EMPLOYMENT AGREEMENT
Exhibit
10.3
AGREEMENT ("Agreement") made
this 22nd day of April, 2009, by and between Sparking Events, Inc. (the
"Company") and Hui-Yu (Xxxxxx) Che ("Employee").
AGREEMENT:
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
agreements herein contained, the Company and Employee agree as
follows:
1. Employment/Duties: The
Company hereby agrees to employ Employee, and Employee hereby agrees to continue
to serve, subject to the provisions of this Agreement, as Chairman of the
Company. Employee shall continue to perform such duties and
responsibilities as are from time to time assigned to Employee by the Board of
Directors and shall report directly to the Board of Directors. Such
duties and responsibilities shall include the oversight to: (i) to
shape and implement the strategic business plan of the Company; (ii) to direct
the development and monitoring of operating goals and objectives; (iii) to
oversee financial operations and (iv) to provide leadership, direction and
administration of all aspects of Company activities, in all cases subject to the
supervision and authority of the Company's Board of
Directors. Employee agrees to continue to devote sufficient attention
and energies to the performance of the duties assigned to him hereunder, and to
perform such duties faithfully and to the best of his abilities and subject to
such laws, rules, regulations and policies from time to time applicable to the
Company's employees to the best of his knowledge.
2. Term: The
term of this Agreement shall be for a period of one (1) year commencing on the
date set forth above (“Effective Date”) and ending on the first anniversary
thereof (the "Initial Term"), unless terminated sooner pursuant to Section 7 of
this Agreement. Thereafter the Agreement is subject to automatic
renewals of one year period (each a "Renewal Term" and collectively with the
Initial Term, the "Term") unless Employee or Company notifies the other in
writing of its election not to renew, such notice to be provided not less than
ninety (90) days prior to the end of the Initial Term or the end of any Renewal
Term.
3. Compensation:
(a) Base
Compensation: For the services to be rendered by the Employee
under this Agreement the Company shall pay Employee a base salary ("Base
Compensation") of Fifty Thousand Dollars ($50,000.00) on a pro-rated basis
according to the Company's payroll schedule, exclusive of any dividend payments
and subject to applicable withholdings and other payroll
deductions.
(b) Bonus
Compensation: Upon each anniversary of this Agreement,
the Company’s Board of Directors shall determine whether a bonus for the
Employee is appropriate.
(c) Other
Benefits. Subject to the terms of the plans, Employee shall be
entitled to receive such other benefits or rights as may be provided under any
employee benefit plans provided by the Company to its executives that are now or
hereafter adopted, including participation in life, medical, disability and
dental insurance plans, vacation and sick leave, expense reimbursement and
long-term incentive plans. Notwithstanding anything to the contrary
set forth in this Agreement, any restricted stock awards, stock options or other
equity incentives of the Company (including, without limitation, those
outstanding at the time of termination of employment with the Company) shall be
subject to the terms set forth in such long-term incentive plans, as such plan
may be in effect from time to time, and in any restricted stock award, stock
option or other agreements (including, without limitation, those provisions
relating to vesting, exercisability, forefeitability), as may be entered into
between Employee and the Company pursuant to such long-term incentive
plans. Employee shall continue to be entitled to such paid holidays
as are provided to the Company's employees generally.
4. Vacation: Employee
shall be entitled to receive three (3) weeks paid vacation time for each year of
employment under this Agreement. Any vacation time which remains
unused at the end of a year of employment may be carried over to a succeeding
year.
5. Business
Expenses: The Company will reimburse or advance Employee
promptly (but not later than thirty (30) days after submittal of appropriate
vouchers or receipts) for his reasonable and documented out-of-pocket business
expenses for travel, meals and similar items incurred in connection with the
performance of Employee's duties (“Business Expenses”), and which are consistent
with the Company's general policies in effect regarding the reimbursement of
Business Expenses as the Company may from time to time establish. All
payments for reimbursement of such expenses shall be made to the Employee only
upon the presentation to the Company of appropriate vouchers or
receipts. All outstanding Employee requests for reimbursement of
Business Expenses shall be paid in full not later than the date of execution of
this Agreement.
6. Confidentiality: Employee
agrees to refrain from making any disparaging or unfavorable comments, in
writing or orally, about the Company, including but not limited to press
releases, communication with employees, vendors, customers, professional
references, and others.
7. Termination:
(a) Termination of Employment
With Cause: In addition to any other remedies available to the
Company at law, in equity or as set forth in this Agreement, the Company shall
have the right, upon written notice to Employee, to terminate his employment
hereunder without any further liability or obligation to him in respect of his
employment (other than its obligation to pay Base Compensation, Bonus and
vacation time accrued but unpaid as of the date of termination and reimbursement
of expenses incurred prior to the date of termination in accordance with Section
3 and 5 above) if Employee: (i) breaches any material
provision of this Agreement; or (ii) has committed an act of gross misconduct in
connection with the performance of his duties hereunder, as reasonably
determined in good faith by the Board of Directors of the Company; or (iii)
demonstrates habitual negligence in the performance of his duties, as reasonably
determined by the Board of Directors of the Company; or (iv) is convicted of or
pleads nolo contendere to any felony; or (v) is convicted of or pleads nolo
contendere to any misdemeanor involving moral turpitude and the conduct
underlying such misdemeanor has materially adverse or detrimental effect on the
Company, its reputation, or its business, as reasonably determined by the Board
of Directors of the Company; or (vi) has committed any act of fraud,
misappropriation of funds or embezzlement in connection with his employment
hereunder (a "Termination With Cause").
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Notwithstanding
the foregoing, no purported Termination With Cause pursuant to (i), (ii) or
(iii) of this
Section 7(a) shall be effective unless all of the following provisions shall
have been complied with: (x) Employee shall be given written notice
by the Board of Directors of the Company of the intention to effect a
Termination With Cause, such notice to state in detail the particular
circumstances that constitute the grounds on which the proposed Termination With
Cause is based; and (y) Employee shall have ten (10) business days after
receiving such notice in which to cure such grounds, to the extent such cure is
possible, as determined in the sole reasonable discretion of the Board of
Directors of the Company.
(b) Death;
Disability: In the event that Employee dies or becomes
Disabled (as defined herein) during the Term, Employee's employment shall
terminate when such death or Disability occurs and the Company shall pay
Employee (or his legal representative, as the case may be) as
follows:
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(i)
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any
Base Compensation, Bonus and vacation time accrued but unpaid as of the
date of death or termination for Disability;
and
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(ii)
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any
reimbursement for expenses incurred in accordance with Sections 3 and
5;.
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For the
purposes of this Agreement, Employee shall be deemed to be "Disabled" or have a
"Disability" if, because of Employee's personal injury, disability or illness,
he has been substantially unable to perform his duties hereunder for sixty (60)
days in any one hundred eighty (180) day period. Employee shall be
considered to have been substantially unable to perform his duties hereunder
only if he is either (i) unable to reasonably and effectively carry out his
duties with reasonable accommodations by the Company or (ii) unable to
reasonably and effectively carry out his duties because any reasonable
accommodation which may be required would cause the Company undue
hardship.
Notwithstanding
the foregoing, to the extent and for the period required by any state or federal
family and medical leave law, upon Employee's request (i) he shall be considered
to be on unpaid leave of absence and not terminated, (ii) his group health
benefits shall remain in full force and effect, and (iii) if Employee recovers
from any such Disability, at that time, to the extent required by any state or
federal family and medical leave law, upon Employee's request, he shall be
restored to his position hereunder or to an equivalent position, as the Company
may reasonably determine, and the Term of Employee's employment hereunder shall
be reinstated effective upon such restoration. The Term shall not be
extended by reason of such intervening leave of absence or termination, nor
shall any compensation or benefits accrue in excess of those required by law
during such intervening leave of absence or termination. Upon the
expiration of any such rights, unless Employee has been restored to a position
with the Company, he shall thereupon be considered terminated.
Employee
acknowledges that the payments referred to in both Sections 3 and 5 and this
Section 7(b) together with any rights or benefits under any written plan or
agreement which have vested on or prior to the termination date of Employee's
employment under this Section 7(b), constitute the only payments which Employee
(or his legal representative, as the case may be) shall be entitled to receive
from the Company hereunder in the event of a termination of his employment for
death or Disability, and the Company shall have no further liability or
obligation to him (or his legal representatives, as the case may be) hereunder
or otherwise in respect of his employment.
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(c) No Mitigation by
Employee. Except as otherwise expressly provided herein,
Employee shall not be required to mitigate the amount of any payment provided
for in this Agreement by seeking other employment or otherwise, nor shall the
amount of any payment provided for herein be reduced by any compensation earned
by Employee as the result of employment by another employer.
8. Intellectual Property
Rights: The Company shall be the owner of all inventions, improvements,
designs, methods, plans, computer programs, products, services and other
materials (collectively, “Developments”) created by Employee under this
Agreement or in which Employee assisted in the creation for the benefit of the
Company during the course of employment with the Company under this
Agreement. All intellectual property rights in such Developments of
the Company, including all patents, trademarks, copyrights, trade secrets and
industrial designs, shall be the exclusive property of the
Company. In the event that Employee acquires any rights or interests
in such Developments of the Company as a result of his work under this
Agreement, Employee agrees to assign and by executing this Agreement does assign
all such rights and interests to the Company. The Company shall have
the exclusive rights to obtain copyright registrations, letters patent,
industrial designs, trademark registrations or any other protection in respect
of the work products and the intellectual property rights in the Company’s
Developments anywhere in the world. At the expense and request of the
Company, Employee shall both during and after his employment with the Company,
execute all documents and do all other acts necessary in order to enable the
Company to protect its rights in the Company’s Developments; provided, however,
that Employee shall be entitled to reasonable compensation if he provides such
assistance after the term if this Agreement is ended.
9. Return of Company
Property: Employee agrees that following the termination of
his employment for any reason, he shall return all property of the Company, its subsidiaries, affiliates
and any divisions thereof he may have managed which is then in or thereafter
comes into his possession, including, but not limited to, documents, contracts,
agreements, plans, photographs, books, notes, electronically stored data and all
copies of the foregoing as well as any automobile or other materials or
equipment supplied by the Company to Employee.
10. Each Party, the
Drafter: This Agreement and the provisions contained in it
shall not be construed or interpreted for or against any party to this Agreement
because that party drafted or caused that party's legal representative to draft
any of its provisions.
11. Waiver: The
failure of either party to this Agreement to enforce any of its terms,
provisions or covenants shall not be construed as a waiver of the same or of the
right of such party to enforce the same. Waiver by either party
hereto of any breach or default by the other party of any term or provision of
this Agreement shall not operate as a waiver of any other breach or
default.
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12. Severability: In
the event that any one or more of the provisions of this Agreement shall be held
to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remainder of the Agreement shall not in any way be
affected or impaired thereby. Moreover, if any one or more of the
provisions contained in this Agreement shall be held to be excessively broad as
to duration, activity or subject, such provisions shall be construed by limiting
and reducing them so as to be enforceable to the maximum extent allowed by
applicable law.
13. Entire
Agreement: The provisions contained herein (including any
schedules, exhibits and documents delivered herewith or attached hereto)
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof.
14. Independent
Counsel: Employee and the Company each acknowledge that each
of them has had the opportunity to seek independent legal counsel in connection
with entering into this Agreement, and has either done so or has voluntarily
chosen not to.
15. Governing
Law: This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada, without regard to its conflict
of law rules.
16. Descriptive
Headings: The paragraph headings contained herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
17. Counterparts: This
Agreement may be executed in one or more counterparts, which, together, shall
constitute one and the same agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first written above.
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By:
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/s/
Yao-Ting (Xxxxxx) Su
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/s/
Hui-Yu (Xxxxxx) Xxx
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Xxx-Xxxx
(Xxxxxx) Xx
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Xxx-Xx
(Xxxxxx) Che
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Chairman
and Executive Director
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