EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (this “Agreement”), is dated as of April 19, 2006 by and
between Song Hong, residing in Shenzhen, China (“Executive”), and Diguang
International Development Co., Ltd. (the "Company"), a Nevada corporation
and
shall be effective as of the closing of the Share Exchange, as described
in the
recitals below.
WHEREAS,
pursuant to the Amended
and Restated Share
Exchange Agreement (the "SEA”) proposed to be entered into among Online
Processing, Inc., a Nevada corporation, to be renamed Diguang International
Development Co., Ltd., Diguang International Holdings Limited, a British Virgin
Islands corporation ("Diguang"), the owners of record of all of the issued
and
outstanding stock of Diguang (the “Shareholders”) and Xxxxx Xxxxxxxx, the
Shareholders will transfer to the Company 100% of the common stock of Diguang
in
exchange for 18,250,000 common shares of the Company (the “Share Exchange”);
and
WHEREAS,
as a result of the Share Exchange, Diguang will become a wholly owned subsidiary
of the Company; and
WHEREAS,
the Company believes that Executive provides unique management services for
the
Company and its subsidiaries and wishes to retain the services of Executive
following the Share Exchange in the capacity of Chief Operating Officer of
the
Company and its subsidiaries; and
WHEREAS,
the Company and Executive have reached an understanding with respect to
Executive’s employment with the Company for a three year period commencing as of
the Closing (as defined in the SEA); 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 agree as follows:
1. Duties
and Scope of Employment.
1.1 The
Company hereby agrees to the employment of Executive in the capacity of Chief
Operating Officer of the Company and its subsidiaries and Executive hereby
accepts such employment on the terms and conditions contained in the Agreement,
for an initial period (the “Initial Term”) beginning upon the Closing and
continuing for a period of three years
thereafter unless earlier terminated in accordance with Section 3 of this
Agreement. Following the Initial Term, the employment relationship commenced
pursuant to this Agreement may, by express or implied agreement, continue,
in
which case such employment relationship shall continue for an unspecified term,
terminable by either party for any reason at any time.
1.2 Executive
shall be employed on a full time basis, shall devote his full business efforts
and time to the Company and its subsidiaries, and shall have such reasonable,
usual and customary duties of such office and title as may be delegated to
Executive from time to time by the Company’s Board of Directors.
1.3 Executive
agrees to the best of his ability and experience that he will at all times
faithfully perform all of the duties and obligations required of and from
Executive, consistent and commensurate with Executive’s position, pursuant to
the terms hereof. During the term of Executive’s employment relationship with
Company, Executive will not, except as otherwise that maybe provided in a
Purchase Option Agreement regarding North Diamond International Co., Ltd.,
a
British Virgins Islands corporation, proposed to be entered into between and
among Sino Olympics Industrial Limited, Shenzhen Diguang Electronics Co., Ltd.,
the Company, the Executive, and Song Yi, directly or indirectly engage or
participate in any business that is competitive in any manner with the business
of Company or its subsidiaries. Nothing in this Agreement will prevent Executive
from (i) making personal investments in, and sitting on the board of directors
or board of advisors of, businesses that are not competitive with the business
of Company or its subsidiaries, (ii) accepting speaking or presentation
engagements in exchange for honoraria or from serving on boards of charitable
organizations, or (iii) from owning no more than 1% of the outstanding equity
securities of a corporation whose stock is listed on a national stock exchange
or the Nasdaq National Market, provided that such activities listed in (i)
through (iii) do not materially interfere with Executive’s obligations to the
Company and its subsidiaries as described above. Executive will comply with
and
be bound by Company’s operating policies, procedures and practices as provided
in writing to Executive from time to time and in effect during the term of
Executive’s employment.
1.4 Executive
represents and warrants to the Company that he is under no obligations or
commitments, whether contractual or otherwise, that are inconsistent with his
obligations under this Agreement. Executive represents and warrants that he
will
not use or disclose, in connection with his employment by the Company, any
trade
secrets or other proprietary information or intellectual property in which
Executive or any other person has any right, title or interest and that his
employment by the Company as contemplated by this Agreement will not infringe
or
violate the rights of any other person or entity. Executive represents and
warrants to the Company that he has returned all property and confidential
information belonging to any prior employers.
1.5 Executive
acknowledges that the nature of his responsibilities may require domestic and
international travel away from time to time.
2. Compensation
and Benefits.
2.1 Executive
shall receive a monthly base salary of the RMB equivalent of US$16,666.67,
which
is equivalent to the RMB equivalent of US$200,000 on an annualized basis.
Executive’s monthly base salary will be payable pursuant to the Company’s normal
payroll practices, will be reviewed on an annual basis by the Compensation
Committee of the Company’s Board of Directors (the “Compensation Committee”) and
may be increased during the Initial Term on each anniversary of the effective
date of this Agreement, at the discretion of the Compensation Committee.
Notwithstanding the foregoing, Executive's monthly salary may be allocated
among
and payable by
the
Company or its subsidiaries in such amounts as are determined by the Company's
Board of Directors.
-2-
2.2 The
Company shall pay to Executive such bonuses as may be determined from time
to
time by the Compensation Committee. The amount of annual bonus payable to
Executive may vary at the discretion of the Compensation Committee. In
determining the annual bonus to be paid to Executive, the Compensation Committee
may, consider all factors they deem to be relevant and
appropriate.
2.3 Intentionally
blank.
2.4 During
his employment, Executive shall be entitled to such insurance and other benefits
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 and to applicable law.
2.5 During
his employment, Executive will be eligible for four weeks vacation each year,
which vacation shall accrue ratably over each calendar year and pro-rata during
any partial year of employment, subject to a maximum accrual at any time of
eight weeks vacation.
2.6 During
his employment, the Executive shall be eligible to participate in any employee
benefit plans maintained by the Company for other executive officers, subject
in
each case to the generally applicable terms and conditions of the plan in
question, the determinations of any person or committee administering such
plan,
and any applicable law.
2.7 During
his employment, the Executive shall be authorized to incur necessary and
reasonable travel, entertainment and other business expenses in connection
with
his duties hereunder. The Company shall reimburse the Executive for such
expenses upon presentation of an itemized account and appropriate supporting
documentation, all in accordance with the Company’s generally applicable
policies.
3. Termination
of Employment.
3.1 If
Executive’s employment terminates for any reason, Executive shall not be
entitled to any payments, benefits, damages award or compensation other than
as
provided in this Agreement.
3.2 During
the Initial Term, the employment relationship may be terminated as follows:
(i)
by Executive for any reason or for Good Reason (as defined in Section 3.6
below), upon at least thirty (30) days’ written notice to the Company, effective
as of the date set forth in such notice or such earlier date determined by
the
Company following such notice, and subject to Section 3.4 below; (ii) by the
Company without Cause (as defined in Section 3.5 below), upon at least thirty
(30) days’ written notice to Executive, effective as of the date set forth in
such notice or such earlier date determined by Executive following such notice,
and subject to Section 3.4 below; and (iii) by the Company for Cause with
immediate effect; and (iv) upon Executive’s death or Disability (as defined in
Section 3.7 below) with immediate effect. Following the Initial Term, the
employment relationship may be terminated by Executive or the Company in
accordance with the notice policies of the Company in existence at the time
of
termination.
-3-
3.3 If
Executive’s employment terminates for any reason at any time, including but not
limited to Executive’s voluntary election to terminate his employment with or
without Good Reason, termination by the Company with or without Cause, or upon
Executive’s death or Disability, Executive (or Executive’s estate in the case of
death) will receive payment(s) for all salary and unpaid vacation accrued as
of
the date of Executive’s termination of employment, and shall be entitled to all
accrued benefits and to any additional benefits pursuant to the Company plans
or
policies in effect at the time of termination or as required by law. Executive
shall be entitled to separation benefits in the event of termination of his
employment only as provided in Section 3.4 below.
3.4 If
during
the Initial Term the Company terminates Executive’s employment without Cause
other than in circumstances of Executive’s death or Disability, or if during the
Initial Term Executive terminates his employment for Good Reason, provided
Executive signs a general release of all claims against Company and related
parties within sixty (60) days of such termination, Executive will be entitled
to receive the following separation benefits: continuation of Executive’s then
current monthly base salary, less applicable withholding taxes, if any, for
a
period of twelve (12) months, or, at Company’s option, a lump sum payment of an
amount equal to twelve (12) months of Executive’s then current annual base
salary, less applicable withholding taxes, if any, effective as of the effective
date of Executive’s execution of the general release of claims. All separation
benefits provided under this Section 3.4 will commence (or be payable if payable
in a lump sum) on or before ten (10) business days after the effective date
of
Executive’s general release of all claims.
3.5
For
purposes of this Agreement, “Cause” for Executive’s termination will exist at
any time after the happening of one or more of the following events:
(A) Executive’s
continued failure to substantially perform Executive’s duties, including
Executive’s refusal to comply in any material respect with the legal directives
of the Board of Directors so long as such directives are not inconsistent with
the Executive’s position and duties, and such refusal to comply is not remedied
within ten (10) working days after written notice from the Board of Directors,
which written notice shall state that failure to remedy such conduct may result
in termination for Cause; or
(B) Executive’s
dishonest or fraudulent conduct, or deliberate attempt to do an injury to the
Company or any of its subsidiaries, or conduct that materially discredits the
Company or any of its subsidiaries or is materially detrimental to the
reputation of the Company or any of its subsidiaries, including conviction
of a
felony; or
(C) Executive’s
breach of any element of the Confidentiality Agreement (as defined in Section
4
below), including without limitation, Executive’s theft or other
misappropriation of proprietary information of the Company or any of its
subsidiaries.
-4-
3.6 For
purposes of this Agreement, “Good Reason” for Executive to terminate his
employment shall exist if Executive voluntarily resigns within thirty (30)
days
of any of the following circumstances:
(A) a
material reduction in Executive’s job position or responsibilities to a position
or to responsibilities substantially lower than the position and
responsibilities assigned to Executive upon commencement of the employment
relationship pursuant to this Agreement;
(B) a
failure
by the Company to comply with any provision of Section 2 of this Agreement
which
has not been cured within fifteen (15) business days after notice of such
noncompliance has been given by Executive to the Company or if such failure
is
not capable of being cured in such time, a cure shall not have been diligently
initiated by Company within such fifteen (15) business day period; and
(C) during
the twelve (12) months commencing with the effective date of this Agreement,
a
relocation of Executive’s place of employment to a location outside of the
Shenzhen metropolitan area.
3.7 “Disability”
as used herein means Executive’s inability to discharge a material portion of
his responsibilities as set forth in Section 1 on account of a physical or
mental disability for either four (4) consecutive months or six (6)
non-consecutive months during a 12-month period. A termination of Executive’s
employment due to Disability will exist upon Executive’s Disability and the
Company’s election to terminate Executive’s employment.
4. Protection
of Confidential Information; Non-Competition.
4.1 Executive
shall sign, or has signed, a Confidential Information and Invention Assignment
Agreement (the “Confidentiality
Agreement”).
Executive hereby represents and warrants to Company that he has complied with
all obligations under the Confidentiality Agreement and agrees to continue
to
abide by the terms of the Confidentiality Agreement and further agrees that
the
provisions of the Confidentiality Agreement shall survive any termination of
this Agreement or of Executive’s employment relationship with Company.
4.2 Executive
hereby agrees that he shall not, during his employment pursuant to this
Agreement and for a period of twenty-four (24) months thereafter, do any of
the
following without the prior written consent of the Board of Directors:
(a) carry
on
any business or activity (whether directly or indirectly, as a partner,
shareholder, principal, agent, director, affiliate, employee or consultant)
which is competitive with the business conducted by the Company or any of its
subsidiaries (as conducted now or as those businesses come to be conducted
during the term of Executive’s employment), nor engage in any other activities
that conflict with Executive’s obligations to the Company and its
subsidiaries.
(b) solicit
or influence or attempt to influence any client, customer or other person either
directly or indirectly, to direct his or its purchase of the products and/or
services of the Company or any of its subsidiaries to any person, firm,
corporation, institution or other entity in competition with the business of
the
Company or any of its subsidiaries.
-5-
(c) solicit
or influence or attempt to influence any person employed by or a consultant
to
the Company or any of its subsidiaries to terminate or otherwise cease his
employment or consulting relationship with the Company or any of its
subsidiaries or become an employee of any competitor of the Company or its
subsidiaries.
(d) Executive
agrees that breach of this Section 4.2 will cause substantial injury to the
Company for which money damages will not provide an adequate remedy, and
Executive agrees that the Company shall have the right to obtain injunctive
relief, including the right to have this Section 4.2 specifically enforced
by
any court having equity jurisdiction, in addition to, and not in limitation
of,
any other remedies available to the Company under applicable law.
5. Successors.
5.1 This
Agreement shall be binding upon any successor (whether direct of indirect and
whether by purchase, lease, merger, consolidation, liquidation or otherwise)
to
all or substantially all of the Company’s business and/or assets. For all
purposes under this Agreement, the term “Company” shall include any successor to
the Company’s business and/or assets, which becomes bound by this Agreement.
5.2 This
Agreement and all rights of the Executive hereunder shall inure to the benefit
of, and be enforceable by, the Executive’s personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
6. Indemnification.
The
Company will indemnify and defend Executive to the maximum extent permitted
by
law, provided the Executive enters into the Company’s standard form of
Indemnification Agreement giving him such protection. Pursuant to the
Indemnification Agreement, the Company will agree to advance any expenses for
which indemnification is available to the extent allowed by applicable
law.
7. Miscellaneous
Provisions.
7.1 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 7.1. All notices shall be deemed to
have
been given as of the date of personal delivery, transmittal or mailing
thereof.
If
to
Executive: Mr.
Song
Hong
Suite
A,
12/F, Ritz Plaza
000
Xxxxxx Xxxx
Xxxxxxxxxxx,
Xxxxxxx
Xxxx
Xxxx
SAR
-6-
If
to the
Company: 0xx
Xxxxx, Xxxxxxxx 00,
Xxxxxxx
Xxxxxxxx Xxxxxxxx Xxxxxxxxx
Nanshan
District, Shenzhen, PRC
Post
Code: 518052
7.2 No
provision of this Agreement shall be modified, waived or discharged unless
the
modification, waiver or discharge is agreed to in writing and signed by the
Executive and by an authorized officer of the Company (other than the
Executive). No waiver by either party of any breach of, or of compliance with,
any condition or provision of this Agreement by the other party shall be
considered a waiver of any other condition or provision or of the same condition
or provision at another time.
7.3 No
other
agreements, representations or understandings (whether oral or written) which
are not expressly set forth in this Agreement have been made or entered into
by
either party with respect to the subject matter of this Agreement. This
Agreement and the Confidentiality Agreement contain the entire understanding
of
the parties with respect to the subject matter hereof.
7.4 All
Payments made under this Agreement shall be subject to reduction to reflect
taxes of other charges required to be withheld by law.
7.5 The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of Hong Kong (except
provisions governing the choice of law).
7.6 The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision hereof,
which shall remain in full force and effect.
7.7 This
Agreement and all rights and obligations of the Executive hereunder are personal
to the Executive and may not be transferred or assigned by the Executive at
any
time. The Company may assign its rights under this Agreement to any entity
that
assumes the Company’s obligations hereunder in connection with any sale or
transfer of all or a substantial portion of the Company’s assets to such
entity.
7.8 Any
dispute or claim arising out of or in connection with this Agreement will be
finally settled by binding arbitration in Hong Kong in accordance with the
rules
of the Hong Kong International Arbitration Centre by one arbitrator appointed
in
accordance with said rules. The Executive and the Company shall split the cost
of the arbitration filing and hearing fees and the cost of the arbitrator.
The
arbitrator will award attorneys fees to the prevailing party. The arbitrator
shall apply Hong Kong law, without reference to rules of conflicts of law or
rules of statutory arbitration, to the resolution of any dispute. Judgement
on
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Notwithstanding the foregoing, the parties may apply
to
any court of competent jurisdiction for preliminary or interim equitable relief,
or to compel arbitration in accordance with this paragraph, without breach
of
this arbitration provision. This Section 7.8 shall not apply to any dispute
or
claim relating to the Confidentiality Agreement.
-7-
7.9 The
headings of the paragraphs contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation
of
any provision of this Agreement.
7.10 This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
SIGNATURE
PAGE FOLLOWS
-8-
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
|
“COMPANY”
|
“EXECUTIVE”
|
|
SONG
HONG
|
|
|
By:
/s/ SONG YI
|
By:
/s/ SONG HONG
|
|
Title
CHIEF EXECUTIVE OFFICER
|
|
|
|
-9-
EXHIBIT
A
CONFIDENTIALITY
AGREEMENT
CONFIDENTIAL
INFORMATION AND
INVENTION
ASSIGNMENT AGREEMENT
As
a
condition of my becoming employed (or my employment being continued) by Diguang
International Development Co. Ltd. (the "Company"), a Nevada corporation (the
“Company”),
and
in consideration of my employment or consulting relationship with the Company
and my receipt of the compensation now and hereafter paid to me by the Company,
I agree to the following:
1. Employment
or Consulting Relationship.
I
understand and acknowledge that this Agreement does not alter, amend or expand
upon any rights I may have to continue in the employ of, or in the duration
of
my employment with, the Company under any existing agreements between the
Company and me or under applicable law. Any employment relationship between
the
Company and me, whether commenced prior to or upon the date of this Agreement,
shall be referred to herein as the “Relationship.”
2. Duties.
I will
perform for the Company and its subsidiaries such duties as may be designated
by
the Company from time to time. During the Relationship, I will devote my best
efforts to the interests of the Company and its subsidiaries and will not engage
in other employment or in any activities detrimental to the best interests
of
the Company and its subsidiaries without the prior written consent of the
Company.
3. At-Will
Relationship.
I
understand and acknowledge that except as otherwise provided in the Employment
Agreement dated March 17, 2006 between the Company and me, my Relationship
with
the Company is at-will, as defined under applicable law, meaning that either
I
or the Company may terminate the Relationship at any time for any reason or
no
reason, without further obligation or liability.
4. Confidential
Information.
(a) Company
Information.
I agree
at all times during the term of my Relationship with the Company and thereafter,
to hold in strictest confidence, and not to use, except for the benefit of
the
Company to the extent necessary to perform my obligations to the Company under
the Relationship, or to disclose to any person, firm, corporation or other
entity without written authorization of the Board of Directors of the Company,
any Confidential Information of the Company and its subsidiaries which I obtain
or create. I further agree not to make copies of such Confidential Information
except as authorized by the Company. I understand that “Confidential
Information”
means
any Company proprietary information, technical data, trade secrets or know-how,
including, but not limited to, research, product plans, products, services,
suppliers, customer lists and customers (including, but not limited to,
customers of the Company and its subsidiaries on whom I called or with whom
I
became acquainted during the Relationship), prices and costs, markets, software,
developments, inventions, laboratory notebooks, processes, formulas, technology,
designs, drawings, engineering, hardware configuration information, marketing,
licenses, finances, budgets or other business information disclosed to me by
the
Company and its subsidiaries either directly or indirectly in writing, orally
or
by drawings or observation of parts or equipment or created by me during the
period of the Relationship, whether or not during working hours. I understand
that Confidential Information includes, but is not limited to, information
pertaining to any aspect of the Company’s and its subsidiaries' business which
is either information not known by actual or potential competitors of the
Company and its subsidiaries or other third parties not under confidentiality
obligations to the Company and its subsidiaries, or is otherwise proprietary
information of the Company and its subsidiaries or its customers or suppliers,
whether of a technical nature or otherwise. I further understand that
Confidential Information does not include any of the foregoing items, which
has
become publicly and widely known and made generally available through no
wrongful act of mine or of others who were under confidentiality obligations
as
to the item or items involved.
-10-
(b) Prior
Obligations.
I
represent that my performance of all terms of this Agreement as an employee
of
the Company has not breached and will not breach any agreement to keep in
confidence proprietary information, knowledge or data acquired by me prior
or
subsequent to the commencement of my Relationship with the Company, and I will
not disclose to the Company and its subsidiaries or use any inventions,
confidential or non-public proprietary information or material belonging to
any
current or former client or employer or any other party. I will not induce
the
Company and its subsidiaries to use any inventions, confidential or non-public
proprietary information, or material belonging to any current or former client
or employer or any other party.
(c) Third
Party Information.
I
recognize that the Company and its subsidiaries have received and in the future
will receive confidential or proprietary information from third parties subject
to a duty on the Company’s and its subsidiaries' part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. I agree to hold all such confidential or proprietary information
in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out my work for the
Company and its subsidiaries consistent with the Company’s and its subsidiaries'
agreement with such third party.
5. Inventions.
(a) Inventions
Retained and Licensed.
I have
attached hereto, as Exhibit
A,
a list
describing with particularity all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by me prior to
the
commencement of the Relationship (collectively referred to as “Prior
Inventions”),
which
belong solely to me or belong to me jointly with another, which relate in any
way to any of the Company’s and its subsidiaries' proposed businesses, products
or research and development, and which are not assigned to the Company
hereunder; or, if no such list is attached, I represent that there are no such
Prior Inventions. If, in the course of my Relationship with the Company, I
incorporate into a Company product or its subsidiaries product, process or
machine a Prior Invention owned by me or in which I have an interest, the
Company is hereby granted and shall have a non-exclusive, royalty-free,
irrevocable, perpetual, worldwide license (with the right to sublicense) to
make, have made, copy, modify, make derivative works of, use, sell and otherwise
distribute such Prior Invention as part of or in connection with such product,
process or machine.
-11-
(b) Assignment
of Inventions.
I agree
that I will promptly make full written disclosure to the Company, will hold
in
trust for the sole right and benefit of the Company, and hereby assign to the
Company, or its designee, all my right, title and interest throughout the world
in and to any and all inventions, original works of authorship, developments,
concepts, know-how, improvements or trade secrets, whether or not patentable
or
registrable under copyright or similar laws, which I may solely or jointly
conceive or develop or reduce to practice, or cause to be conceived or developed
or reduced to practice, during the period of my Relationship with the Company
(collectively referred to as “Inventions”),
except as provided in Section 5(e) below. I further acknowledge that all
Inventions which are made by me (solely or jointly with others) within the
scope
of and during the period of my Relationship with the Company are “works
made for hire”
(to
the
greatest extent permitted by applicable law) and are compensated by my salary
(if I am an employee), unless regulated otherwise by the mandatory law of Hong
Kong.
(c) Maintenance
of Records.
I agree
to keep and maintain adequate and current written records of all Inventions
made
by me (solely or jointly with others) during the term of my Relationship with
the Company. The records may be in the form of notes, sketches, drawings, flow
charts, electronic data or recordings, laboratory notebooks, and any other
format. The records will be available to and remain the sole property of the
Company at all times. I agree not to remove such records from the Company’s
place of business except as expressly permitted by Company policy which may,
from time to time, be revised at the sole election of the Company for the
purpose of furthering the Company’s business. I agree to return all such records
(including any copies thereof) to the Company at
the
time of termination of my Relationship with the Company as provided for in
Section 6.
(d) Patent
and Copyright Rights.
I agree
to assist the Company, or its designee, at its expense, in every proper way
to
secure the Company’s, or its designee’s, rights
in
the Inventions and any copyrights, patents, trademarks, mask work rights, moral
rights, or other intellectual property rights relating thereto in any and all
countries, including the disclosure to the Company or its designee of all
pertinent information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments, recordations, and all other
instruments which the Company or its designee shall deem necessary in order
to
apply for, obtain, maintain and transfer such rights, or if not transferable,
waive such rights, and in order to assign and convey to the Company or its
designee, and any successors, assigns and nominees the sole and exclusive
rights, title and interest in and to such Inventions, and any copyrights,
patents, mask work rights or other intellectual property rights relating
thereto. I further agree that my obligation to execute or cause to be executed,
when it is in my power to do so, any such instrument or papers shall continue
after the termination of this Agreement until the expiration of the last such
intellectual property right to expire in any country of the world. If the
Company or its designee is unable because of my mental or physical incapacity
or
unavailability or for any other reason to secure my signature to apply for
or to
pursue any application for any United States or foreign patents, copyright,
mask
works or other registrations covering Inventions or original works of authorship
assigned to the Company or its designee as above, then I hereby irrevocably
designate and appoint the Company and
its
duly authorized officers and agents as my agent and attorney in fact, to act
for
and in my behalf and stead to execute and file any such applications and to
do
all other lawfully permitted acts to further the application for, prosecution,
issuance, maintenance or transfer of letters patent, copyright or other
registrations thereon with the same legal force and effect as if originally
executed by me. I hereby waive and irrevocably quitclaim to the Company or
its
designee any and all claims, of any nature whatsoever, which I now or hereafter
have for infringement of any and all proprietary rights assigned to the Company
or such designee.
-12-
6. Company
Property; Returning Company Documents.
I
acknowledge and agree that I have no expectation of privacy with respect to
the
Company’s telecommunications, networking or information processing systems
(including, without limitation, stored company files, e-mail messages and voice
messages) and that my activity and any files or messages on or using any of
those systems may be monitored at any time without notice. I further agree
that
any property situated on the Company’s premises and owned by the Company,
including disks and other storage media, filing cabinets or other work areas,
is
subject to inspection by Company personnel at any time with or without notice.
I
agree that, at the time of termination of my Relationship with the Company,
I
will deliver to the Company (and will not keep in my possession, recreate or
deliver to anyone else) any and all devices, records, data, notes, reports,
proposals, lists, correspondence, specifications, drawings, blueprints,
sketches, laboratory notebooks, materials, flow charts, equipment, other
documents or property, or reproductions of any of the aforementioned items
developed by me pursuant to the Relationship or otherwise belonging to the
Company, its successors or assigns. In the event of the termination of the
Relationship, I agree to sign and deliver the “Termination
Certification”
attached hereto as Exhibit B;
however, my failure to sign and deliver the Termination Certificate shall in
no
way diminish my continuing obligations under this Agreement.
7. Notification
to Other Parties.
(a) Employees.
In
the
event that I leave the employ of the Company, I hereby consent to notification
by the Company to my new employer about my rights and obligations under this
Agreement.
(b) Consultants.
I hereby
grant consent to notification by the Company to any other parties besides the
Company with whom I maintain a consulting relationship, including parties with
whom such relationship commences after the effective date of this Agreement,
about my rights and obligations under this Agreement.
8. Solicitation
of Employees, Consultants and Other Parties.
I agree
that during the term of my Relationship with the Company, and for a period
of
twenty-four (24) months immediately following the termination of my Relationship
with the Company for any reason, whether with or without cause, I shall not
either directly or indirectly solicit, induce, recruit or encourage any of
the
Company’s and its subsidiaries' employees or consultants to terminate their
relationship with the Company and its subsidiaries, or attempt to solicit,
induce, recruit, encourage or take away employees or consultants of the Company
and its subsidiaries, either for myself or for any other person or entity.
Further, during my Relationship with the Company and at any time following
termination of my Relationship with the Company for any reason, with or without
cause, I shall not use any Confidential Information of the Company and its
subsidiaries to attempt to negatively influence any of the Company’s and its
subsidiaries' clients or customers from purchasing Company products or services
or to solicit or influence or attempt to influence any client, customer or
other
person either directly or indirectly, to direct his or its purchase of products
and/or services to any person, firm, corporation, institution or other entity
in
competition with the business of the Company and its subsidiaries.
-13-
9. Representations
and Covenants.
(a) Facilitation
of Agreement.
I
agree
to execute promptly any proper oath or verify any proper document required
to
carry out the terms of this Agreement upon the Company’s written request to do
so.
(b) Conflicts.
I
represent that my performance of all the terms of this Agreement does not and
will not breach any agreement I have entered into, or will enter into with
any
third party, including without limitation any agreement to keep in confidence
proprietary information acquired by me in confidence or in trust prior to
commencement of my Relationship with the Company. I agree not to enter into
any
written or oral agreement that conflicts with the provisions of this
Agreement.
(c) Voluntary
Execution.
I
certify
and acknowledge that I have carefully read all of the provisions of this
Agreement and that I understand and will fully and faithfully comply with such
provisions.
10. General
Provisions.
(a) Governing
Law.
The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of Hong Kong, without giving effect to the principles
of
conflict of laws.
(b) Entire
Agreement.
This
Agreement sets forth the entire agreement and understanding between the Company
and me relating to the subject matter herein and merges all prior discussions
between us. No modification or amendment to this Agreement, nor any waiver
of
any rights under this Agreement, will be effective unless in writing signed
by
both parties. Any subsequent change or changes in my duties, obligations, rights
or compensation will not affect the validity or scope of this
Agreement.
(c) Severability.
If one
or more of the provisions in this Agreement are deemed void by law, then the
remaining provisions will continue in full force and effect.
(d) Successors
and Assigns.
This
Agreement will be binding upon my heirs, executors, administrators and other
legal representatives, and my successors and assigns, and will be for the
benefit of the Company, its successors, and its assigns.
(e) Survival.
The
provisions of this Agreement shall survive the termination of the Relationship
and the assignment of this Agreement by the Company to any successor in interest
or other assignee.
(f) Remedies.
I
acknowledge and agree that violation of this Agreement by me may cause the
Company irreparable harm, and therefore agree that the Company will be entitled
to seek extraordinary relief in court, including but not limited to temporary
restraining orders, preliminary injunctions and permanent injunctions without
the necessity of posting a bond or other security and in addition to and without
prejudice to any other rights or remedies that the Company may have for a breach
of this Agreement.
-14-
(g) ADVICE
OF COUNSEL.
I
ACKNOWLEDGE THAT, IN EXECUTING THIS AGREEMENT, I HAVE HAD THE OPPORTUNITY TO
SEEK THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND I HAVE READ AND UNDERSTOOD
ALL
OF THE TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE
CONSTRUED AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION
HEREOF.
[Signature
Page Follows]
-15-
The
parties have executed this Agreement on the respective dates set forth
below:
| COMPANY: | EMPLOYEE: | |
| DIGUANG INTERNATIONAL DEVELOPMENT CO., LTD | SONG HONG, an Individual: | |
| By: /s/ SONG YI | /s/ SONG HONG | |
| Signature | ||
| Name: SONG YI | ||
| Title: CHIEF EXECUTIVE OFFICER | ||
| Date: APRIL 19, 2006 | Date: APRIL 19, 2006 | |
|
Address:
0xx Xxxxx, Xxxxxxxx 00,
Xxxxxxx
Xxxxxxxx Xxxxxxxx Xxxxxxxxx
Nanshan
District, Shenzhen, PRC
Post
Code: 518052
|
Address:
Suite A, 12/F, Ritz Plaza
000
Xxxxxx Xxxx
Xxxxxxxxxxx,
Xxxxxxx
Xxxx
Xxxx SAR
|
-16-
EXHIBIT
A
LIST
OF PRIOR INVENTIONS
AND
ORIGINAL WORKS OF AUTHORSHIP
EXCLUDED
UNDER SECTION 5
|
Title
|
Date
|
Identifying
Number
or
Brief Description
|
||
___
No
inventions or improvements
___
Additional Sheets Attached
Signature
of Employee:_________________________________
Print
Name of Employee: _______________________________
Date:
______________________________________________
EXHIBIT
B
TERMINATION
CERTIFICATION
This
is
to certify that I do not have in my possession, nor have I failed to return,
any
devices, records, data, notes, reports, proposals, lists, correspondence,
specifications, drawings, blueprints, sketches, laboratory notebooks, flow
charts, materials, equipment, other documents or property, or copies or
reproductions of any aforementioned items belonging to the Company, its
subsidiaries, affiliates, successors or assigns (together the “Company”).
I
further
certify that I have complied with all the terms of the Company’s Confidential
Information and Invention Assignment Agreement signed by me, including the
reporting of any inventions and original works of authorship (as defined
therein), conceived or made by me (solely or jointly with others) covered by
that agreement.
I
further
agree that, in compliance with the Confidential Information and Invention
Assignment Agreement, I will preserve as confidential all trade secrets,
confidential knowledge, data or other proprietary information relating to
products, processes, know-how, designs, formulas, developmental or experimental
work, computer programs, data bases, other original works of authorship,
customer lists, business plans, financial information or other subject matter
pertaining to any business of the Company or any of its employees, clients,
consultants or licensees.
I
further
agree that for twenty-four (24) months from the date of this Certificate, I
shall not either directly or indirectly solicit, induce, recruit or encourage
any of the Company’s employees or consultants to terminate their relationship
with the Company, or attempt to solicit, induce, recruit, encourage or take
away
employees or consultants of the Company, either for myself or for any other
person or entity. Further, I shall not at any time use any Confidential
Information of the Company to negatively influence any of the Company’s clients
or customers from purchasing Company products or services or to solicit or
influence or attempt to influence any client, customer or other person either
directly or indirectly, to direct his or its purchase of products and/or
services to any person, firm, corporation, institution or other entity in
competition with the business of the Company.
| Date: ___________________________ | ||
| ________________________________ | ||
| (Employee’s Signature) | ||
| SONG HONG | ||
| (Type/Print Employee’s Name) |
2
