywhere in the People’s Republic of China, (i) enter
into the employ of or render any services to any person, firm or corporation
engaged
in any business which
is
directly or indirectly in competition with the Company’s business at the time of
termination (“Competitive
Business”);
(ii)
engage in any Competitive Business as an individual, partner, shareholder,
creditor, director, officer, principal, agent, employee, trustee consultant,
advisor or in any other relationship or capacity; (iii) solicit for employment
or employ, or have or cause any other person or entity to solicit for employment
or employ, any person who was employed by the Company within three (3) months
prior to the time of termination of Executive’s employment by the Company (other
than Executive’s personal secretary and assistant); or (iv) solicit, interfere
with, or endeavor to entice away from the Company, for the benefit of a
Competitive Business, any of its customers. Notwithstanding the foregoing,
Executive shall not be precluded from investing and managing the investment
of,
his or his family’s assets in the securities of any corporation or other
business entity which is engaged in a Competitive Business if such securities
are traded on a national stock exchange or in the over-the-counter market and
if
such investment does not result in his beneficially owning, at any time, more
than 5% of any class of the publicly-traded equity securities of such
Competitive Business; provided, however, that for a period commencing
______________, 200_ and terminating three years after termination of
Executive’s employment (except for investments in a class of securities trading
on public markets), Executive shall refer to the Company for consideration
(before any other party) any and all opportunities to acquire or purchase,
or
otherwise make equity or debt investments in, companies primarily involved
in a
Competitive Business if such opportunities becomes known to Executive while
he
is the _______________ of the Company. If the Company determines not to exploit
any opportunity referred to in the foregoing sentence, the Company shall
determine what, if anything, should be done with such opportunity. Executive
shall not be entitled to any compensation, as a finder or otherwise, if either
the Company or Executive introduces such opportunity to other persons, it being
understood that all such compensation shall be paid to the Company.
Notwithstanding the foregoing, in the event the Company terminates this
Agreement without cause or if Executive terminates this Agreement for Good
Reason under Section 3.5 hereof, Executive’s obligations under this Section 4.4
shall terminate one month following termination.
4.5 If
Executive commits a breach of any of the provisions of Sections 4.2 or 4.4,
the
Company shall have the right:
(a) to
have
the provisions of this Agreement specifically enforced by any court having
equity jurisdiction, it being acknowledged and agreed by Executive that the
services being rendered hereunder to the Company are of a special, unique and
extraordinary character and that any breach or threatened breach will cause
irreparable injury to the Company and that money damages will not provide an
adequate remedy to the Company; and
(b) to
require Executive to account for and pay over to the Company all monetary
damages determined by a non-appealable decision by a court of law to have been
suffered by the Company as the result of any actions constituting a breach
of
any of the provisions of Section 4.2 or 4.4, and Executive hereby agrees to
account for and pay over such damages to the Company (up to the maximum of
all
payments made under the Agreement).
4.6 If
Executive shall violate any covenant contained in Section 4.4, the duration
of
such covenant so violated shall be automatically extended for a period of time
equal to the period of such violation.
4.7 If
any
provision of Sections 4.2 or 4.4 is held to be unenforceable because of the
scope, duration or area of its applicability, the tribunal making such
determination shall not have the power to modify such scope, duration, or area,
or all of them and such provision or provisions shall be void ab
initio.
5. Miscellaneous
Provisions.
5.1 All
notices provided for in this Agreement shall be in writing, and shall be deemed
to have been duly given when delivered personally to the party to receive the
same, when transmitted by electronic means, or when mailed first class postage
prepared, by certified mail, return receipt requested, addressed to the party
to
receive the same at his or its address set forth below, or such other address
as
the party to receive the same shall have specified by written notice given
in
the manner provided for in this Section 5.1. All notices shall be deemed to
have
been given as of the date of personal delivery, transmittal or mailing
thereof.
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If
to the Company:
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5.2 In
the
event of any claims, litigation or other proceedings arising under this
Agreement (including, among others, arbitration under Section 3.4), Executive
shall be reimbursed by the Company within thirty (30) days after delivery to
the
Company of statements for the costs incurred by Executive in connection with
the
analysis, defense and prosecution thereof, including reasonable attorneys’ fees
and expenses; provided, however, that Executive shall reimburse the Company
for
all such costs if it is determined by a non-appealable final decision of a
court
of law that Executive shall have acted in bad faith with the intent to cause
material damage to the Company in connection with any such claim, litigation
or
proceeding.
5.3 The
Company, shall to the fullest extent permitted by law, indemnify Executive
for
any liability, damages, losses, costs and expenses arising out of alleged or
actual claims (collectively, “Claims”)
made
against Executive for any actions or omissions as an officer and/or director
of
the Company or its subsidiary. To the extent that the Company obtains director
and officers insurance coverage for any period in which Executive was an
officer, director or consultant to the Company, Executive shall be a named
insured and shall be entitled to coverage thereunder.
5.4 The
provision of Article 4, Sections 5.2 and 5.3 and any provisions relating to
payments owed to Executive after termination of employment shall survive
termination of this Agreement for any reason.
5.5 This
Agreement and the Stock Option Agreements executed simultaneously herewith
set
forth the entire agreement of the parties relating to the employment of
Executive and are intended to supersede all prior negotiations, understandings
and agreements. No provisions of this Agreement or the Stock Option Agreements
may be waived or changed except by a writing by the party against whom such
waiver or change is sought to be enforced. The failure of any party to require
performance of any provision hereof or thereof shall in no manner affect the
right at a later time to enforce such provision.
5.6 This
Agreement shall inure to the benefit of and be binding upon the successors
and
assigns of the Company. This Agreement shall not be assignable by Executive,
but
shall inure to the benefit of and be binding upon Executive’s heirs and legal
representatives.
a)
In the
event of any controversy or claim arising out or relating to this Agreement,
including those concerning its validity, interpretation, execution and
rescission (the “Dispute”),
the
Parties shall first attempt to settle it amicably by negotiation between the
Parties. If the negotiation is not successful, all disputes shall be submitted
to arbitration as set forth below.
b)
) The
language to be used in the arbitration proceedings shall be English. The Dispute
shall be finally and exclusively settled by a single Arbitrator appointed under
the auspices of the Hong Kong International Arbitration Center (“HKIAC”) in
accordance with its arbitration rules. All proceedings before the arbitrator
shall be held in Hong Kong.
5.7 Should
any provision of this Agreement become legally unenforceable, no other provision
of this Agreement shall be affected, and this Agreement shall continue as if
the
Agreement had been executed absent the unenforceable provision.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
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“COMPANY”
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“EXECUTIVE”
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[COMPANY
NAME]
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[EXECUTIVE
NAME]
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By:
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By:
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Title
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