EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT
(“Agreement”),
is
dated as of April 15th,
2008,
by and between American Dairy, Inc., a Utah corporation (the “Company”),
and
Xxxxxxxx Xxxx (the “Executive”).
W
I T N E S S E T H
WHEREAS,
the
Company desires to employ the Executive, and the Executive desires to accept
such employment, on the terms and conditions set forth herein, effective
as of
April 1st,
2008.
NOW,
THEREFORE,
in
consideration of the mutual promises, representations and warranties set
forth
herein, and for other good and valuable consideration, it is hereby agreed
as
follows:
1. Employment.
The
Company hereby agrees to employ the Executive, and the Executive hereby accepts
such employment, upon the terms and conditions set forth herein. The Company
agrees to fully cooperate with Executive in connection with the obtaining
of
work visas or other work permits as may be necessary for Executive to fulfill
his responsibilities hereunder. Executive’s primary office location shall be in
Beijing and Shanghai, but Executive shall be expected to perform many
work-related duties in other locations in China and in the United States
as
well.
2. Term.
This
Agreement shall commence on the date hereof (the “Commencement
Date”)
and
terminate on the fourth anniversary thereof, unless sooner terminated as
provided in Section 8 of this Agreement (the “Employment
Period”).
3. Position
and Duties.
(a) During
the Employment Period, the Executive shall serve as the Chief Financial Officer
of the Company and shall have such duties and responsibilities as are consistent
with such office, and as otherwise may be prescribed by the Board of Directors
of the Company (the “Board”)
from
time to time.
(b) During
the Employment Period, the Executive shall perform and discharge his duties
and
responsibilities well and faithfully and in accordance with the terms and
conditions of this Agreement, and shall devote his best talents, efforts
and
abilities to the performance of his duties hereunder.
(c) During
the Employment Period, the Executive shall devote substantially all of his
business time, attention and energy to performing his duties and
responsibilities hereunder and shall have no other employment and no other
outside business activities whatsoever; provided,
however,
that
the Executive shall not be precluded from making passive investments which
do
not require the devotion of any significant time or effort.
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4. Compensation.
(a) Base
Salary.
In
consideration for the Executive’s services hereunder, the Company shall pay the
Executive a minimum annual salary (as the same shall be increased from time
to
time at the discretion of the Board, the “Base
Salary”)
of One
Hundred Seventy Five Thousand Dollars ($175,000), payable in accordance with
the
customary payroll practices of the Company.
(b) Sign
on Bonus.
In
partial consideration for the Executive’s execution of this Agreement, and the
services to be provided by the Executive to the Company hereunder, the Company
shall pay to Executive a one-time sign on bonus in the amount of Four Hundred
Thousand Renminbi (400,000 RMB), payable on the Commencement Date. This bonus
shall be subject to all applicable tax and payroll withholdings.
(c) Discretionary
Bonus.
In
addition to the Base Salary, the Executive shall be eligible to receive
discretionary bonuses at times and in amounts to be determined by the Board,
or
if the Board organizes a compensation committee, such committee (the
“Committee”)
(excluding the Executive if he is then a member of the Committee), in its
sole
discretion. This bonus, if any, shall be subject to all applicable tax and
payroll withholdings.
(d) Stock
Option Grants.
Executive shall be entitled to receive options to purchase an aggregate of
270,000 shares of Common Stock of the Company (the “Options”)
in
accordance with the schedule set forth on Schedule
A
hereto.
The Options shall have a term of four (4) years. Any such grant of Options,
or
any stock option plan pursuant to which any such Options are granted, shall
have
been approved by the Company’s shareholders in accordance with applicable NYSE
rules and regulations.
(e) Withholding.
All
payments required to be made by the Company to the Executive under this
Agreement shall be subject to withholding taxes, social security and other
payroll deductions in accordance with applicable law and the Company’s policies
applicable to executives of the Company. In addition, the Executive will
be
subject to the Company’s tax equalization policy. A hypothetical income
tax, defined as the home-country income tax the Executive would have incurred
under United States tax laws, will be withheld from the Executive’s salary each
pay period. There will be a tax settlement prepared on an annual basis by
the
Company’s outside tax consultant for the purpose of comparing the Executive’s
hypothetical withholding to the Executive’s actual hypothetical liability for
that year.
5. Benefits.
During
the Employment Period, the Company shall provide the Executive with the
following benefits (which may be grossed up as required):
(a) Medical,
Health and Dental Insurance Benefits.
The
Company shall at its own expense provide the Executive and his eligible
dependents with the medical, health and dental insurance coverage provided
by
the Company generally to its executives or at the Executive’s option in an
annual amount not to exceed Thirty-Five Thousand Dollars ($35,000). Nothing
herein shall prevent the Company from amending and/or terminating the coverages
and/or plans described in this Section 5(a); provided,
however,
that
such amendment and/or termination is applicable generally to the Executives
of
the Company.
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(b) Disability
and Accident Insurance Benefits.
Provided
that (i) the Executive is and remains insurable; (ii) the Executive is and
remains eligible for coverage under either a group insurance policy maintained
by the Company or its affiliates, as determined by the insurance underwriter
designated by the Company, based upon an individual in good health and such
other factors, including, but not limited to, age, gender and income; and
(iii)
the Executive shall do, execute, acknowledge and deliver, or cause to be
done,
executed, acknowledged or delivered, all documents, applications, instruments,
assurances or acts (including but not limited to physical examinations),
as may
be necessary to obtain such insurance coverage, the Company shall provide
the
Executive with long term disability insurance coverage from the underwriter
providing for “lifetime” disability benefits in an amount to be determined by
the Board. In the event the underwriter offers the Executive (x) such coverage
at a cost in excess of the standard rate, or (y) insurance coverage providing
reduced benefits, the Executive may, at his option, pay the excess cost to
obtain the insurance coverage or accept the disability insurance coverage
with
reduced benefits. Under
no
circumstances will the Company have any liability for the excess cost or
resulting from the inability to obtain full benefits.
(c) 401(k)
Plan.
The
Executive shall have the ability to participate in any Company 401(k) Plan
or
other retirement plan made available by the Company to its employees, in
accordance with the terms and conditions of such plan.
(d) Liability
Insurance.
The
Executive shall be provided with the liability insurance coverage generally
provided to officers and managers of the Company. However, the Company shall
not
be required to obtain such coverage. Notwithstanding the foregoing, the Company
agrees to indemnify the Executive against all costs, damages and expenses,
including attorneys’ fees, incurred by the Executive as a result of claims by
third parties arising out of or from the Executive’s lawful acts as an Executive
of the Company, provided such acts are not grossly negligent and are performed
in good faith and in a manner reasonably believed by the Executive to be
in the
Company’s best interests. Any counsel employed to defend the Executive in any
such action shall be reasonably acceptable to the Executive and the Company.
Any
counsel appointed by any insurance carrier for the Company shall be deemed
acceptable. It is the intent of the parties that the obligation imposed by
this
paragraph will survive the termination of this Agreement.
(e) Life
Insurance Benefits.
Provided that (i) the Executive is and remains insurable; (ii) the Executive
is
and remains eligible for coverage under either a group insurance policy
maintained by the Company or its affiliates or an individual insurance policy
in
either case at a cost to the Company no greater than the standard rate, as
determined by the insurance underwriter designated by the Company, based
upon an
individual in good health and such other factors, including, but not limited
to,
age, gender and income; and (iii) the Executive shall do, execute, acknowledge
and deliver, or cause to be done, executed, acknowledged or delivered, all
documents, applications, instruments, assurances or acts (including but not
limited to physical examinations), as may be necessary to obtain such insurance
coverage, the Company shall provide the Executive with life insurance in
an
amount to be determined by the Board.
(f) Other
Benefits.
The
Company shall make available to the Executive any and all other Executive
or
fringe benefits (in accordance with their terms and conditions) which the
Company may make available to its other Executives, including tax filing
preparation services for the first year in an amount not to exceed Five Thousand
Dollars ($5,000).
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6. Reimbursement
of Expenses.
During
the Employment Period, the Company shall pay or reimburse the Executive in
U.S.
dollars, net of any applicable taxes, for the following expenses: (i) rental
in
an annual amount not to exceed One Hundred Fifty-Two Thousand Dollars ($152,000)
and (ii) tuition and applicable fees for the education of dependents at
international schools in China to be chosen by the Executive in an annual
amount
not to exceed Twenty-Three Thousand Three Hundred Thirty-Three Dollars ($23,333)
for each dependent. However, amounts provided for in this paragraph may be
grossed up as required. The Company shall also pay or reimburse the Executive
all reasonable entertainment and other business expenses actually incurred
or
paid by the Executive in the performance of his duties hereunder upon
presentation of expense statements and/or such other supporting information
as
the Company may reasonably require of the Executive.
7. Vacation.
The
Executive shall be entitled to paid vacation during each full calendar year
of
the Employment Period of a duration provided by the Company generally to
its
Executives (and a pro rata portion thereof for any portion of the Employment
Period that is less than a full calendar year); provided,
however,
that no
single vacation may exceed two consecutive weeks in duration.
8. Termination.
The
employment of the Executive hereunder may be terminated prior to the expiration
of the Employment Period in the manner described in this Section 8.
(a) Termination
upon Death.
The
employment of the Executive hereunder shall terminate immediately upon his
death.
(b) Termination
upon Disability.
The
Company shall have the right to terminate this Agreement during the continuance
of any Disability of the Executive, as hereafter defined, upon fifteen (15)
days’ prior notice to the Executive during the continuance of the
Disability.
(c) Termination
by the Company Without Good Cause.
The
Company shall have the right to terminate the Executive’s employment hereunder
without Good Cause (as such term is defined herein) by written notice to
the
Executive.
(d) Termination
by the Company for Good Cause.
The
Company shall have the right to terminate the employment of the Executive
for
Good Cause by written notice to the Executive specifying the particulars
of the
circumstances forming the basis for such Good Cause.
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(e) Voluntary
Resignation by the Executive.
The
Executive shall have the right to voluntarily resign his employment hereunder
for other than Good Reason (as such term is defined herein) by written notice
to
the Company.
(f) Resignation
by the Executive for Good Reason.
The
Executive shall have the right to terminate his employment for Good Reason
by
written notice to the Company specifying the particulars of the circumstances
forming the basis for such Good Reason.
(g) Termination
Date.
The
“Termination
Date”
is
the
date as of which the Executive’s employment with the Company terminates. Any
notice of termination given pursuant to the provisions of this Agreement
shall
specify the Termination Date.
(h) Certain
Definitions.
For
purposes of this Agreement, the following terms shall have the following
meanings:
(i) “Disability”
shall
mean an inability by the Executive to perform a substantial portion of the
Executive’s duties hereunder by reason of physical or mental incapacity or
disability for a total of one hundred twenty (120) days or more in any
consecutive period of three hundred and sixty five (365) days, as determined
by
the Board in its good faith judgment.
(ii) “Good
Cause”
as
used
herein, shall mean (A) the commission of a felony, or a crime involving moral
turpitude, or the commission of any other act or omission involving dishonesty,
disloyalty, or fraud with respect to the Company; (B) conduct tending to
bring
the Company or any of its affiliates into substantial public disgrace or
disrepute; (C) substantial and repeated failure to perform duties as reasonably
directed by the Board; (D) gross negligence or willful misconduct with respect
to the Company or any of its affiliates; or (E) any material misrepresentation
by the Executive under this Agreement; provided,
however,
that
such Good Cause shall not exist unless the Company shall first have provided
the
Executive with written notice specifying in reasonable detail the factors
constituting such Good Cause, as applicable, and such factors shall not have
been cured by the Executive within thirty (30) days after such notice or
such
longer period as may reasonably be necessary to accomplish the
cure.
(iii) “Good
Reason”
means
the occurrence of any of the following events:
(A) the
assignment to the Executive of any duties inconsistent in any material respect
with the Executive’s then position (including status, offices, titles and
reporting relationships), authority, duties or responsibilities, or any other
action or actions by the Company which when taken as a whole results in a
significant diminution in the Executive’s position, authority, duties or
responsibilities, excluding for this purpose any isolated, immaterial and
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the
Executive;
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(B) a
material breach by the Company of one or more provisions of this Agreement,
provided that such Good Reason shall not exist unless the Executive shall
first
have provided the Company with written notice specifying in reasonable detail
the factors constituting such material breach and such material breach shall
not
have been cured by the Company within thirty (30) days after such notice
or such
longer period as may reasonably be necessary to accomplish the
cure;
(C) the
Company requiring the Executive to be primarily based at any location other
than
(i) a location within thirty (30) miles of the Company’s current executive
office location in Beijing, or (ii) a location within thirty (30) miles of
the
centerpoint of Shanghai, except for the requirements of temporary travel
on the
Company’s business; and
(D) any
purported termination by the Company of the Executive’s employment otherwise
than as expressly permitted by this Agreement.
(E) A
Change
in Control whereby:
(i) A
person
(other than a person who is an officer or director of the Company on the
Effective Date), including a group as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, as amended, becomes, or obtains the right
to
become, the beneficial owner of the Company’s securities having fifty one
percent (51%) or more of the combined voting power of then outstanding
securities of the Company;
(ii) The
Company consummates a merger in which it is not the surviving
entity;
(iii) All
or
substantially all of the Company’s assets are sold;
(iv) The
Company’s shareholders approve the dissolution or liquidation of the
Company.
9. Obligations
of Company on Termination or Resignation.
If you
are terminated by the Company without Good Cause, if you resign from the
Company
for Good Reason, you will be entitled to receive as severance (a) the Base
Salary and reimbursement of Expenses contemplated hereunder for a period
of
twelve months, and (b) all Options granted but not yet vested shall immediately
vest and shall be exercisable.
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10. Covenants
of the Executive.
(a) Confidentiality.
(i) The
Executive recognizes that the Executive’s position with the Company is one of
trust and confidence. The Executive acknowledges that, the Company has devoted
substantial time and effort and resources to developing the Company’s business
and clients, and that during the course of the Executive’s employment with the
Company, the Executive will necessarily become acquainted with confidential
information relating to the clients or potential clients (including names,
addresses and telephone numbers) of the Company, and the Company’s investments
or potential investments in and/or financings and/or potential financings
to be
provided to these clients or potential clients, and trade secrets, processes,
methods of operation and other information, which the Company regards as
confidential and in the nature of trade secrets (collectively, “Confidential
Information”).
The
Executive acknowledges and agrees that the Confidential Information is of
incalculable value to the Company and that the Company would suffer damage
if
any of the Confidential Information was improperly disclosed.
(ii) The
Executive recognizes that because of the opportunities and support so provided
to the Executive and because of Executive’s access to the Company’s Confidential
Information, Executive would be in a unique position to divert business from
the
Company and to commit irreparable damage to the Company were Executive to
be
allowed to divulge any of the Confidential Information.
(iii) The
Executive covenants and agrees that the Executive will not, at any time during
or after the termination of the Executive’s relationship with the Company,
regardless of whether termination is initiated by either Executive or the
Company, reveal, divulge, or make known to any person, firm or corporation,
any
Confidential Information made known to the Executive or of which the Executive
has become aware, regardless of whether developed, prepared, devised or
otherwise created in whole or in part by the efforts of the Executive, except
and to the extent that such disclosure is necessary to carry out the Executive’s
duties for the Company. The Executive further covenants and agrees that the
Executive shall retain all Confidential Information in trust for the sole
benefit of the Company, and will not divulge or deliver or show any Confidential
Information to any unauthorized person including, without limitation, any
other
employer of the Executive, and the Executive will not make use thereof in
an
independent business related to the business of the Company; provided,
however,
that
the Executive has no obligation, express or implied, to refrain from using
or
disclosing to others any such knowledge or information which is or hereafter
shall become available to the public other than through disclosure by the
Executive.
(iv) The
Executive agrees that, upon termination of the Executive’s employment with the
Company, for any reason whatsoever, or for no reason, and at any time, the
Executive shall return to the Company all papers, documents and other property
of the Company placed in the Executive’s custody or obtained by the Executive
during the course of the Executive’s employment which relate to Confidential
Information, and the Executive will not retain copies of any such papers,
documents or other property for any purpose whatsoever.
(b) Non-Competition.
The
Company is in the business of processing and market milk, soybean and walnut
products (the "Business"). Executive acknowledges that during his employment
with the Company he will become familiar with trade secrets and other
information relating to the Company and its Business, and that his services
have
been and will be of special, unique and extraordinary value to the Company.
Therefore, Executive agrees that, during the Employment Period, and for one
(1)
year thereafter (collectively, the “Non-Compete Period”), he will not directly
or indirectly own, manage, control, participate in, consult with, render
services for, or in any other manner engage in any business, or as an investor
in or lender to any business (in each case including, without limitation,
on his
own behalf or on behalf of another entity) which competes either directly
or
indirectly with the Company in the Business, in any market in which the Company
is operating, or is considering operating at any given point in time during
the
Employment Period, or as of the end of the Employment Period if the Employment
Period has ended. Nothing in this Section 10(b) will be deemed to prohibit
the
Executive from being a passive owner of less than 5% of the outstanding stock
of
a corporation engaged in a competing business as described above of any class
which is publicly traded, so long as Executive has no direct or indirect
participation in the business of such corporation.
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(c) Non-Solicitation
of Business.
Executive will not, during the Employment Period, or at any time within the
one
(1) year period immediately following his termination from employment,
regardless of whether termination is initiated by Executive or by the Company,
for any reason, solicit or assist any other person to solicit, whether directly
or indirectly, any business (other than for the Company) from any entity:
(i)
into which the Company has invested; (ii) for which the Company has provided
financing; (iii) for which the Company has been engaged to provide any kind
of
services, including but not limited to, advisory services and providing
financial analyses; (iv) that has either invested in, or participated in
a
financing for, a client of the Company; or (v) that has either been solicited
by
the Company to invest in, or participate in a financing for, a client of
the
Company.
(d) Non-Solicitation
of Employees and Independent Contractors.
Executive will not, during the Employment Period, or at any time following
his
termination from employment, regardless of whether termination is initiated
by
Executive or by the Company, for any reason, directly or indirectly (i) induce
or attempt to induce any employee or full-time independent contractor of
the
Company to leave the employ or contracting relationship with the Company,
or in
any way interfere with the relationship between the Company and any employee
or
full-time independent contractor thereof, (ii) solicit for employment or
as an
independent contractor any person who was an employee or full-time independent
contractor of the Company at any time during the Employment Period, or (iii)
induce or attempt to induce any customer, supplier or other business relation
of
the Company to cease doing business with the Company or in any way interfere
with the relationship between any such customer, supplier or other business
relation and the Company.
(e) Work
Product.
The
Executive agrees that all innovations, inventions, improvements, developments,
methods, designs, analyses, drawings, reports, and all similar or related
information which relate to the Company’s Business, or any business which the
Company has taken significant action to pursue, and which are conceived,
developed or made by the Executive during the Employment Period (any of the
foregoing, hereinafter “Work
Product”),
belong to the Company. The Executive will promptly disclose all such Work
Product to the Board and perform all actions reasonably requested by the
Board
(whether during or after the Employment Period) to establish and confirm
such
ownership (including, without limitation, assignments, consents, powers of
attorney and other instruments).
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(f) No
Conflict.
The
Executive represents and warrants to the Company that the Executive is not
a
party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity or any other agreement
which would prevent or limit his ability to enter into this Agreement or
perform
his obligations hereunder.
(g) Enforcement.
(i) The
Executive acknowledges that the Company will suffer substantial and irreparable
damages not readily ascertainable or compensable in terms of money in the
event
of the breach of any of the Executive’s obligations under Sections 10(a) through
(e) hereof. The Executive therefore agrees that the provisions of Sections
10(a)
through (e) shall be construed as an agreement independent of the other
provisions of this Agreement and any other agreement and that the Company,
in
addition to any other remedies (including damages) provided by law, shall
have
the right and remedy to have such provisions specifically enforced by any
court
having equity jurisdiction thereof. Accordingly, in addition to all of the
Company’s rights and remedies under this Agreement, including but not limited
to, the right to the recovery of monetary damages from the Executive, the
Company shall be entitled, and the Executive hereby consents, to the issuance
by
any court of competent jurisdiction of temporary, preliminary and permanent
injunctions, without bond, enjoining any such breach or threatened breach
by the
Executive. The Executive’s sole remedy in the event of any injunction or order
shall be dissolution thereof, if warranted, upon duly held hearing in a court
of
competent jurisdiction. The Executive hereby waives all claims for damages
for
wrongful issuance of any such injunction.
The
rights and remedies set forth in this Section 10(f) shall be in addition
to, and
not in lieu of, any other rights and remedies available to the Company under
law
or equity.
(ii) If
at any
time any of the provisions of this Section 10 shall be determined to be invalid
or unenforceable, by reason of being vague or unreasonable as to area, duration
or scope of activity, this Section 10 shall be considered divisible and shall
become and be immediately amended to only such area, duration and scope of
activity as shall be determined to be reasonable and enforceable by the court
or
other body having jurisdiction over the matter, and the Executive agrees
that
this Section 10, as so amended, shall be valid and binding as though any
invalid
or unenforceable provision had not been included herein.
(iii) The
Executive agrees to cooperate with the Company, during the Employment Period
and
thereafter (including following the Executive’s termination of employment for
any reason), by making himself reasonably available to testify on behalf
of the
Company or any of its affiliates in any action, suit, or proceeding, whether
civil, criminal, administrative, or investigative, and to assist the Company,
or
any affiliate, in any such action, suit, or proceeding, by providing information
and meeting and consulting with the Company’s Board or its representatives or
counsel, or representatives or counsel to the Company, or any affiliate as
reasonably requested; provided,
however,
that
the same does not materially interfere with his then current professional
activities and is not contrary to the best interests of the Executive. The
Company agrees to reimburse the Executive, on an after-tax basis, for all
expenses actually incurred in connection with his provision of testimony
or
assistance.
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11. Indemnification.
To the
fullest extent permitted by law, including the Utah Revised Business Corporation
Act and other relevant statutes, the Company will indemnify and hold harmless
Executive against any actual action, suit or proceeding, whether civil,
criminal, or administrative, arising by reason of Executive’s status as a
director, officer, employee and/or agent of the Company or any of its affiliates
during Executive’s employment or Executive’s status, if any, as a trustee or
other fiduciary of any employee benefit plan sponsored by the Company or
its
affiliates. In addition, to the fullest extent permitted by law, the Company
will pay or reimburse Executive for any costs and expenses, including reasonable
attorney’s fees, Executive incurs arising from any claim as to which the Company
is providing indemnification hereunder.
12. Insurance.
The
Company may, for its own benefit, in it sole discretion, maintain “key-man” life
and disability insurance policies covering the Executive. The Executive shall
cooperate with the Company and provide such information or other assistance
as
the Company may reasonably request in connection with the Company’s obtaining
and maintaining such policies.
13. Severability.
Should
any provision of this Agreement be held, by a court of competent jurisdiction,
to be invalid or unenforceable, such invalidity or unenforceability shall
not
render the entire Agreement invalid or unenforceable, and this Agreement
and
each other provision hereof shall be enforceable and valid to the fullest
extent
permitted by law.
14. Successors
and Assigns.
(a) This
Agreement and all rights under this Agreement are personal to the Executive
and
shall not be assignable other than by will or the laws of descent. All of
the
Executive’s rights under the Agreement shall inure to the benefit of his heirs,
personal representatives, designees or other legal representatives, as the
case
may be.
(b) This
Agreement shall inure to the benefit of and be binding upon the Company and
its
successors and assigns. Any entity succeeding to the business of the Company
by
merger, purchase, consolidation or otherwise shall assume by contract or
operation of law the obligations of the Company under this
Agreement.
15. Governing
Law.
This
Agreement shall be construed in accordance with and governed by the laws
of the
State of New York, without regard to the conflicts of laws rules thereof.
16. Arbitration.
Any
controversy or claim arising out of or relating to this Agreement or the
breach
hereof shall be settled by Arbitration by and in accordance with the Commercial
Rules of the American Arbitration Association then in effect in accordance
with
the laws of the State of New York, and the judgment upon any award rendered
by
the arbitrator or arbitrators may be entered in any court having competent
jurisdiction thereof. The award of the Arbitrator shall be final, non-appealable
and binding upon the parties hereto and their respective successors and
permitted assigns
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17. Notices.
All
notices, requests and demands given to or made upon the respective parties
hereto shall be deemed to have been given or made three business days after
the
date of mailing when mailed by registered or certified mail, postage prepaid,
or
on the date of delivery if delivered by hand, or one business day after the
date
of delivery by Federal Express or other reputable overnight delivery service,
addressed to the parties at their addresses set forth on Schedule
B
hereto,
or to such other addresses furnished by notice given in accordance with this
Section 17.
18. Complete
Understanding.
Except
as expressly provided below, this Agreement supersedes any prior contracts,
understandings, discussions and agreements relating to employment between
the
Executive and the Company and constitutes the complete understanding between
the
parties with respect to the subject matter hereof. No statement, representation,
warranty or covenant has been made by either party with respect to the subject
matter hereof except as expressly set forth herein.
19. Modification;
Waiver.
(a) This
Agreement may be amended or waived if, and only if, such amendment or waiver
is
in writing and signed, in the case of an amendment, by the Company and the
Executive or in the case of a waiver, by the party against whom the waiver
is to
be effective. Any such waiver shall be effective only to the extent specifically
set forth in such writing.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
20. Headings
and Word Meanings.
Headings
and titles in this Agreement are for convenience of reference only and shall
not
control the construction or interpretation of any provisions hereof. The
words
“herein,” “hereof,” “hereunder” and words of similar import, when used anywhere
in this Agreement, refer to this Agreement as a whole and not merely to a
subdivision in which such words appear, unless the context otherwise requires.
The singular shall include the plural unless the context otherwise requires.
21. Counterparts.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by the other party
hereto.
[SIGNATURE
PAGE FOLLOWS]
11
IN
WITNESS WHEREOF,
the
Company has caused this Agreement to be duly executed in its corporate name
by
one of its officers duly authorized to enter into and execute this Agreement,
and the Executive has manually signed his
name hereto, all as of the day and year first
above written.
| AMERICAN DAIRY, INC. | |||
| /s/ Xxx Xxx | /s/ Leng You Bin | ||
|
Witness - Xxx Xxx |
Name: Leng You Bin |
||
| Title: Chief Executive Officer | |||
| /s/ Xxxx X. Tu | /s/ Xxxxxxxx X. Xxxx | ||
|
Witness - Xxxx X. Tu |
Name: Xxxxxxxx X. Xxxx |
||
12
SCHEDULE
A
STOCK
OPTIONS
|
Grant
Date *
|
Number
of Shares Issuable Upon Exercise
|
Exercise
Price
|
|
6
month anniversary of the
Commencement
Date
|
80,000
|
$12.00
|
|
18
month anniversary of the
Commencement
Date
|
50,000
|
$16.00
|
|
30
month anniversary of the
Commencement
Date
|
60,000
|
$22.00
|
|
42
month anniversary of the
Commencement
Date
|
80,000
|
$30.00
|
*
The options shall vest on the 12 month anniversary of their respective Grant
Dates, conditioned upon the Executive’s continued employment by the Company as
of each such Vesting Date.
13
