EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT is made and entered into as of the 17th day of
December, 2009 (the “Agreement”), by and
between CHINA INFRASTRUCTURE CONSTRUCTION CORPORATION, a Colorado corporation
(the “Company”), having its
principal place of business at C915 Jia Hao International Business Center, 116
Zizhuyuan Road Xxxxxx Xxxxxxxx, Xxxxxxx, Xxxxx 000000, and (the “Employee”) Yiru Shi,
with an address at 0000 Xxxxx Xxxxxxxx Xxx. Xxxxxxx Xxxxx, XX 00000
(collectively the “Parties”).
WITNESSETH:
WHEREAS,
Employee has represented that she has the experience, background and expertise
necessary to enable her 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 common stock with no par value.
1.4
“Cause” means
(i) conviction of any crime whether or not committed in the course of her
employment by the Company; (ii) Employee’s 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 (iii) the breach of any 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 5.3) is required, 15 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 her physical or mental incapacity.
1.7 “Effective Date” means
December 17, 2009.
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, or the Audit Committee thereof, 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 second anniversary thereof (the “Term”). The first
three months from the Effective Date shall be a probation period (the “Probation Period”),
during which the Employee shall be appointed as the Company’s acting Chief
Financial Officer. Subject to the review and approval of the Board of the
Employee’s performance at the end of Probation Period, the Employee shall be
appointed as the Company’s Chief Financial Officer, commencing on the fourth
month from the Effective Date. The term shall automatically renew for an
additional year unless either Party provides notice to the other that the Term
shall not continue within 30 days prior to the end of the prior 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 a gross amount of $150,000 per annum or $12,500
per month (the “Salary”), payable
monthly in arrear from the Effective Date in US Dollars. All applicable
withholding taxes shall be deducted from such payments.
4.2 Options/Restricted Common
Stock. The Company hereby grants 300,000 shares of options of the Company
to the Employee at the exercise price of $3.9 per share to be vested pursuant to
the Vesting Schedule provided in the Option Grant Agreement as defined
below. The options to the Employee shall be exclusively governed by
the terms of the Non-Qualified Stock Option Agreement, a form of which is
attached hereto as Exhibit A (the “Option Grant Agreement”) between the Company
and the Employee.
2
4.3 Vacation. Employee
shall be entitled to fifteen (15) days of paid vacation per year taken at such
times so as to not materially impede her 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 in the current year may be carried over into future
years. Sick leaves shall be consistent with the Company’s standard
policies and applicable U.S. law. Employee should be entitled to
standard U.S. federal government holidays in addition to vacation or sick
leaves.
4.4 Business Expenses.
Employee shall be reimbursed by the Company for all ordinary and necessary
expenses incurred by Employee in the performance of her duties hereunder on
behalf of the Company, such expenses not to exceed $500 per month without the
prior written approval of the Company. Such expenses shall include
but not be limited to the following: (i) a laptop for the Employee’s performance
of her duty hereunder; (ii) a cell phone for the Employee’s performance of her
duty hereunder; (iii) a printer/scanner for the Employee’s performance of her
duty hereunder; and (iv) service fees of a cell phone, a landline phone and the
Internet for the Employee’s performance of her duty hereunder.
4.5 Health Insurance.
During the Term and subject to the review of the Board, the Employee shall
receive a health insurance reimbursement to the extent of the costs of
her participation of the California Blue Shield HMO Family Health
Plan.
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
fifteen (15) days prior to termination date or with a shorter notice period if
agreed upon by the Parties provided, however, that in the event of a breach of
this Agreement by the Employee or an event which would constitute “Cause”, the
Company may immediately terminate this Agreement upon written notice with no
waiting period. Upon the effective date of termination under this Section 5.2,
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.
3
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”).
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) she is subject to no contractual, fiduciary or other obligation which may
affect the performance of her duties under this Agreement; (b) she has
terminated, in accordance with their terms, any contractual obligation which may
affect her performance under this Agreement; and (c) her employment with the
Company will not require her 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 her 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 her 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:
4
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
her 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 her
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 her personal entitlements and
obligations, her rolodex, her personal correspondence files; and any additional
personal property;
7.1.4 During
the term of the Agreement and, for a period of three (3) 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:
5
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;
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 her 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.
6
7.4.2 The Company. This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
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 she 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:
7
If to the
Employee:
Yiru
Shi
0000
Xxxxx Xxxxxxxx Xxx.
Xxxxxxx
Xxxxx, XX 00000
Telephone: 000-000-0000
E-mail:
xxxxxxx@xxxxxxx.xxx
If to the
Company:
C915 Jia
Hao International Business Xxxxxx
000
Xxxxxxxxx Xxxx Xxxxxx Xxxxxxxx
Xxxxxxx,
Xxxxx 100097
Attn: Mr.
Xxxx Xxxx
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.
8
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.
--
Signature page follows --
9
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the day and year first above
written.
|
EMPLOYEE:
/s/
Yiru Shi
|
By:
/s/ Xxxx Xxxx
|
|
|
Xxxx
Xxx
|
Xxxx
Xxxx
Chief
Executive
Officer
|
10
EXHIBIT
A
OPTION
GRANT AGREEMENT
11
