EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT is made and entered into as of the 21st
day of
April, 2008 (the “Agreement”),
by
and between CHINA GREEN AGRICULTURE, INC., a Nevada corporation (the
“Company”),
having its principal place of business at 0xx
Xxxxx,
Xxxxxxx X, Xxxxx A. No.181, South Taibai Road, Xi’an, Shaanxi Province, People’x
Xxxxxxxx xx Xxxxx 000000, and (the “Employee”)
Xxxxx
Xxxx Xxxx, with PRC Passport No. X00000000 (collectively the “Parties”).
WITNESSETH:
WHEREAS,
the Company is engaged in the business the research, development, production
and
distribution of humic acid organic liquid compound fertilizer (the “Business”);
and
WHEREAS,
Employee has represented that he has the experience, background and expertise
necessary to enable him to be the Company’s Chief Financial Officer; and
WHEREAS,
based on such representation, and the Company’s reasonable due diligence, the
Company wishes to employ Employee as its Chief Financial Officer, and Employee
wishes to be so employed, in each case, upon the terms hereinafter set
forth.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements herein contained, and other good and valuable consideration,
the
Parties agree as follows:
1. DEFINITIONS.
As
used
herein, the following terms shall have the following meanings:
1.1 “Affiliate”
means
any Person controlling, controlled by or under common control with the
Company.
1.2 “Board”
means
the Board of Directors of the Company.
1.3 “Common
Stock”
means
the Company’s $.001 par value per share common stock.
1.4 “Cause”
means
(i) conviction of a felony, or a plea of no lo contender whether or not
committed in the course of his employment by the Company; (ii) Employee’s
willful refusal to carry out instructions of the Chief Executive Officer or
the
Board which are consistent with Executive’s role as Chief Financial Officer; or
the breach of any material representation, warranty or agreement between
Employee and Company;
1.5 “Date
of Termination”
means
(a) in the case of a termination for which a Notice of Termination (as
hereinafter defined in Section 5.4) is required, 30 days from the date of actual
receipt of such Notice of Termination or, if later, the date specified therein,
as the case may be, and (b) in all other cases, the actual date on which the
Employee’s employment terminates during the Term of Employment (as hereinafter
defined in Section 3) (it being understood that nothing contained in this
definition of “Date of Termination” shall affect any of the cure rights provided
to the Employee or the Company in this Agreement).
1.6 “Disability”
means
Employee’s inability to render, for a period of three consecutive months,
services hereunder due to his physical or mental incapacity.
1.7 “Effective
Date”
means
April 23, 2008.
1.8 “Person(s)”
means
any individual or entity of any kind or nature, including any other person
as
defined in Section 3(a)(9) of the Securities Exchange Act of 1934, and as used
in Sections 13(d) and 14(d) thereof.
1.9 “Prospective
Customer”
shall
mean any Person which has either (a) entered into a nondisclosure agreement
with
the Company or any Company subsidiary or Affiliate or (b) has within the
preceding 12 months received a currently pending and not rejected written
proposal in reasonable detail from the Company or any of the Company’s
subsidiary or Affiliate.
2. EMPLOYMENT.
2.1 Agreement
to Employ.
Effective as of the Effective Date, the Company hereby agrees to employ
Employee, and Employee hereby agrees to serve, subject to the provisions of
this
Agreement, as an officer and employee of the Company.
2.2 Duties
and Schedule.
Employee shall serve as the Company’s Chief Financial Officer and shall have
such responsibilities as designated by the Company’s Chief Executive Officer or
the Board that are not inconsistent with applicable laws, regulations and rules.
Employee shall report directly to the Company’s Chief Executive Officer or the
Board as circumstances may require.
3. TERM
OF EMPLOYMENT.
Unless
Employee’s employment shall sooner terminate pursuant to Section 5, the Company
shall employ Employee for a term commencing on the Effective Date and ending
on
the third anniversary thereof (the “Term”).
The
period during which Employee is employed pursuant to this Agreement shall be
referred to as the “Term”
or
the
“Term
of Employment”.
4. COMPENSATION.
4.1 Salary.
Employee’s salary during the Term shall be $150,000 per year (the “Salary”),
payable in one payment of $12,500 per payment each month. The Board will review
Employee’s Salary at least once per year and may, in its discretion, increase
(but not decrease)
the
Salary
in accordance with the Company’s compensation policies. A discretionary bonus,
if any, may be paid each year as determined solely by the Board.
4.2 Options/Restricted
Common Stock.
As soon
as practicable after the Effective Date, Employee shall be awarded options
to
purchase 40,000 Common Stock, exercisable at $6.00 per share, 30% of which
shall
vest on June 30, 2008 and 70% of which shall vest on June 30, 2009, unless
otherwise earlier terminated, such grant shall be exclusively governed by the
terms of an Option Grant Agreement (“Option Grant Agreement”) between the
Company and Employee.
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4.3 Vacation.
Employee shall be entitled to ten
(10) days
of paid
vacation per year taken at such times so as to not materially impede his duties
hereunder. Employee shall be entitled to a pro
rata
number
of days of paid vacation during the period beginning on the Effective Date
through the end of the first fiscal year. Vacation days that are not taken
may
not be carried over into future years. Illness days shall be consistent with
the
Company’s standard policies.
4.4 Business
Expenses.
Employee shall be reimbursed by the Company for all ordinary and necessary
expenses incurred by Employee in the performance of his duties hereunder on
behalf of the Company, such expenses not to exceed $400 per month without the
prior written approval of the Company. Additionally, the Employee shall be
entitled to use a car provided by the Company for daily commute and business
purpose and the expenses related to the car, such as insurance and maintenances,
shall be afforded by the Company.
4.5 Insurances
and Social Welfares.
The
Company shall provide all the necessary insurances and social welfares,
including but not limited to medical insurance, injury insurance, retirement
insurance, unemployment insurance and housing fund, to the Employee according
to
relating policies of the Company and the relevant laws and regulations of
People’s Republic of China.
5. TERMINATION.
5.1 Termination
Due to Death or Disability.
5.1.1 Death.
This
Agreement shall terminate immediately upon the death of Employee. Upon
Employee’s death, Employee’s estate or Employee’s legal representative, as the
case may be, shall be entitled to Employee’s accrued and unpaid Salary and
vacation as of the date of Employee’s death, plus all other compensation and
benefits that were vested through the date of Employee’s death.
5.1.2 Disability.
In the
event of Employee’s Disability, this Agreement shall terminate and Employee
shall be entitled to (a) accrued and unpaid vacation through the first date
that
a Disability is determined; and (b) all other compensation and benefits that
were vested through the first date that a Disability has been
determined.
5.2
Termination .
Both
the Company and the Employee may terminate the employment hereunder by delivery
of written notice to the other party at least thirty (30) days prior to
termination date (the “Early Termination”). Upon the effective date of the Early
Termination, Employee shall be entitled to (a) accrued and unpaid vacation
through such effective date; and (b) all other compensation and benefits that
were vested through such effective date.
5.3
Notice of Termination.
Any
termination of the Employment by the Company or the Employee shall be
communicated by a notice in accordance with Section 8.4 of this Agreement (the
“Notice
of Termination”).
Such
notice shall (a) indicate the specific termination provision in this Agreement
relied upon and (b) if the termination date is for Cause, the date on which
the
Employee’s employment is to be terminated.
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5.4
Payment.
The
Employee shall not be entitled to severance payments upon any termination
provided in Section 5 herein. Except as otherwise provided in this Agreement,
any payments to which the Employee shall be entitled under this Section 5,
including, without limitation, any economic equivalent of any benefit, shall
be
made as promptly as possible following the Date of Termination, but in no event
more than 30 days after the Date of Termination. If the amount of any payment
due to the Employee cannot be finally determined within 30 days after the Date
of Termination, such amount shall be reasonably estimated on a good faith basis
by the Company and the estimated amount shall be paid no later than thirty
(30)
days after such Date of Termination. As soon as practicable thereafter, the
final determination of the amount due shall be made and any adjustment requiring
a payment to Employee shall be made as promptly as practicable. The payment
of
any amounts under this Section 5 shall not affect Employee’s rights to receive
any workers’ compensation benefits. Notwithstanding any provision to the
contrary in this Agreement, the vesting or termination of vested options shall
be solely governed by the terms of the Option Grant Agreement.
6. EMPLOYEE’S
REPRESENTATION.
The
Employee represents and warrants to the Company that: (a) he is subject to
no
contractual, fiduciary or other obligation which may affect the performance
of
his duties under this Agreement; (b) he has terminated, in accordance with
their
terms, any contractual obligation which may affect his performance under this
Agreement; and (c) his employment with the Company will not require him to
use
or disclose proprietary or confidential information of any other person or
entity.
7. NON-COMPETITION:
NON-DISCLOSURE; INVENTIONS.
7.1 Trade
Secrets.
Employee
acknowledges that his employment position with the Company is one of trust
and
confidence. Employee further understands and acknowledges that, during the
course of Employee's employment with the Company, Employee will be entrusted
with access to certain confidential information, specialized knowledge and
trade
secrets which belong to the Company, or its subsidiaries, including, but
not
limited to, their methods of operation and developing customer base, its
manner
of cultivating customer relations, its practices and preferences, current
and
future market strategies, formulas, patterns, patents, devices, secret
inventions, processes, compilations of information, records, and customer
lists,
all of which are regularly used in the operation of their business and which
Employee acknowledges have been acquired, learned and developed by them only
through the expenditure of substantial sums of money, time and effort, which
are
not readily ascertainable, and which are discoverable only with substantial
effort, and which thus are the confidential and the exclusive Property of
the
Company and its subsidiaries (hereinafter “Trade Secrets”). Employee covenants
and agrees to use his best efforts and utmost diligence to protect those
Trade
Secrets from disclosure to third parties. Employee further acknowledges that,
absent the protections afforded the Company and its subsidiaries in Section
7,
Employee would not be entrusted with any of such Trade Secrets. Accordingly,
Employee agrees and covenants (which agreement and covenant shall survive
the
termination of this Agreement regardless of the reason) as follows:
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7.1.1 Employee
will at no time take any action or make any statement that will disparage or
discredit the Company, any of its subsidiaries or their products or
services;
7.1.2 During
the period of Employee's employment with the Company and for 60 months
immediately following the termination of such employment, Employee will not
disclose or reveal to any person, firm or corporation other than in connection
with the business of the Company and its subsidiaries or as may be required
by
law, any Trade Secret used or useable by the Company or any of its subsidiaries,
divisions or Affiliates (collectively the “Companies”)
in
connection with their respective businesses, known to Employee as a result
of
his employment by the Company, or other relationship with the Companies, and
which is not otherwise publicly available. Employee further agrees that during
the term of this Agreement and at all times thereafter, he will keep
confidential and not disclose or reveal to any person, firm or corporation
other
than in connection with the business of the Companies or as may be required
by
applicable law, any information received by him during the course of his
employment with regard to the financial, business, or other affairs of the
Companies, their respective officers, directors, customers or suppliers which
is
not publicly available;
7.1.3 Upon
the
termination of Employee's employment with the Company, Employee will return
to
the Company all documents, customer lists, customer information, product
samples, presentation materials, drawing specifications, equipment and other
materials relating to the business of any of the Companies, which Employee
hereby acknowledges are the sole and exclusive property of the Companies or
any
one of them. Nothing in this Agreement shall prohibit Employee from retaining,
at all times any document relating to his personal entitlements and obligations,
his rolodex, his personal correspondence files; and any additional personal
property;
7.1.4 During
the term of the Agreement and, for a period of six (6) months immediately
following the termination of the Employee's employment with the Company,
Employee will not: compete, or participate as a shareholder, director, officer,
partner (limited or general), trustee, holder of a beneficial interest,
employee, agent of or representative in any business competing directly with
the
Companies without the prior written consent of the Company, which may be
withheld in the Company’s sole discretion; provided, however, that nothing
contained herein shall be construed to limit or prevent the purchase or
beneficial ownership by Employee of less than five percent of any security
registered under Section 12 or 15 of the Securities Exchange Act of 1934;
7.1.5 During
the term of the Agreement and, for a period of eighteen
(18) months immediately following the termination of the Employee's employment
with the Company, Employee will not:
7.1.5.1 solicit
or accept competing business from any customer of any of the Companies or any
person or entity known by Employee to be or have been, during the preceding
18
months, a customer or Prospective Customer of any of the Companies without
the
prior written consent of the Company;
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7.1.5.2 encourage,
request or advise any such customer or Prospective Customer of any of the
Companies to withdraw or cancel any of their business from or with any of the
Companies; or
7.1.6 Employee
will not during the period of his employment with the Company and, subject
to
the provisions hereof for a period of eighteen (18) months immediately following
the termination of Employee's employment with the Company,
7.1.6.1 conspire
with any person employed by any of the Companies with respect to any of the
matters covered by this Section 7;
7.1.6.2 encourage,
induce or solicit any person employed by any of the Companies to facilitate
Employee's violation of the covenants contained in this Section 7;
7.1.6.3 assist
any entity to solicit the employment of any employee of any of the Companies;
or
7.1.6.4 employ
or
hire any employee of any of the Companies, or solicit or induce any such person
to join the Employee as a partner, investor, coventurer, or otherwise encourage
or induce them to terminate their employment with any of the Companies.
7.2 Employee
expressly acknowledges that all of the provisions of this Section 7 of this
Agreement have been bargained for and Employee's agreement hereto is an integral
part of the consideration to be rendered by the Employee which justifies the
rate and extent of the compensation provided for hereunder.
7.3 Employee
acknowledges and agrees that a violation of any one of the covenants contained
in this Section 7 shall cause irreparable injury to the Company, that the remedy
at law for such a violation would be inadequate and that the Company shall
thus
be entitled to temporary injunctive relief to enforce that covenant until such
time that a court of competent jurisdiction either (a) grants or denies
permanent injunctive relief or (b) awards other equitable remedy(s) as it sees
fit.
7.4 Successors.
7.4.1 Employee.
This
Agreement is personal to Employee and, without the prior express written consent
of the Company, shall not be assignable by Employee, except that Employee’s
rights to receive any compensation or benefits under this Agreement may be
transferred or disposed of pursuant to testamentary disposition, intestate
succession or a qualified domestic relations order or in connection with a
Disability. This Agreement shall inure to the benefit of and be enforceable
by
Employee’s estate, heirs, beneficiaries, and/or legal
representatives.
7.4.2 The
Company.
This
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors and assigns.
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7.5 Inventions
and Patents.
The
Company shall be entitled to the sole benefit and exclusive ownership of any
inventions or improvements in products, processes, or other things that may
be
made or discovered by Employee while he is in the service of the Company, and
all patents for the same. During the Term, Employee shall do all acts necessary
or required by the Company to give effect to this section and, following the
Term, Employee shall do all acts reasonably necessary or required by the Company
to give effect to this section. In all cases, the Company shall pay all costs
and fees associated with such acts by Employee.
8. MISCELLANEOUS.
8.1 Indemnification.
The
Company and each of its subsidiaries shall, to the maximum extent provided
under
applicable law, indemnify and hold Employee harmless from and against any
expenses, including reasonable attorney’s fees, judgments, fines, settlements
and other legally permissible amounts (“Losses”),
incurred in connection with any proceeding arising out of, or related to,
Employee’s employment by the Company, other than any such Losses incurred as a
result of Employee’s negligence or willful misconduct. The Company shall, or
shall cause a subsidiary thereof to, advance to Employee any expenses, including
attorney’s fees and costs of settlement, incurred in defending any such
proceeding to the maximum extent permitted by applicable law. Such costs and
expenses incurred by Employee in defense of any such proceeding shall be paid
by
the Company or applicable subsidiary in advance of the final disposition of
such
proceeding promptly upon receipt by the Company of (a) written request for
payment; (b) appropriate documentation evidencing the incurrence, amount and
nature of the costs and expenses for which payment is being sought; and (c)
an
undertaking adequate under applicable law made by or on behalf of Employee
to
repay the amounts so advanced if it shall ultimately be determined pursuant
to
any non-appealable judgment or settlement that Employee is not entitled to
be
indemnified by the Company or any subsidiary thereof. the Company will provide
Employee with coverage under all director’s and officer’s liability insurance
policies which is has in effect during the Term, with no deductible to
Employee.
8.2 Applicable
Law.
Except
as
may be otherwise provided herein, this Agreement shall be governed by and
construed in accordance with the laws of the State of New York, applied without
reference to principles of conflict of laws.
8.3 Amendments.
This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors or legal
representatives.
8.4 Notices.
All
notices and other communications hereunder shall be in writing and shall be
given by hand-delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If
to the
Employee:
Xxxxx
Xxxx
7
[Add
address]
Telephone:
Mobile:
00000000000
E-mail:
xxxxxxxx000@xxxxxxx.xxx
With
a
copy to (which shall not constitute a notice):
If
to the
Company:
0xx
Xxxxx, Xxxxxxx X, Xxxxx A. No.181, South Taibai Road,
Xi’an,
Shaanxi Province,
People’s
Republic of China 710065
Attn:
Mr. Xxx Xx
Tel:
(00-00) 0000-0000
With
a copy to (which
shall not constitute notice):
Guzov
Ofsink, LLC
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxx
Tel:
000-000-0000
Or
to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notices and communications shall be effective when
actually received by the addressee.
8.5 Withholding.
The
Company may withhold from any amounts payable under the Agreement, such federal,
state and local income, unemployment, social security and similar employment
related taxes and similar employment related withholdings as shall be required
to be withheld pursuant to any applicable law or regulation.
8.6 Severability.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
and any such provision which is not valid or enforceable in whole shall be
enforced to the maximum extent permitted by law.
8.7 Captions.
The
captions of this Agreement are not part of the provisions and shall have no
force or effect.
8.8 Entire
Agreement.
This
Agreement contains the entire agreement among the parties concerning the subject
matter hereof and supersedes all prior agreements, understandings, discussions,
negotiations and undertakings, whether written or oral, between the parties
with
respect thereto.
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8.9 Survivorship.
The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement or the Employee’s employment hereunder to the
extent necessary to the intended preservation of such rights and
obligations.
8.10 Waiver.
Either
Party's failure to enforce any provision or provisions of this Agreement shall
not in any way be construed as a waiver of any such provision or provisions,
or
prevent that party thereafter from enforcing each and every other provision
of
this Agreement.
8.11 Joint
Efforts/Counterparts.
Preparation
of this Agreement shall be deemed to be the joint effort of the parties hereto
and shall not be construed more severely against any party. This Agreement
may
be signed in two or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one and the same
instrument.
8.12 Representation
by Counsel.
Each
Party hereby represents that it has had the opportunity to be represented by
legal counsel of its choice in connection with the negotiation and execution
of
this Agreement.
8.13 Section
409A.
Notwithstanding anything in this Agreement or elsewhere to the contrary, (i)
if,
based on Internal Revenue Service guidance available as of the date the payment
or provision of any amount or other benefit is specified to be made under this
Agreement or elsewhere, Employee reasonably determines that the payment or
provision of such amount or other benefit at such specified time may potentially
subject Employee to “additional tax” under section 409A(a)(1)(B) of the Internal
Revenue Code of 1986, as amended (together with any interest or penalties
imposed with respect to, or in connection with, such tax, a “409A
Tax”)
with
respect to the payment of such amount or the provision of such benefit, and
if
payment or provision thereof at a later date would likely avoid any such 409A
Tax, and if the deferral of such payment will not create an additional expense
to the Company, then the payment or provision thereof shall be postponed to the
earliest business day on which Employee reasonably determines such amount or
benefit can be paid or provided without incurring any such 409A Tax, but in
no
event later than the first business day after the six-month anniversary of
the
Date of Termination (the “Delayed
Payment Date”).
The
Company and Employee may agree to take other actions to avoid the imposition
of
409A Tax at such time and in such manner as permitted under Section
409A.
--
Signature page follows --
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IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the day and year first above
written.
|
EMPLOYEE:
/s/
Xxxxx Xxxx
Xxxx
Xxxxx
Xxxx Xxxx
|
By:
/s/
Xxx
Xx
Xxx
Xx
Chief
Executive Officer
|
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