EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the
“Agreement”) is made as of September 30, 2009 between Wuhan Guoce Nordic
New Energy Co., Ltd. (the "Company"), a wholly
foreign-owned company organized under the law of the People's Republic of China
(the "PRC"), and Hou Tie
Xin ("Chairman", ID No.:
00000000000000000). The Company and the Chairman are also referred to herein
together as the “Parties” and individually as a
“Party.”
In
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment.
The
Company shall employ Hou Tie Xin, and Hou Tie Xin hereby accepts employment with
the Company, upon the terms and conditions set forth in this Agreement for a
period beginning on the date hereof and ending on the fifth anniversary date
(the “ Initial Employment
Period”); and this Agreement shall automatically be renewed on the same
terms and conditions set forth herein as modified from time to time by the
parties hereto for additional one-year periods as soon as the expiration of the
Initial Employment Period, unless the Company or Chairman gives the other party
written notice of the election not to renew the Employment Period at least 30
days prior to any such renewal date.
2. Position
and Duties.
(a)
During the Employment Period, Hou Tie Xin shall be appointed or
seconded to the Company to serve as the Chairman and shall have the normal
duties, responsibilities, functions and authority of the Chairman, subject to
the power and authority of the Board to expand or limit such duties,
responsibilities, functions and authority within the scope of duties,
responsibilities, functions and authority associated with the position of the
Chairman. During the Employment Period, Chairman shall render such
administrative, financial and other executive and managerial services to the
Company and its affiliates which are consistent with Chairman's position as the
Board may from time to time direct.
(b)
During the Employment Period, Chairman shall perform his duties,
responsibilities and functions to the Company hereunder to the best of his
abilities in a diligent, trustworthy, professional and efficient manner and
shall comply with the Company’s policies and procedures in all material
respects. In performing his duties and exercising his authority under
the Agreement, Chairman shall organize the Board of Directors, support the
business and strategic plans approved from time to time by the Board and shall
support and cooperate with the General Manager to expand the Company’s
businesses and operate profitably and in conformity with the business and
strategic plans approved by the Board.
(c)
Chairman’s position shall be based at the current principal executive
offices in Wuhan, PRC, or any other location of the Company in the PRC as
mutually agreed by the Board and Chairman.
3. Compensation
and Benefits.
(a)
During the Employment Period, Chairman's base salary shall be RMB [ ]
per annum or such other rate as the Board may determine from time to time (as
adjusted from time to time, the "Base Salary"), which salary
shall be payable by the Company in regular installments in accordance with the
Company's general payroll practices (in effect from time to
time). The Company shall also purchase social insurances and provide
welfare and benefits to Chairman according to the applicable national and local
labor laws and regulations.
(b)
In addition to the Base Salary, the Board may, in its sole discretion,
award a bonus (the “Performance
Bonus”) to Chairman with respect to each fiscal year during the
Employment Period. The reference amount for Performance Bonus shall be equal to
25% of the Base Salary. The actual amount of the Performance Bonus
awarded shall be dependent upon the degree to which certain financial targets of
the Company, as established annually by the Board, are achieved.
(c)
In addition to the Base Salary and any bonuses payable to Chairman
pursuant to Section 1, Chairman shall be entitled to the following benefits
during the Employment Period, unless otherwise modified by the Board: (i) a
housing allowance in an amount of RMB [ ] per year; (ii)
a fully maintained Company car and a driver; (iii) annual leave of 20 days plus
Chinese national holidays..
(d)
All amounts payable to Chairman as compensation hereunder shall be
subject to all required and customary withholding by the Company.
4. Working
Hours
Chairman
shall work under a flexible working hour scheme after the Company obtains the
relevant approval from the competent labor authority. Unless the
applicable laws and regulations expressly provide otherwise, Chairman shall not
be entitled to any overtime pay.
5. Working
Environment and Employment Safety
(a)
the Company shall provide the Chairman with a working environment
that complies with national regulations with respect to workplace health and
safety.
(b)
the Company shall provide Chairman with necessary working conditions and
set up other necessary employee protection mechanism in accordance with the
national and local regulations.
6. Termination.
The
Company may terminate the employment of Chairman before the Employment Period
expires immediately upon issuing a written notice to Chairman after occurrence
of any of the following events:
(i) Chairman
has materially violated any of the Company's rules or policies;
(ii) Chairman
has committed an act of gross negligence or graft which causes substantial
damage or adverse effect to the Company's interests;
(iii) Chairman has been
charged or convicted with criminal liabilities in accordance with the
laws.
7. Confidential
Information
(a)
Obligation to Maintain Confidentiality. Chairman acknowledges that the
continued success of the Company depends upon the use and protection of a large
body of confidential and proprietary information. All of such
confidential and proprietary information now existing or to be developed in the
future will be referred to in this Agreement as "Confidential
Information." Confidential Information includes, without specific
limitation, the information, observations and data obtained by him during the
course of his performance under this Agreement concerning the business and
affairs of the Company and its affiliates, information concerning acquisition
opportunities in or reasonably related to the Company's or its affiliates'
business or industry of which Chairman becomes aware during the Employment
Period, the persons or entities that are current, former or prospective
suppliers or customers of any one or more of them during Chairman's course of
performance under this Agreement, as well as development, transition and
transformation plans, methodologies and methods of doing business, strategic,
marketing and expansion plans, including plans regarding planned and potential
sales, financial and business plans, employee lists and telephone numbers,
locations of sales representatives, new and existing programs and services,
prices and terms, customer service, integration processes, requirements and
costs of providing service, support and equipment. Therefore,
Chairman agrees that during the Employment Period and at anytime thereafter he
shall not disclose to any unauthorized person or use for his own account any of
such Confidential Information without both Board's prior written consent, unless
and to the extent that any Confidential Information (i) becomes generally
known to and available for use by the public other than as a result of
Chairman's acts or omissions to act or (ii) is required to be disclosed
pursuant to any applicable law or court order. Chairman agrees to
deliver to the Company at the end of the employment period, or at any other time
the Company may request in writing, all memoranda, notes, plans, records,
reports and other documents (and copies thereof) relating to the business of the
Company or its affiliate (including, without limitation, all Confidential
Information) that he may then possess or have under his control.
(b)
Ownership of Intellectual Property. Chairman agrees to
make prompt and full disclosure to the Company or its affiliate, as the case may
be, all ideas, discoveries, trade secrets, inventions, innovations,
improvements, developments, methods of doing business, processes, programs,
designs, analyses, drawings, reports, data, software, firmware, logos and all
similar or related information (whether or not patentable and whether
or not reduced to practice) that relate to the Company's or its affiliate's
actual or anticipated business, research and development, or existing or future
products or services and that are conceived, developed, acquired, contributed
to, made, or reduced to practice by Chairman (either solely or jointly with
others) while employed by the Company and for a period of one (1) year
thereafter (collectively, "Work
Product"), provided that such period of one year only applies to the
inventions, utility models and designs which are related to Chairman's duties
and responsibilities to the Company. The ownership of all rights
under intellectual property laws of any work falling within the definition of
Work Product shall vest in the Company.
(c)
Third Party Information. Chairman understands that the Company will
receive from third parties confidential or proprietary information ("Third Party Information")
subject to a duty on the Company's part to maintain the confidentiality of such
information and to use it only for certain limited purposes. During
the Employment Period and thereafter, and without in any way limiting the
provisions of Section 7(a) above, Chairman will hold Third Party Information in
the strictest confidence and will not disclose to anyone (other than personnel
of the Company or its affiliates who need to know such information in connection
with their work for the Company or such affiliates) or use, except in connection
with his work for the Company or its affiliates, Third Party Information unless
expressly authorized by the Board in writing.
8. Chairman's
Representations. Chairman hereby represents and warrants to the
Company that (i) the execution, delivery and performance of this Agreement by
Chairman do not and shall not conflict with, breach, violate or cause a default
under any contract, agreement, instrument, order, judgment or decree to which
Chairman is a party or by which he is bound, and (ii) upon the execution and
delivery of this Agreement by the Company, this Agreement shall be the valid and
binding obligation of Chairman, enforceable in accordance with its
terms. Chairman hereby acknowledges and represents that he has
consulted with independent legal counsel regarding his rights and obligations
under this Agreement and that he fully understands the terms and conditions
contained herein.
9. Survival. Sections
7, 8, 9, 15, 16 and 18 inclusive, shall survive and continue in full force in
accordance with their terms notwithstanding the expiration or termination of the
Employment Period.
10. Notices. Any
notice provided for in this Agreement shall be in writing and shall be either
personally delivered, sent by reputable overnight courier service or mailed by
first class mail, return receipt requested, to the recipient at the address
below indicated:
Notices
to Chairman:
Hou Tie
Xin
Address:
[]
Tel: []
Fax:
[]
Attention:
[Tiexin Hou]
Notices
to the Company:
Wuhan
Guoce Nordic New Energy Co., Ltd
Address:
Xx. 00 xx Xxxxxxxx Xxxxxx, Xxxxxxxx Science and Technology Industrial Park, East
Lake Development District, Wuhan City, Hubei Province
Tel: []
Fax:
[]
Attention:
[]
or such
other address or to the attention of such other person as the recipient party
shall have specified by prior written notice to the sending
party. Any notice under this Agreement shall be deemed to have been
given when so delivered, sent or mailed.
11. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or any
action in any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
12. Complete
Agreement. This Agreement, those documents expressly referred to
herein and other documents of even date herewith embody the complete agreement
and understanding among the parties and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any
way.
13. No
Strict Construction. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any
party.
14. Choice
of Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
applicable laws of the People's Republic of China, without giving effect to any
choice of law or conflict of law rules or provisions.
15. Arbitration. Each
party hereto agrees that any claim or dispute ("Claim") arising out of or
relating to the rights and obligations acknowledged and agreed to in this
Agreement and the employment of Chairman by the Company (including, without
limitation, disputes and claims regarding employment discrimination, sexual
harassment, termination and discharge), whether such Claim arose or the facts on
which such Claim is based occurred prior to or after the execution and delivery
of adoption of this Agreement shall be resolved according to the following
procedures:
(a)
consultation between Chairman and the Company to resolve the Claim;
(b)
if no resolution with respect to a Claim is reached through consultation within
thirty (30) days after the commencement of the same, either party may, within
sixty (60) days after the occurrence of the Claim, submit the Claim to a local
labor dispute arbitration tribunal for arbitration; and
(c) either
party may appeal the arbitration award rendered by such local labor dispute
arbitration tribunal to a competent People's Court within fifteen (15) days
after the issuance of such award.
16. Amendment
and Waiver. The provisions of this Agreement may be amended or waived
only with the prior written consent of a majority of the Board (excluding
Chairman) on the one hand and Chairman on the other hand, and no course of
conduct or course of dealing or failure or delay by any party hereto in
enforcing or exercising any of the provisions of this Agreement (including,
without limitation, the Company’s right to terminate the Employment Period for
Cause) shall affect the validity, binding effect or enforceability of this
Agreement or be deemed to be an implied waiver of any provision of this
Agreement.
17. Chairman's
Cooperation. During the Employment Period and thereafter, Chairman
shall cooperate with the Company and its affiliates in any internal
investigation, any administrative, regulatory or judicial investigation or
proceeding or any dispute with a third party as reasonably requested by the
Company (including, without limitation, Chairman being available to the Company
upon reasonable notice for interviews and factual investigations, appearing at
the Company's request to give testimony without requiring service of a subpoena
or other legal process, volunteering to the Company all pertinent information
and turning over to the Company all relevant documents which are or may come
into Chairman's possession, all at times and on schedules that are reasonably
consistent with Chairman's other permitted activities and
commitments).
18. Counterparts. This
Agreement may be executed in separate counterparts, each of which is deemed to
be an original and all of which taken together constitute one and the same
agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
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Wuhan
Guoce Nordic New Energy Co., Ltd
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By:
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Name:
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Title:
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Hou
Tie Xin
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