EMPLOYMENT AGREEMENT
THIS
AGREEMENT (the “Agreement”), made in Chengdu, China as of February 2, 2009,
between Apollo Solar Energy, Inc., a Nevada corporation (the “Company”), and
Xxxx Xxxxx Sang (“Executive”).
WHEREAS,
the Company desires to employ Executive in the capacity of the Chief Financial
Officer (CFO) , and Executive desires to accept such employment on the terms and
conditions hereinafter set forth;
NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants and agreements hereinafter
set forth, the Company and Executive agree as follows:
1. Term.
Unless
earlier terminated in accordance with Section 4 hereof, Executive’s employment
hereunder shall commence as of the date hereof and end on the second anniversary
thereof (the “Term”).
2. Employment.
(a) Employment by the
Company. Executive agrees to be employed by the Company during
the Term upon the terms and subject to the conditions set forth in this
Agreement.
(b) Performance of
Duties. Throughout the Term, Executive shall faithfully and
diligently perform Executive’s duties in conformity with the directions of the
Company and serve the Company to the best of Executive’s
ability. Executive shall devote his full business time and best
efforts to the business and affairs of the Company. Executive shall
be responsible for such duties as may be assigned by the Company from time to
time, which duties may include duties related to the business of the Company’s
parents or affiliates without additional compensation therefor.
(c) Place of
Performance. Executive’s primary place of employment shall be
located in Chengdu, China/US or its immediate vicinity. Executive recognizes
that his duties will require, at the Company’s expense, travel to domestic and
international locations.
3. Compensation and
Benefits.
(a) Draw. The
Company agrees to pay to Executive a draw (“Draw”). During the first
period of the Term up to May 31, 2009, the Draw shall be payable at the annual
rate of $70,000. During the second period of the term between June 1,
2009 to December 31, 2009, the Draw shall be payable at the annual rate of
$90,000, and third period of the Term between January 1, 2009 to the end of the
term of this agreement, the Draw shall be payable at the annual rate of
$110,000. Payments of the Draw shall be payable in equal installments in
accordance with the Company’s standard payroll practices.
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(b) Benefits and
Perquisites. Executive shall not be entitled to participate in
any benefit plan, program, or arrangement or receive benefits or other
remuneration from the Company except as specifically provided in this Section 3
and in Section 5 below. Without limiting the foregoing, Executive
acknowledges that the Company does not currently make available to its employees
medical or dental health coverage and has no current intention to do
so.
(c) Stock Options.
Executive shall be entitled to a grant of 750,000 shares of the option of
the Company, vested in equal number of shares over a period of 24 months on a
monthly basis beginning the first day this agreement is effective. Exercise
price of the options shall be set equal to the price of the stock of the Company
during its most recent round of raising funds prior to the day this agreement
takes effect.
(d) Home Leave. Executive
shall be entitled to a paid home leave program such that Executive shall have a
five-day home leave every 6 (six) weeks. The Company shall pay for the round
trip flight ticket and expense for such home leave.
(e) Company Car and
Quarters. Executive shall be entitled to car and quarters provided by the
Company during his service in Chengdu, China.
(f) Business
Expenses. The Company agrees to reimburse Executive for all
reasonable and necessary travel, business entertainment and other business
expenses incurred by Executive in connection with the performance of his duties
under this Agreement. Such reimbursements shall be made by the
Company on a timely basis upon submission by Executive of vouchers in accordance
with the Company’s standard procedures.
(g) No Other Compensation or
Benefits; Payment. The compensation and benefits specified in
this Section 3 and in Section 5 of this Agreement shall be in lieu of any and
all other compensation and benefits. Payment of all compensation and
benefits to Executive specified in this Section 3 and in Section 5 of this
Agreement (i) shall be made in accordance with the relevant Company policies in
effect from time to time, including normal payroll practices, and (ii) shall be
subject to all legally required and customary withholdings.
(h) Cessation of
Employment. In the event Executive shall cease to be employed
by the Company for any reason, then Executive’s compensation and benefits shall
cease on the date of such event, except as otherwise specifically provided
herein or in any applicable employee benefit plan or program or as required by
law.
4. Termination of
Employment. Executive’s employment hereunder may be terminated
prior to the end of the Term under the following circumstances.
(a) Death. Executive’s
employment hereunder shall terminate upon Executive’s death.
(b) Executive Becoming Totally
Disabled. The Company may terminate Executive’s employment
hereunder at any time after Executive becomes “Totally Disabled.” For
purposes of this Agreement, Executive shall be “Totally Disabled” in the event
Executive is unable to perform the duties and responsibilities contemplated
under this Agreement for a period of 90 consecutive days due to physical or
mental incapacity or impairment. During any period that Executive
fails to perform Executive’s duties hereunder as a result of incapacity due to
physical or mental illness (the “Disability Period”), Executive shall continue
to receive the compensation and benefits provided by Section 3 of this Agreement
until Executive’s employment hereunder is terminated; provided, however, that
the amount of base compensation and benefits received by Executive during the
Disability Period shall be reduced by the aggregate amounts, if any, payable to
Executive under any disability benefit plan or program provided to Executive by
the Company.
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(c) Termination by the Company
for Cause. The Company may terminate Executive’s employment
hereunder for Cause at any time after providing written notice to
Executive. For purposes of this Agreement, the term “Cause” shall
mean any of the following: (i) the neglect or failure or refusal of
Executive to perform Executive’s duties hereunder (other than as a result of
total or partial incapacity due to physical or mental illness); (ii) the
engaging by Executive in gross misconduct or gross negligence in connection with
his employment or otherwise affecting the Company, its affiliates, or any
customers thereof; (iii) perpetration of a fraud against or affecting the
Company or any of its affiliates or any customer, client, agent, or employee
thereof; (iv) any willful or intentional act that could reasonably be expected
to injure the reputation, business, or business relationships of the Company or
any of its affiliates or Executive’s reputation or business relationships;
(v) Executive’s material failure to comply with, and/or a material
violation by Executive of, the internal policies of the Company or any of its
affiliates and/or procedures or any laws or regulations applicable to
Executive’s conduct as an employee of the Company; (vi) Executive’s commission
of a felony or any crime involving fraud, dishonesty or moral turpitude; (vii)
the breach of a covenant set forth in Section 6; or (viii) any other material
breach by Executive of this Agreement; provided, however, that, if susceptible
of cure, a termination by the Company under Sections 4(c)(i), 4(c)(v) or
4(c)(viii) shall be effective only if, within 14 days following delivery of a
written notice by the Company to Executive that the Company is terminating his
employment for Cause, Executive has failed to cure the circumstances giving rise
to Cause.
(d) Termination by the Company
Without Cause. The Company may terminate Executive’s
employment hereunder at any time for any reason or no reason by giving Executive
thirty (30) days prior written notice of the termination. Following
any such notice, the Company may reduce or remove any and all of Executive’s
duties, positions and titles with the Company.
(e) Termination by
Executive. Executive may terminate his employment hereunder at
any time for any reason or no reason by giving the Company thirty (30) days
prior written notice of the termination. Following any such notice,
the Company may reduce or remove any and all of Executive’s duties, positions
and titles with the Company.
5. Compensation Following
Termination Prior to the End of the Term. In the event that
Executive’s employment hereunder is terminated prior to the end of the Term,
Executive shall be entitled only to the following compensation and benefits upon
such termination:
(a) General. On
any termination of Executive’s employment, he shall be entitled to:
(i) any
accrued but unpaid Draw for services rendered through the date of
termination;
(ii) any
vacation accrued to the date of termination;
(iii) any
accrued but unpaid expenses through the date of termination required to be
reimbursed in accordance with Section 3(d) of this Agreement; and
(iv) receive
any benefits to which he may be entitled upon termination pursuant to the plans
and programs referred to in Section 3(c) hereof in accordance with the terms of
such plans and programs or as may be required by applicable law.
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(b) Termination by the Company
Without Cause. In the event that Executive’s employment is
terminated prior to the expiration of the Term by the Company without Cause
pursuant to Section 4(d), Executive shall be entitled only to the
following:
(i) those
items identified in Section 5(a);
(ii) a
lump sum payment equal to 24 months cash compensation based on the amount of the
Draw immediately proceeding the month of the termination;
(iii) The
Executive shall also be entitled to vest all the options that remain un-vested,
and to keep the options for a period of 12 (twelve) months after the
termination.
(c) Effect of Material Breach of
Section 6 on Compensation and Benefits Following Termination of Employment
Pursuant to Section 5. If, at the time of the termination of
Executive’s employment or any time thereafter, Executive is in material breach
of any covenant contained in Section 6 hereof, Executive (or his estate, as
applicable) shall not be entitled to any payment (or if payments have commenced,
any continued payment) under Sections 5(c)(ii).
(d) No Further Liability;
Release. Payment made and performance by the Company in
accordance with this Section 5 shall operate to fully discharge and release the
Company and its directors, officers, employees, affiliates, stockholders,
successors, assigns, agents and representatives from any further obligation or
liability with respect to Executive’s employment and termination of
employment. Other than providing the compensation and benefits
provided for in accordance with this Section 5, the Company and its directors,
officers, employees, affiliates, stockholders, successors, assigns, agents and
representatives shall have no further obligation or liability to Executive or
any other person under this Agreement. The payment of any amounts
pursuant to this Section 5 (other than payments required by law) subsequent to
the termination of Executive’s employment is expressly conditioned upon the
delivery by Executive to the Company of a release in form and substance
reasonably satisfactory to the Company of any and all claims Executive may have
against the Company, its parents and affiliates, and their respective directors,
officers, employees, stockholders, successors, assigns, agents and
representatives arising out of or related to Executive’s employment by the
Company and the termination of such employment.
(e) Expiration of
Term. If Executive’s employment continues following expiration
of the Term, such employment shall be at will, meaning that such employment may
be terminated at any time by Executive or the Company with or without Cause and
without further obligation, on such terms and conditions as may be established
by the Company from time to time. Without limiting the foregoing, the
severance provision contained in Section 5(c)(ii) shall survive the expiration
of the Term unless otherwise agreed by the Company in writing.
6. Exclusive Employment;
Noncompetition; Nonsolicitation; Nondisclosure of Proprietary Information;
Surrender of Records; Inventions and Patents.
6.1 No Conflict; No Other
Employment. During the period of Executive’s employment with
the Company, Executive shall not: (i) engage in any activity which
conflicts or interferes with or derogates from the performance of Executive’s
duties hereunder nor shall Executive engage in any other business activity,
whether or not such business activity is pursued for gain or profit and
including service as a director of any other company, except as approved in
advance in writing by the Company, provided, however, that Executive shall be
entitled to manage his personal investments and otherwise attend to personal
affairs, including charitable, social and political activities, in a manner that
does not unreasonably interfere with his responsibilities hereunder; or (ii)
accept or engage in any other employment, whether as an employee or consultant
or in any other capacity, and whether or not compensated therefor.
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6.2 Noncompetition;
Nonsolicitation.
(a) Executive
acknowledges and recognizes the highly competitive nature of the Company’s
business and that access to the Company’s confidential records and proprietary
information renders him special and unique within the Company’s
industry. In consideration of the payment by the Company to Executive
of amounts that may hereafter be paid to Executive pursuant to this Agreement
(including, without limitation, pursuant to Sections 3 and 5 hereof) and other
obligations undertaken by the Company hereunder, Executive agrees that during
(i) his employment with the Company and (ii) the period beginning on the date of
termination of employment for any reason and ending two years after the date of
termination of employment (the “Post-Employment Period”), Executive shall not,
directly or indirectly, engage (as owner, investor, partner, stockholder,
employer, employee, consultant, advisor, director or otherwise) in any Competing
Business anywhere in any
geographic area or market where Company or any of its affiliated companies are
conducting any business, provided that the provisions of this Section
6.2(a) will not be deemed breached merely because Executive owns less than 1% of
the outstanding common stock of a publicly-traded company. For
purposes of this Agreement, “Competing Business” shall mean (i) any business
engaged in the sales, marketing, and/or product development of specialty
printing or packaging products for the horticulture industry; and (ii) any
other business in which the Company is then engaged.
(b) In
further consideration of the payment by the Company to Executive of amounts that
may hereafter be paid to Executive pursuant to this Agreement (including,
without limitation, pursuant to Sections 3 and 5 hereof) and other obligations
undertaken by the Company hereunder, Executive agrees that during his employment
and the Post-Employment Period, he shall not, directly or indirectly, (i)
solicit, encourage or attempt to solicit or encourage any of the employees,
agents, consultants or representatives of the Company or any of its affiliates
to terminate his, her, or its relationship with the Company or such affiliate;
(ii) solicit, encourage or attempt to solicit or encourage any of the
employees, agents, consultants or representatives of the Company or any of its
affiliates to become employees, agents, representatives or consultants of any
other person or entity; (iii) solicit or attempt to solicit any supplier,
customer, vendor or distributor of the Company or any of its affiliates with
respect to any product or service being furnished, made, sold or leased to or by
the Company or such affiliate; or (iv) persuade or seek to persuade any supplier
or customer of the Company or any affiliate to cease to do business or to reduce
the amount of business which any supplier or customer has customarily done or
contemplates doing with the Company or such affiliate, whether or not the
relationship between the Company or its affiliate and such supplier or customer
was originally established in whole or in part through Executive’s
efforts. For purposes of this Section 6.2(b) only, during the
Post-Employment Period, the terms “supplier,” “customer,” “vendor” and
“distributor” shall mean a supplier, customer, vendor or distributor who has
done business with the Company or any of its affiliates within twelve months
preceding the termination of Executive’s employment.
(c) During
Executive’s employment with the Company and the Post-Employment Period,
Executive agrees that upon the earlier of Executive’s (i) negotiating with any
Competitor (as defined below) concerning the possible employment of Executive by
the Competitor, (ii) receiving an offer of employment from a Competitor, or
(iii) becoming employed by a Competitor, Executive will (A) immediately provide
notice to the Company of such circumstances and (B) provide copies of Section 6
of this Agreement to the Competitor. Executive further agrees that
the Company may provide notice to a Competitor of Executive’s obligations under
this Agreement, including without limitation Executive’s obligations pursuant to
Section 6 hereof. For purposes of this Agreement, “Competitor” shall
mean any entity (other than the Company or any of its affiliates) that engages,
directly or indirectly, in any Competing Business.
(d) Executive
understands that the provisions of this Section 6.2 may limit his ability to
earn a livelihood in a business similar to the business of the Company or its
affiliates but nevertheless agrees and hereby acknowledges that the
consideration provided under this Agreement, including any amounts or benefits
provided under Sections 3 and 5 hereof and other obligations undertaken by the
Company hereunder, is sufficient to justify the restrictions contained in such
provisions. In consideration thereof and in light of Executive’s
education, skills and abilities, Executive agrees that he will not assert in any
forum that such provisions prevent him from earning a living or otherwise are
void or unenforceable or should be held void or unenforceable.
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6.3 Proprietary
Information. Executive acknowledges that during the course of
his employment with the Company he will necessarily have access to and make use
of proprietary information and confidential records of the Company and its
affiliates. Executive covenants that he shall not during the Term or
at any time thereafter, directly or indirectly, use for his own purpose or for
the benefit of any person or entity other than the Company, nor otherwise
disclose, any proprietary information to any individual or entity, unless such
disclosure has been authorized in writing by the Company or is otherwise
required by law. Executive acknowledges and understands that the term
“proprietary information” includes, but is not limited to: (a) the
software products, programs, applications, and processes utilized by the Company
or any of its affiliates; (b) the name and/or address of any customer or
vendor of the Company or any of its affiliates or any information concerning the
transactions or relations of any customer or vendor of the Company or any of its
affiliates with the Company or such affiliate or any of its or their partners,
principals, directors, officers or agents; (c) any information concerning any
product, technology, or procedure employed by the Company or any of its
affiliates but not generally known to its or their customers, vendors or
competitors, or under development by or being tested by the Company or any of
its affiliates but not at the time offered generally to customers or vendors;
(d) any information relating to the computer software, computer systems, pricing
or marketing methods, sales margins, cost of goods, cost of material, capital
structure, operating results, borrowing arrangements or business plans of the
Company or any of its affiliates; (e) any information which is generally
regarded as confidential or proprietary in any line of business engaged in by
the Company or any of its affiliates; (f) any business plans, budgets,
advertising or marketing plans; (g) any information contained in any of the
written or oral policies and procedures or manuals of the Company or any of its
affiliates; (h) any information belonging to customers or vendors of the Company
or any of its affiliates or any other person or entity which the Company or any
of its affiliates has agreed to hold in confidence; (i) any inventions,
innovations or improvements covered by this Agreement; and (j) all written,
graphic and other material relating to any of the
foregoing. Executive acknowledges and understands that information
that is not novel or copyrighted or patented may nonetheless be proprietary
information. The term “proprietary information” shall not include
information generally available to and known by the public or information that
is or becomes available to Executive on a non-confidential basis from a source
other than the Company, any of its affiliates, or the directors, officers,
employees, partners, principals or agents of the Company or any of its
affiliates (other than as a result of a breach of any obligation of
confidentiality).
6.4 Confidentiality and
Surrender of Records. Executive shall not during the Term or
at any time thereafter (irrespective of the circumstances under which
Executive’s employment by the Company terminates), except as required by law,
directly or indirectly publish, make known or in any fashion disclose any
confidential records to, or permit any inspection or copying of confidential
records by, any individual or entity other than in the course of such
individual’s or entity’s employment or retention by the Company. Upon
termination of employment for any reason or upon request by the Company,
Executive shall deliver promptly to the Company all property and records of the
Company or any of its affiliates, including, without limitation, all
confidential records. For purposes hereof, “confidential records”
means all correspondence, reports, memoranda, files, manuals, books, lists,
financial, operating or marketing records, magnetic tape, or electronic or other
media or equipment of any kind which may be in Executive’s possession or under
his control or accessible to him which contain any proprietary
information. All property and records of the Company and any of its
affiliates (including, without limitation, all confidential records) shall be
and remain the sole property of the Company or such affiliate during the Term
and thereafter.
6.6 Enforcement. Executive
acknowledges and agrees that, by virtue of his position, his services and access
to and use of confidential records and proprietary information, any violation by
him of any of the undertakings contained in this Section 6 would cause the
Company and/or its affiliates immediate, substantial and irreparable injury for
which it or they have no adequate remedy at law. Accordingly,
Executive agrees and consents to the entry of an injunction or other equitable
relief by a court of competent jurisdiction restraining any violation or
threatened violation of any undertaking contained in this Section
6. Executive waives posting by the Company or its affiliates of any
bond otherwise necessary to secure such injunction or other equitable
relief. Rights and remedies provided for in this Section 6 are
cumulative and shall be in addition to rights and remedies otherwise available
to the parties hereunder or under any other agreement or applicable
law.
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7. Assignment and
Transfer.
(a) Company. This
Agreement shall inure to the benefit of and be enforceable by, and may be
assigned by the Company without Executive’s consent, to any affiliate of the
Company, any purchaser of the Company’s business or assets or a portion thereof,
or any successor to the Company or any assignee thereof (whether direct or
indirect, by purchase, merger, consolidation or otherwise).
(b) Executive. The
parties hereto agree that Executive is obligated under this Agreement to render
personal services during the Term of a special, unique, unusual, extraordinary
and intellectual character, thereby giving this Agreement special
value. Executive’s rights and obligations under this Agreement shall
not be transferable by Executive by assignment or otherwise, and any purported
assignment, transfer or delegation thereof shall be void; provided, however,
that if Executive shall die, all amounts then payable to Executive hereunder
shall be paid in accordance with the terms of this Agreement to Executive’s
estate.
8. Miscellaneous.
(a) Other
Obligations. Executive represents and warrants that neither
Executive’s employment with the Company nor Executive’s performance of
Executive’s obligations hereunder will conflict with or violate or otherwise are
inconsistent with any other obligations, legal or otherwise, which Executive may
have. Executive covenants that he shall perform his duties hereunder
in a professional manner and not in conflict or violation, or otherwise
inconsistent with other obligations legal or otherwise, which Executive may
have.
(b) Nondisclosure; Other
Employers. Executive will not disclose to the Company, use, or
induce the Company to use, any proprietary information, trade secrets or
confidential business information of others. Executive represents and
warrants that Executive does not possess any property, proprietary information,
trade secrets and confidential business information belonging to any prior
employers.
(c) Cooperation. Following
termination of employment with the Company for any reason, Executive shall
cooperate with the Company, as requested by the Company, to effect a transition
of Executive’s responsibilities and to ensure that the Company is aware of all
matters being handled by Executive.
(d) Protection of
Reputation. During the Term and thereafter, Executive agrees
that he will take no action which is intended, or would reasonably be expected,
to harm the Company or any of its affiliates or its or their reputation or which
would reasonably be expected to lead to unwanted or unfavorable publicity to the
Company or its affiliates. Nothing herein shall prevent Executive
from making any truthful statement in connection with any legal proceeding or
investigation by the Company or any governmental authority.
(e) Choice of Law; Consent to
Jurisdiction. This Agreement shall be governed by and
construed (both as to validity and performance) and enforced in accordance with
the internal laws of the State of California applicable to agreements made and
to be performed wholly within such jurisdiction, without regard to the
principles of conflicts of law or where the parties are located at the time a
dispute arises. Any action concerning any dispute arising out of or
relating to this Agreement or the employment of Executive by the Company must be
brought in a court situated in California, and each party hereto consents
and submits to the jurisdiction of any state or federal court sitting in
California for any such action.
(f) Entire
Agreement. This Agreement contains the entire agreement and
understanding between the parties hereto in respect of Executive’s employment
and supersedes, cancels and annuls any prior or contemporaneous written or oral
agreements, understandings, commitments and practices between them respecting
Executive’s employment, including all prior employment agreements between the
Company and Executive, which agreement(s) hereby are terminated and shall be of
no further force or effect.
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(g) Amendment. This
Agreement may be amended only by a writing which makes express reference to this
Agreement as the subject of such amendment and which is signed by Executive and,
on behalf of the Company, by its duly authorized officer.
(h) Severability. If any
provision of this Agreement or the application of any such provision to any
party or circumstances shall be determined by any court of competent
jurisdiction or arbitration panel to be invalid or unenforceable to any extent,
the remainder of this Agreement, or the application of such provision to such
person or circumstances other than those to which it is so determined to be
invalid or unenforceable, shall not be affected thereby, and each provision
hereof shall be enforced to the fullest extent permitted by law. If
any provision of this Agreement, or any part thereof, is held to be invalid or
unenforceable because of the scope or duration of or the area covered by such
provision, the parties hereto agree that the court or arbitration panel making
such determination shall reduce the scope, duration and/or area of such
provision (and shall substitute appropriate provisions for any such invalid or
unenforceable provisions) in order to make such provision enforceable to the
fullest extent permitted by law and/or shall delete specific words and phrases,
and such modified provision shall then be enforceable and shall be
enforced. The parties hereto recognize that if, in any judicial or
arbitral proceeding, a court or arbitration panel shall refuse to enforce any of
the separate covenants contained in this Agreement, then that invalid or
unenforceable covenant contained in this Agreement shall be deemed eliminated
from these provisions to the extent necessary to permit the remaining separate
covenants to be enforced. In the event that any court or arbitration
panel determines that the time period or the area, or both, are unreasonable and
that any of the covenants is to that extent invalid or unenforceable, the
parties hereto agree that such covenants will remain in full force and effect,
first, for the greatest time period, and second, in the greatest geographical
area that would not render them unenforceable.
(i) Construction. The
headings and captions of this Agreement are provided for convenience only and
are intended to have no effect in construing or interpreting this
Agreement. The language in all parts of this Agreement shall be in
all cases construed according to its fair meaning and not strictly for or
against the Company or Executive. As used herein, the words “day” or
“days” shall mean a calendar day or days.
(j) Nonwaiver. Neither
any course of dealing nor any failure or neglect of either party hereto in any
instance to exercise any right, power or privilege hereunder or under law shall
constitute a waiver of any other right, power or privilege or of the same right,
power or privilege in any other instance. All waivers by either party
hereto must be contained in a written instrument signed by the party to be
charged and, in the case of the Company, by its duly authorized
officer.
(k) Notices. Any
notice required or permitted hereunder shall be in writing and shall be
sufficiently given if personally delivered or if sent by registered or certified
mail, postage prepaid, with return receipt requested, addressed: (i)
in the case of the Company, to Xx. 000, Xxxx Xxx Xxxxx Xxxx,
Xxxxxxxxx Xxxxxxxxx Airport Economic Development Zone, Shuangliu, Chengdu,
China; and (ii) in the case of Executive, to Executive’s last known
address as reflected in the Company’s records, or to such other address as
Executive shall designate by written notice to the Company. Any
notice given hereunder shall be deemed to have been given at the time of receipt
thereof by the person to whom such notice is given if personally delivered or at
the time of mailing if sent by registered or certified mail.
(l) Assistance in Proceedings,
Etc. Executive shall, without additional compensation, during
and after the Term, upon reasonable notice, furnish such information and proper
assistance to the Company and its affiliates as may reasonably be required by
the Company or its affiliates in connection with any legal or quasi-legal
proceeding, including any external or internal investigation, involving the
Company or any of its affiliates.
(m) Survival. Cessation
or termination of Executive’s employment with the Company shall not result in
termination of this Agreement. The respective obligations of
Executive and the Company as provided in Sections 5, 6, 7 and 8 of this
Agreement shall survive cessation or termination of Executive’s employment
hereunder.
(n) Section 409A of the
Code. The Company makes no representations regarding the tax implications
of the compensation and benefits to be paid to Executive under this Agreement,
including, without limitation, under Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”). The parties agree that in the event
Executive or the Company reasonably determines that the terms hereof would
result in Executive being subject to tax under Section 409A of the Code,
Executive and the Company shall negotiate in good faith to amend this Agreement
to the extent necessary to prevent the assessment of any such tax, including by
delaying the payment dates of any amounts hereunder.
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(o) Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall be deemed to be one and the
same instrument.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be duly executed on
its behalf by an individual thereunto duly authorized and Executive has duly
executed this Agreement, all as of the date and year first written
above.
Apollo
Solar Energy,
Inc: EXECUTIVE:
By: /s/Hou
Renyi
By: /s/Xxxx Xxxxx
Sang
Name: Hou
Renyi Name:
Xxxx Xxxxx Sang
Title:
Chairman & CEO
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