EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of this
10th day
of April, 2009, (the “Effective Date”), between American Oriental
Bioengineering, Inc., a Nevada corporation with its principal place of business
located at Great International Exchange Square, 25/F Mid Section, 0
Xxxxx Xx., Xxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxxxxxx, XXX 000000 (the “Company”), and
Xxxxxxxx Xx, xxxxxxxx xx Xxxxxxx Xxxxxxxx, Xxxxxx, Xxxxx (the
“Executive”).
WHEREAS,
the business of the Company and its affiliates consists of the development and
production of bioengineered products and traditional Chinese medicinal products
that combine modern biotechnology and traditional Chinese medical technology,
and activities incidental thereto (the “Business”);
WHEREAS,
the Company has expended considerable time, effort and resources in the
development of certain Confidential Information, as defined in paragraph 10
herein below, which must be maintained as confidential in order to ensure the
success of the Business;
WHEREAS,
prior to the Effective Date, the Executive has been employed by the Company in
the position of, and has been performing the services required of, Director and
Chief Accounting Officer of the Company;
WHEREAS,
the Executive and the Company desire to memorialize the terms and conditions of
the Executive’s employment by the Company in the position of Director
and Chief Accounting Officer; and
WHEREAS,
the Executive has had, prior to the Effective Date, and will continue to have,
as of the Effective Date, access to such Confidential Information, as defined in
paragraph 10 herein below.
NOW,
THEREFORE, in consideration of the covenants and promises contained herein, the
compensation and benefits received by the Executive from the Company, and the
access given the Executive to the aforesaid Confidential Information, as defined
in paragraph 10 herein below, and for other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the Company and the
Executive agree as follows:
1. EMPLOYMENT
PERIOD. The Company offers to employ the Executive, and the Executive agrees to
be employed by the Company, in accordance with the terms and subject to the
conditions of this Agreement commencing on the Effective Date and terminating on
the first anniversary of the Effective Date (the “Scheduled Termination Date”),
unless terminated prior thereto in accordance with the provisions of paragraph 9
herein below. The term of this Agreement shall be automatically renewed for
successive one (1) year terms, unless either party gives the other party written
notice of its intention not to renew the Agreement no later than 90 days prior
to the expiration of the then current term. A determination by the
Company not to renew this Agreement without “Company Cause” shall be deemed a
termination of employment for purposes of paragraph 9(d) and the terms thereof
shall apply.
2. POSITION
AND DUTIES. During the term of the Executive’s employment hereunder, the
Executive will serve in the position, and assume duties and responsibilities
consistent with the position of Director and Chief Accounting Officer unless and
until otherwise instructed by the Company. The Executive agrees to devote
substantially all of his working time, skill, energy and best business efforts
during the term of his employment with the Company. The Executive covenants and
agrees that for so long as he is employed by the Company, the Executive shall
inform the Company of each and every business opportunity related to the
business of the Company of which the Executive becomes aware, and that the
Executive will not, directly or indirectly, exploit any such opportunity for the
Executive’s own account, nor will the Executive render any services to any other
person or business, acquire any interest of any type in any other business or
engage in any activities that conflict with the Company’s best interests or
which is in competition with the Company. The Executive affirms that
no obligation exists between the Executive and any other entity which would
prevent or impede the Executive’s immediate and full performance of every
obligation of this Agreement.
3. HOURS
OF WORK. The Executive’s normal days and hours of work shall coincide with the
Company’s regular business hours. The nature of the Executive’s employment with
the Company requires flexibility in the days and hours that the Executive must
work, and may necessitate that the Executive work on other or additional days
and hours. The Company reserves the right to require the Executive, and the
Executive agrees, to work during other or further days or hours than the
Company’s normal business hours.
4. LOCATION.
The principal location of the Executive’s employment with Company shall be the
Company’s office located at No. 4018 Jintian Road, Xxxxxx Xxxxx, 00X Xxxxx X00,
Xxxxxx, Xxxxxxxx Xxxxxxxx, XXX 000000. The Company may, in its sole discretion,
require the Executive to travel to and reside in, on a temporary, indefinite or
permanent basis, in any other location throughout the world in which the Company
or any of its affiliates has offices.
5. BASE
SALARY. In consideration of the Executive’s services under this Agreement, the
Company shall pay or cause to pay, and the Executive agrees to accept, during
the one year period following the Effective Date (the “First Year”), an annual
base salary of US$80,000, less all applicable
taxes and other appropriate deductions, paid in accordance with the Company’s
standard payroll practices. Following the First Year, the Executive’s
base salary shall be reviewed annually by the Compensation Committee of the
Board of Directors of the Company. The decision to increase or decrease the
Executive’s base salary and the amount of any such increase or decrease are
within the sole discretion of the Board of Directors. Nothing contained in this
paragraph 5 is intended to be, or should be construed as, a promise or guarantee
by the Company to increase the Executive’s base salary. The Company
reserves the right, in its sole discretion, and the Executive hereby
acknowledges the Company’s right, to make no such payments or make reduced
payments in connection with any periods of unauthorized or unjustified absence
from work or in the event that the Executive is unavailable or unable to perform
the Executive’s duties for the Company without adequate justification, as
determined by the Company in its sole discretion.
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6. BONUS
COMPENSATION. During the term hereof, the Executive shall have the
opportunity to earn an annual performance based bonus equal to up to US$20,000
based upon the Company’s attainment of certain annual net income targets, as set
by the Board of Directors in its sole discretion on an annual
basis. Such bonus amount may be increased in the event the annual net
income target is exceeded, however, shall not exceed 300% of the annual
performance based bonus. The Compensation Committee may, from time to time, also
pay such other bonus or bonuses to the Executive as the Compensation Committee,
in its sole discretion, deems appropriate. In order to receive the
annual performance based bonus, the Executive must continue to be employed by
the Company through the end of the period with respect to which the annual
performance bonus has been earned. The annual performance based bonus
will be paid to the Executive at such time as bonuses for the applicable period
are regularly paid to senior executives of the Company.
7. STOCK
AWARDS AND STOCK OPTIONS. The Executive shall receive 51,380 shares of the
Company's common stock and 33,169 stock options for services to be rendered
during the Term. The exercise price of the stock options is at $4.01
per share, as determined by the Compensation Committee of the Board, equal to
the average closing price of the Company's common stock on the five trading days
immediately prior to and including April 10, 2009, as reported on Yahoo Finance,
on the New York Stock Exchange, or any such securities exchange on which the
Company’s common stock is listed or quoted for trading, on April 10, 2009, the
date of grant (both the "Stock Awards" and the “Stock Options”). The
Stock Awards and Stock Options shall vest in five equal installments on each
April 10 of the first, second, third, fourth and fifth anniversary of the grant,
subject to the Executive’s continued employment with the Company on each vesting
date, and further to subject to accelerated vesting under the applicable
incentive plan, the applicable grant agreement and the terms of this
Agreement. The Stock Awards and Stock Options shall be granted under
the Company’s 2006 Equity Incentive Plan and pursuant to the terms of the
Company’s standard form of stock award and stock option agreement approved by
the Board of Directors. The Compensation Committee shall determine,
on an annual basis, the number of Stock Awards and Stock Options to be granted
to the Executive for each renewal period.
8. REIMBURSEMENT
OF EXPENSES. During the term of this Agreement, in accordance with the Company’s
expense reimbursement policy, the Executive shall be entitled to reimbursement
for reasonable expenses (including, without limitation, reasonable travel
expenses) paid or incurred by him, in connection with and related to the
performance of his duties and responsibilities hereunder for the Company. All
requests by Executive for reimbursement for such expenses must be supported by
appropriate invoices, vouchers, receipts or such other supporting documentation
in such form and containing such information as the Company may from time to
time require, evidencing that the Executive, in fact, incurred or paid said
expenses.
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9. TERMINATION.
a. DEATH
OR RESIGNATION. If the Executive dies or resigns during the term of this
Agreement, this Agreement shall automatically terminate on the date of the
Executive’s death or resignation and, following the date of the Executive’s
death or resignation, the Company shall have no further obligations or liability
to the Executive or his heirs, administrators or executors with respect to
compensation and benefits thereafter, except for the obligation to pay the
Executive (i) any earned but unpaid base salary through the Executive’s date of
death or resignation, (ii) for any unused accrued and unforfeited vacation, and
(iii) subject to paragraph 8 hereinabove, for any unreimbursed business expenses
incurred by the Executive prior to his death or resignation. The
Company shall deduct, from all payments made hereunder, all applicable taxes,
including income tax, FICA and FUTA, and other appropriate
deductions.
b. DISABILITY.
At any time during the term of this Agreement, the Company may terminate this
Agreement and the Executive’s employment with the Company because of the
Executive’s “Disability,” by written notice to the Executive. For purposes of
this Agreement, “Disability” shall mean, if at the end of any calendar month
during the term of this Agreement, the Executive, as a result of mental or
physical illness or injury, is or has been unable to perform his duties under
this Agreement, with or without reasonable accommodation, for (i) the four (4)
preceding consecutive calendar months, or (ii) any 180 days in the previous
twelve (12) months. If this Agreement is terminated because of the Executive’s
“Disability,” the Company shall have no further obligations or liability to the
Executive or his heirs, administrators or Executors with respect to compensation
and benefits thereafter, except for the obligation to pay the Executive (x) any
earned but unpaid base salary through the date of termination for “Disability”,
at the rate then in effect, (y) for any unused accrued and unforfeited vacation,
and (z) subject to paragraph 8 hereinabove, for any unreimbursed business
expenses incurred by the Executive prior to his last date of employment with the
Company. The Company shall deduct, from all payments made hereunder, all
applicable taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
c. “CAUSE.”
At any time during the term of this Agreement, the Company may terminate this
Agreement and the Executive’s employment with the Company, at any time, for
“Company Cause.” For purposes of this Agreement, “COMPANY CAUSE” shall mean: (i)
the good faith determination by the Company’s Board of Directors that there has
been continued neglect by the Executive of his duties hereunder, or (ii) willful
misconduct on the Executive’s part in connection with the performance of his
duties hereunder, PROVIDED HOWEVER, that the Executive shall have been given one
(1) written notice of such determination by the Company’s Board of Directors of
continued neglect or willful misconduct and thereafter the Executive shall not
have cured such neglect or willful misconduct to the satisfaction of the
Company’s Board of Directors within fifteen (15) days of the Executive’s receipt
of such written notice, (iii) the Executive is convicted of or pleads guilty or
no contest to a felony or other conduct involving moral turpitude. If this
Agreement and the Executive’s employment is terminated for “Company Cause,”
following the Executive’s last date of employment with the Company, the Company
shall have no further obligations or liability to the Executive or his heirs,
administrators or Executors with respect to compensation and benefits
thereafter, except for the obligation to pay the Executive (x) any earned but
unpaid base salary through the Executive’s last date of employment, at the rate
then in effect, (y) for any unused accrued and unforfeited vacation, and (z)
subject to paragraph 8 hereinabove, for any unreimbursed business expenses
incurred by the Executive prior to the last date of employment with the Company.
The Company shall deduct, from all payments made hereunder, all applicable
taxes, including income tax, FICA and FUTA, and other appropriate
deductions.
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d. TERMINATION
BY THE CHIEF EXECUTIVE OFFICER. At any time during the term of this Agreement,
the Chief Executive Officer of the Company, in his sole discretion, may
terminate this Agreement and the Executive’s employment with the Company without
“Company Cause” by delivering to the Executive written notice. If this Agreement
and the Executive’s employment with the Company is terminated without “Company
Cause,” following the Executive’s last date of employment with the Company, the
Company shall have no further obligations or liability to the Executive or his
heirs, administrators or executors with respect to compensation and benefits
thereafter, except for the obligation to pay the Executive (i) any earned but
unpaid base salary through the Executive’s last date of employment, at the rate
then in effect, (ii) for any unused accrued and unforfeited vacation, (iii) his
base salary in effect at the time of his termination in accordance with
paragraph 5 hereinabove through the Scheduled Termination Date or renewal
period, as the case may be, and (iv) subject to paragraph 8 hereinabove, for any
unreimbursed business expenses incurred by the Executive prior to his last date
of employment with the Company. The Company shall deduct, from all payments made
hereunder, all applicable taxes, including income tax, FICA and FUTA, and other
appropriate deductions.
10. CONFIDENTIAL
INFORMATION.
a. The
Executive expressly acknowledges that, in the performance of his duties and
responsibilities relating to his employment with the Company, he has been
exposed and will continue to be exposed to the trade secrets, business and/or
financial secrets and confidential and proprietary information of the Company,
its affiliates and/or its clients or customers (“Confidential Information”). The
term “Confidential Information” means information or material that has actual or
potential commercial value to the Company, its affiliates and/or its clients or
customers and is not generally known to and is not readily ascertainable by
proper means to persons outside the Company, its affiliates and/or its clients
or customers, and includes, without limitation, the following, whether or not
expressed in a document or medium, regardless of the form in which it is
communicated, whether or not such information is on the Company’s forms, memos,
computer disc or tape, or otherwise, whether or not such information is in
written or verbal form, and whether or not marked “trade secret” or
“confidential” or any similar legend: (i) sales information, (ii)
operations information, (iii) financial information, (iv) administrative
information, (v) research information, (vi) customer information, (vii) supplier
information, and (viii) any other information concerning the Company, its
business, its properties or its affairs that the Company deems to be
confidential or that is confidential according to industry
practices.
b. Except
as authorized in writing by the Board of Directors, during the term of this
Agreement, any renewal periods, and thereafter until such time as any such
Confidential Information becomes generally known to and readily ascertainable by
proper means to persons outside the Company, its affiliates and/or its clients
or customers, the Executive agrees to keep strictly confidential and not use or
disclose, cause to be used or disclosed, or permit to be used or disclosed, to
any person or entity and/or for his personal benefit or the benefit to any other
person or entity, any Confidential Information.
c. The
Executive agrees that upon termination of his employment with the Company for
any reason, he will promptly return to the Company all Confidential Information
within his possession or within his power to control, including, without
limitation all copies of such Confidential Information, all abstracts of such
Confidential Information and any other information containing such Confidential
Information in whole or in part.
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d. The
Executive affirms that he did not and does not possess, and has not relied and
will not rely upon the protected trade secrets or confidential or proprietary
information of the Executive’s prior employer(s) in providing services to the
Company.
11. OWNERSHIP
AND ASSIGNMENT OF INVENTIONS.
a. The
Executive acknowledges that, in connection with his duties and responsibilities
relating to his employment with the Company, the Executive and/or other
employees of the Company working with the Executive, without the Executive or
under the Executive’s supervision, may have created, conceived of, made,
prepared, worked on or contributed to, and/or may create, conceive of, make,
prepare, work on or contribute to, the creation of, or may have been or may be
asked by the Company and/or its affiliates or customers to create, conceive of,
make, prepare, work on or contribute to the creation of, without limitation,
lists, business diaries, business address books, documentation, ideas, concepts,
inventions, designs, works of authorship, computer programs, audio/visual works,
developments, proposals, works for hire or other materials (“Inventions”). To
the extent that any such Inventions related or relate to any actual or
reasonably anticipated business of the Company or any of its affiliates or
customers, or falls within, is suggested by or results from any tasks assigned
to the Executive for or on behalf of the Company or any of its affiliates or
customers, the Executive expressly acknowledges that all of his activities and
efforts relating to any Inventions, whether or not performed during the
Executive’s or the Company’s regular business hours, are within the scope of the
Executive’s employment with the Company and that the Company owns all right,
title and interest in and to all Inventions, including, to the extent that they
exist, all intellectual property rights thereto, including, without limitation,
copyrights, patents and trademarks in and to all Inventions. The Executive also
acknowledges and agrees that the Company owns and is entitled to sole ownership
of all rights and proceeds to all Inventions.
b. The
Executive expressly acknowledges and agrees to assign to the Company, and hereby
assigns to the Company, all of the Executive’s right, title and interest in and
to all Inventions, including, to the extent they exist, all intellectual
property rights thereto, including, without limitation, copyrights, patents and
trademarks in and to all Inventions.
c. In
connection with all Inventions, the Executive agrees to disclose any Invention
promptly to the Company and to no other person or entity. The Executive further
agrees to execute promptly, at the Company’s request, specific written
assignments of the Executive’s right, title and interest in any Inventions, and
do anything else reasonably necessary to enable the Company to secure or obtain
a copyright, patent, trademark or other form of protection in or for any
Invention in the United States or other countries. The Executive further agrees
that the Company is not required to designate the Executive as an author of or
contributor to any Invention or to secure the Executive’s permission to change
or otherwise alter any Invention.
d. The
Executive acknowledges that all rights, waivers, releases and/or assignments
granted herein and made by the Executive are freely assignable by the Company
and are made for the benefit of the Company and its affiliates, subsidiaries,
licensees, successors and assigns.
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e. The
Executive agrees to waive, and hereby does waive, for the benefit of all
persons, any and all right, title and interest in the nature of “moral rights”
or “droit moral” granted to the Executive in any country in the
world.
12. NON-COMPETITION
AND NON-SOLICITATION. Because of the nature of the Company’s Business, and
because, as a result of his employment with the Company, the Executive has been
and will continue to be exposed to Confidential Information, the Executive
acknowledges that the Company would sustain grievous harm in the event that he
were to disclose Confidential Information, engage in business activities that
compete with the Business, appropriate or divert business or customers of the
Company or its affiliates and/or induce employees or consultants of the Company
or its affiliates to leave the employment of the Company or its affiliates. The
Executive acknowledges that the Company has a legitimate business interest in
protecting itself from the aforementioned harm and in the protection and
maintenance of the Confidential Information and of the good will and customer
relationships of the Company and its affiliates. Therefore, the Executive hereby
agrees and covenants to be bound by the non-competition and non-solicitation
restrictions set forth herein below, which restrictions the Executive agrees and
acknowledges are reasonable and necessary and do not impose undue hardship or
burdens on the Executive.
a. The
Executive agrees that, during his employment with the Company and for a period
of three (3) years following the termination of his employment with the Company,
he and his affiliates shall not directly or indirectly own, manage, operate,
control, be employed by, consult for, be a shareholder of, be an officer of,
participate in, contract with or be connected in any capacity or any manner with
any person or entity whose business activities directly or indirectly (whether
through related persons, entities or otherwise) compete with the Business
anywhere in the United States, Canada and the People’s Republic of China, where
the Company or its affiliates is engaged in the Business, PROVIDED HOWEVER, that
the Executive shall not be prevented from owning an interest in a publicly
traded company so long as the fair market value of such interest at the date of
acquisition is less than US$100,000.
b. The
Executive agrees that during the period of his employment with the Company and
for a period of three (3) years following the termination of his employment with
the Company, for any reason, he will not, within the United States, Canada and
the People’s Republic of China, where the Company or its affiliates is engaged
in the Business, directly or indirectly recruit, induce, divert, supervise,
employ, manage, hire or entice, or cause to be recruited, induced, diverted,
supervised, employed, managed, hired or enticed, any employee, consultant or
independent contractor of the Company or its affiliates to leave or terminate
the employment or other relationship thereof, for any reason.
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c. The
Executive agrees that during the period of his employment with the Company and
for a period of three (3) years following the termination of his employment with
the Company, he will not, within the United States, Canada and the People’s
Republic of China, where the Company or its affiliates is engaged in the
Business, directly or indirectly appropriate, call on, induce, divert or
solicit, or assist another to appropriate, call on, induce, divert or solicit
any actual or potential business or customer away from the Company or its
affiliates, or attempt to do any of the foregoing, or otherwise induce or
attempt to induce any actual or potential business or customer of the Company or
its affiliates, to terminate or adversely modify its relationship with the
Company or its affiliates, or to enter into a relationship with or conduct
business with the Company or its affiliates, which actual or potential business
or customer the Executive was involved with or had a relationship with or whose
identity became known to the Executive in connection with the Executive’s
employment with the Company.
d. If
any of the restrictive covenants set forth in paragraphs 12(a), (b) and (c) of
this Agreement is held to be invalid, illegal or unenforceable (in whole or in
part), such restrictive covenant shall be deemed modified to the extent, but
only to the extent, of such invalidity, illegality or unenforceability, and a
court of competent jurisdiction shall have the power to modify, any such
restrictive covenant to the extent necessary to render such provision
enforceable, and the remaining restrictive covenant shall not be affected
thereby.
e. In
the event of a violation of any of the restrictive covenants set forth in
paragraphs 12(a), (b) and (c) of this Agreement, if the Executive is prevented
by a court or arbitrator from committing any further violation, whether by a
temporary restraining order, injunction or otherwise, the time periods set forth
in paragraphs 12(a), (b) and (c) of this Agreement shall be computed by
commencing the periods on the date of the applicable court or arbitrators’ order
and continuing them from that date for the full period provided.
f. The
Executive shall have the right to request a waiver of all or part of the
restrictive covenants contained in paragraphs 12(a), (b) and (c) of this
Agreement by providing the Company with a written request for such a waiver that
contains all relevant details. The Company may, in its sole discretion, waive
all or part of the restrictive covenants contained in paragraphs 12(a), (b) and
(c) of this Agreement on such terms and conditions, and to such extent, as it,
in its sole discretion, deems appropriate. Such waiver must be in
writing.
g. The
parties acknowledge that this Agreement would not have been entered into, that
the benefits described in paragraphs 5, 6 and 7 would not have been promised to
the Executive by the Company, in the absence of the Executive’s covenants and
promises set forth in paragraphs 12(a), (b) and (c) of this
Agreement.
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13. DISPUTE
RESOLUTION. The Executive and the Company agree that any dispute or claim,
whether based on contract, tort, discrimination, retaliation, or otherwise,
relating to, arising from, or connected in any manner with this Agreement or
with the Executive’s employment with Company, unless otherwise agreed in a
writing signed by both parties, shall be resolved exclusively through final and
binding arbitration under the auspices of the Hong Kong Chamber of Commerce
(“HKCC”) in accordance with the commercial arbitration rules and supplementary
procedures for international commercial arbitration of the HKCC. The arbitration
shall be held in Hong Kong. There shall be three arbitrators: one arbitrator
shall be chosen by each party to the dispute and those two arbitrators shall
choose the third arbitrator. Each party shall cooperate with the other in making
full disclosure of and providing complete access to all information and
documents requested by the other party in connection with the arbitration
proceedings. Arbitration shall be the sole, binding, exclusive and final remedy
for resolving any dispute between the parties. The arbitrators shall have
jurisdiction to determine any claim, including the arbitrability of any claim,
submitted to them. The arbitrators may grant any relief authorized by law for
any properly established claim. Either party, before or during any arbitration,
may apply to a court having jurisdiction for a restraining order or injunction
where such relief is necessary to protect its interests. The
interpretation and enforceability of this paragraph of this Agreement shall be
governed and construed in accordance with the United States Federal Arbitration
Act, 9. U.S.C. ss.1, ET SEQ. More specifically, the parties agree to submit to
binding arbitration any claims for unpaid wages or benefits, or for alleged
discrimination, harassment, or retaliation, arising under Title VII of the Civil
Rights Act of 1964, the Equal Pay Act, the National Labor Relations Act, the Age
Discrimination in Employment Act, the Americans With Disabilities Act, the
Executive Retirement Income Security Act, the Civil Rights of 1991, the Family
and Medical Leave Act, the Fair Labor Standards Act, Sections 1981 through 1988
of Title 42 of the United States Code, COBRA, and any other federal, state, or
local law, regulation, or ordinance, and any common law claims, claims for
breach of contract, or claims for declaratory relief. The Executive acknowledges
that the purpose and effect of this paragraph is solely to elect private
arbitration in lieu of any judicial proceeding he might otherwise have available
to his in the event of an employment-related dispute between his and the
Company. Therefore, the Executive hereby waives his right to have any such
employment-related dispute heard by a court or jury, as the case may be, and
agrees that his exclusive procedure to redress any employment-related claims
will be arbitration. Company shall pay the arbitration costs changed by HKCC
when required to make this section fully enforceable in respect to all
claims.
14. MISCELLANEOUS.
a. Telephones,
stationery, postage, e-mail, the internet and other resources made available to
the Executive by the Company, are solely for the furtherance of the Company’s
business.
b. All
issues concerning, relating to or arising out of this Agreement and from the
Executive’s employment by the Company, including, without limitation, the
construction and interpretation of this Agreement, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to that State’s principles of conflicts of law.
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c. The
Executive and the Company agree that any provision of this Agreement deemed
unenforceable or invalid may be reformed to permit enforcement of the
objectionable provision to the fullest permissible extent. Any provision of this
Agreement deemed unenforceable after modification shall be deemed stricken from
this Agreement, with the remainder of the Agreement being given its full force
and effect.
d. The
Company shall be entitled to equitable relief, including injunctive relief and
specific performance as against the Executive, for the Executive’s threatened or
actual breach of paragraphs 10, 11 or 12 of this Agreement, as money damages for
a breach thereof would be incapable of precise estimation, uncertain, and an
insufficient remedy for an actual or threatened breach of paragraphs 10, 11 or
12 of this Agreement. The Executive and the Company agree that any pursuit of
equitable relief in respect of paragraphs 10, 11 or 12 of this Agreement shall
have no effect whatsoever regarding the continued viability and enforceability
of paragraph 13 of this Agreement.
e. Any
waiver or inaction by the Company for any breach of this Agreement shall not be
deemed a waiver of any subsequent breach of this Agreement.
f. The
Executive and the Company independently have made all inquiries regarding the
qualifications and business affairs of the other which either party deems
necessary. The Executive affirms that he fully understands this Agreement’s
meaning and legally binding effect. Each party has participated fully and
equally in the negotiation and drafting of this Agreement. Each party assumes
the risk of any misrepresentation or mistaken understanding or belief relied
upon by his or it in entering into this Agreement.
g. The
Company and the Executive agree that the Executive’s obligations to the Company
during the Executive’s employment with the Company, as well as any other
obligation of the Executive under this Agreement, may be assigned to any
successor in interest to the Company or any division or affiliate of the Company
in its sole discretion and without additional consideration or prior notice to
the Executive, but that nothing requires the Company to do so. The Executive’s
obligations under this Agreement are personal in nature and may not be assigned
by the Executive to any other person or entity.
h. The
Company and the Executive acknowledge and agree that future alterations to the
Executive’s work hours, working title, management or supervisory
responsibilities, number of subordinate employees, sales or promotional budgets,
reporting relationships within the Company or with businesses affiliated with
the Company, management responsibilities or duties, or similar changes or
alterations may occur periodically during the Executive’s employment with the
Company. The Company and the Executive agree that the Company, in its sole
discretion, may implement such alterations or adjustments for any or no reason
and that any such action shall not constitute a breach of this Agreement so long
as the Company continues to perform its remaining obligations as provided by
this Agreement.
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i. This
instrument constitutes the entire Agreement between the parties regarding its
subject matter. When signed by all parties, this Agreement supersedes and
nullifies all prior or contemporaneous conversations, negotiations, or
agreements, oral and written, regarding the subject matter of this Agreement. In
any future construction of this Agreement, this Agreement should be given its
plain meaning. This Agreement may only be amended only by a writing signed by
the Company and the Executive.
j. Notwithstanding
the termination of this Agreement and of the Executive’s employment with the
Company for any reason, paragraphs 10, 11 and 12 of this Agreement
shall continue in full force and effect in accordance with their terms following
such termination.
k. This
Agreement may be executed in counterparts, a counterpart transmitted via
facsimile, and all executed counterparts, when taken together, shall constitute
sufficient proof of the parties’ entry into this Agreement. The parties agree to
execute any further or future documents which may be necessary to allow the full
performance of this Agreement. This Agreement contains headings for ease of
reference. The headings have no independent meaning.
THE
EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO THIS AGREEMENT
AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION THEREOF. THIS
AGREEMENT IS EFFECTIVE UPON THE EXECUTION OF THIS AGREEMENT BY BOTH
PARTIES.
UNDERSTOOD,
AGREED, AND ACCEPTED:
|
XXXXXXXX
XX
|
AMERICAN
ORIENTAL
BIOENGINEERING,
INC.
|
|||
|
/s/
XXXXXXXX
XX
|
By:
|
/s/ XXXX
XXX
|
||
|
Name:
XXXXXXXX
XX
|
Name:
XXXX XXX
|
|||
|
|
Title:
Chairman and Chief Executive Officer
|
|||
| Date: April 10, 2009 | Date: April 10, 2009 |
11
