Form of Employment Contract
This
Employment Contract (“Contract”)
is entered into as of the ___day of ____, 2009 (the “Effective
Date”) by and between:
[Alpha Bermuda], a Bermuda company
(“Party
A”);
Xx. Xxxx Benxi, whose Chinese
ID No. is [*]
(hereinafter referred to as “Party B”
and, together with Party A, the “Parties”);
and
Shandong Soy Bean Process Food Co.,
Ltd., a company incorporated in the People’s Republic of China (including
its successors and assigns, “Party
C”).
RECITALS
WHEREAS, Party A is party to
that certain Agreement and Plan of Merger, Conversion and Share Exchange dated
as of December 31, 2008 by and among Alpha Security Group Corporation, a
Delaware corporation (including its successors and assigns), Party A, Soya China
Pte. Ltd., Splendid International Holdings Pte. Ltd., Bright Strong Investments
Limited and Special Result Limited (BVI) (the “Merger
Agreement”);
WHEREAS, prior to the
Effective Date, Party B has been employed by Party C pursuant to the terms of
that certain employment agreement between Party C and Party B dated as of
January 1, 2008 (the “Prior Employment
Contract”);
WHEREAS, following the
transactions contemplated by the Merger Agreement (collectively, the “Business
Combination”), Party C and Party B desire to terminate their employment
relationship and Party A desires to secure the services and employment of Party
B on behalf of Party A and its subsidiaries and affiliates, and Party B desires
to enter into such continuing employment with Party A, upon the terms and
conditions hereinafter set forth;
WHEREAS, Party A also wishes
to obtain reasonable protection for its investment in the Business Combination
and to further protect against unfair competition by Party B, and Party B is
willing to abide by the covenants contained in this Contract, in order to
satisfy Party A’s reasonable wishes.
AGREEMENT
NOW, THEREFORE, in
consideration of the mutual covenants and obligations set forth hereunder and
other lawful considerations, Party A, Party B and Party C hereby agree as
follows:
1.
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TERMINATION OF PRIOR
EMPLOYMENT CONTRACT
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1.1
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Party C and Party B
hereby terminate the Prior Employment Contract. This Contract
shall supersede all prior agreements and understandings with
respect to Party B’s employment by Party C, including, but not limited to,
the Prior Employment
Contract.
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1.2
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In
connection with the closing of the Business Combination, Party A agrees to
recognize Party B’s years of service as an employee of Party C for
purposes of Party B’s employment with Party A as governed by this
Contract.
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1.3
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Party B hereby
releases and forever discharges Party C from any and all severance
payment obligations in connection with the termination of the Prior
Employment Contract and Party B’s employment by Party C which may be
imposed by the Employment Contract Law of the People’s Republic of China,
effective January 1, 2008, and the rules and regulations promulgated
thereunder (the “ECL”) and the relevant
regulations of Shandong
Province.
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2.
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APPOINTMENT AND
TERM
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2.1
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Subject to
the terms of this Contract, Party A shall employ Party B and Party B
agrees to be employed by Party A as the Chief Operating Officer of Party
A.
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2.2
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This
Contract is a fixed term contract, effective from[______], 2009 to [_________], 2012 (the
“Initial
Term”) or until terminated by either party in accordance with this
Contract. Upon the expiration
of the Initial Term, this Contract shall be automatically renewed and
extended for an additional period of one year (each, a “Renewal
Term”
and each Renewal Term together with the Initial Term, the “Term”) on each
anniversary thereafter, unless either party gives notice of non-renewal to
the other party at least thirty days’ prior to such
anniversary. Any provision in this Contract, however,
that by its terms survives expiration of this Contract shall so survive,
and the Parties shall continue to be bound by the terms of each such
provision for the time period set forth
therein.
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3.
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DUTIES
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3.1
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During Party
B’s employment, Party B
shall:
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(a)
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be
based in Shandong Province, the People’s Republic of China (“China”)
and perform, to the best of Party B’s ability and with all reasonable
care, the duties and exercise the powers and functions (both within and,
when required by Party A to do so, anywhere outside of China) as are
customary for Party B’s position and such other duties and
responsibilities that may be assigned by Party A from time to
time;
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(b)
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comply
with all reasonable requests, instructions and regulations made by
Party A.
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3.2
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Party
A shall have the right to require Party B at any time to carry out such
special projects or other functions compatible with Party B’s office and
abilities as Party A shall in its absolute discretion
determine.
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2
3.3
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Party
A will pay or reimburse Party B for all reasonable and necessary
out-of-pocket expenses incurred by him in the performance of his duties
under this Agreement. Party B shall keep detailed and accurate
records of expenses incurred in connection with the performance of his
duties hereunder and reimbursement therefor shall be in accordance with
policies and procedures to be established from time to time by Party
A.
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4.
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LABOR PROTECTION AND
WORKING CONDITIONS
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4.1
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Party
A’s standard working hours shall be eight (8) hours per day and five (5)
days per week. As part of Party A’s management team, however,
Party B is expected to work uneven or long hours or travel with irregular
hours without additional overtime pay (other than his remuneration set out
below).
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4.2
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Party
A will provide Party B with all the necessary labor protections and
working conditions in accordance with the Labor Law of the People’s
Republic of China, effective January 1, 1995, and the rules and regulations
promulgated thereunder (the “Labor Law
of China” and together with the ECL, the “Labor
Laws”).
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5.
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REMUNERATION
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5.1
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As
remuneration for Party B’s services, Party A shall pay to Party B a
monthly base salary of RMB10,000 (which shall be deemed to accrue from day
to day) payable in arrears at the end of each
month.
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5.2
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Each
fiscal year during the Term, Party B will be considered for a cash
bonus. The amount of such bonus, if any, shall be within the
sole discretion of the board of directors of Party A. Party B’s receipt of
such bonus shall be subject to the terms of the applicable plans,
policies, practices and corporate governance standards of Party A, as the
same may be amended from time to
time.
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5.3
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Each
fiscal year during the Term on December 31st,
pursuant to the [Alpha
Bermuda] 2009 Omnibus
Securities and Incentive Plan, Party A shall grant Party B options to
purchase 25,000 shares of common
stock of Party A (“Options”)
at an exercise price equal to the fair market value of Party A’s common
stock on the date of grant. The Options shall vest and become
exercisable upon the one year anniversary of the grant date and shall
expire on the sixth anniversary of the grant date. Additional
conditions of the Options shall be set forth in an incentive stock option
agreement as approved by the board of directors of Party
A.
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5.4
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In
setting Party B’s compensation above, Party A has taken into consideration
the nature of Party B’s position and duties, and such remuneration
represents regular salary, overtime payment and payment for
post-termination undertakings and covenants contained
hereunder.
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3
6.
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BENEFITS
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6.1
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Both
Party A and Party B shall, in accordance with the social insurance
regulations of China and Shandong Province, pay the relevant social
insurance premiums.
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6.2
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In
the event that Party B is suffering from illness or disability caused
during the performance of his duties under this Contract (a “Work-Related
Illness”),
Party B’s wages and medical insurance benefits shall be provided in
accordance with the relevant regulations of China and Shandong
Province.
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7.
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HOLIDAYS
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7.1
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In
addition to the statutory holidays as defined in the Labor Law of China,
Party B shall be entitled to twenty (20) business days paid annual leave
during each calendar year (accruing pro rata during the year) to be taken
at such times or times as may be approved by
Party A.
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7.2
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Party
B may carry forward Party B’s unused annual leave for one calendar year
subsequent to the calendar year in which such leave was
unused.
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7.3
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There
will be no payment in lieu of any unused leave entitlement except upon
termination as required by the Labor Laws and relevant regulations of
Shandong Province. On such termination, payment in lieu of
annual leave is calculated using the following formula: monthly salary divided by
thirty (30) and multiplied by the number of unused annual leave
days.
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8.
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SICK
LEAVE
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8.1
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Party
B shall be entitled to paid sick leave in accordance with the relevant regulations of China and
Shandong Province.
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8.2
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Any
additional paid leave shall be at the discretion of Party
A.
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9.
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CONDUCT OF THE
EMPLOYEE
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9.1
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Party
B shall comply with all applicable laws, rules, orders and regulations of
China and other jurisdictions in carrying out its duties and
responsibilities under this
Contract.
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9.2
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During
Party B’s employment by Party A and thereafter, Party B will keep all
confidential information of Party A in strict confidence and will not use
or disclose to any third party such confidential
information. Such confidential information includes, but is not
limited to, customer lists, research and development, trade secrets
developed or learned by Party B during its employment, as well as the
provisions of this Contract. For the purposes of this
provision, all information relating to Party A’s business or operation,
unless known and available to the general public, shall be deemed
confidential information.
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4
9.3
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Upon
termination of Party B’s employment by Party A, Party B shall promptly
return to Party A any files, letters, or other records, documents, films
or computer storage devices in its possession or control that relate to
Party A’s business, operation or affairs or relate to Party’s B’s
performance of obligations
hereunder.
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9.4
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These
obligations will continue to apply after the expiration or termination of
Party B’s employment, however caused, and are in addition to the duties of
confidentiality prescribed by law.
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9.5
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Party
B must immediately notify Party A of any suspected or actual unauthorized
use, copying or disclosure of confidential information. Party B must
provide assistance reasonably requested by Party A in relation to any
proceedings Party A may take against any person for unauthorized use,
copying or disclosure of confidential
information.
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10.
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TERMINATION OF
EMPLOYMENT
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10.1
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This
Contract may be terminated with the consent of both Parties through
negotiation before the expiration
date.
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10.2
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Subject
to the relevant provisions of the Labor Laws, and without limiting other
rights Party A may have under the Labor Laws, Party A may terminate this
Contract without notice or payment in lieu thereof if Party B: (i) engages
in any willful misconduct that could reasonably be expected to injure the
reputation, business or business relationships of Party A, including any
violation of Party A’s policies; (ii) perpetrates a fraud against or
affecting Party A or any customer, supplier, client, agent or employee
thereof; (iii) is convicted (including conviction on nolo contendere, no
contest or similar plea) of a felony or any crime involving fraud,
dishonesty or moral turpitude; or (iv) is working for another employer in
a manner that materially and negatively affects Party B’s job performance
for Party A.
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10.3
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Except
as provided in Section 10.5 below, subject to the relevant provisions of
the Labor Laws, and without limiting other rights Party A may have under
the Labor Laws, Party A may terminate this Contract upon thirty days’
written notice to Party B or payment of one month’s base salary to Party B
if: (i) Party B is unable to or fails to perform Party B’s duties
hereunder as a result of illness (other than a Work-Related Illness); (ii)
Party B continuously neglects, refuses or fails to perform Party B’s
duties hereunder, which continues for a period of thirty (30) days after
Party A delivers written notice to Party B specifically identifying the
manner in which Party B has neglected, failed or refused to perform Party
B’s duties and, in the case of failure to perform, provides training to
Party B with respect to such failure; or (iii) the performance of the
either Party’s obligations under this Contract have become impossible to
perform due to a change in
circumstances.
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5
10.4
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Except
as provided in Section 10.5 below, subject to the relevant provisions of
the Labor Laws, and without limiting other rights Party A may have under
the Labor Laws, Party A may engage in an economic layoff of twenty (20) or
more employees upon thirty (30) days’ notice to the relevant labor union
if: (i) a “Bankruptcy” occurs (as defined below); (ii) Party A encounters
serious difficulties in production or operation; (iii) Party A changes
production, experiences a major technological innovation or adjusts the
form of business operation after which dismissal of employees is
necessary; or (iv) a major change occurs to an objective economic
circumstance and, as a result, it is not feasible to fulfill the
Contract. In case of termination of a dismissal under this
Section 10.5, the following employees shall have priority to retain
employment: (a) employees with a fixed term employment contract
with a relatively long term; (b) employees with an open term employment
contract; and (c) any employee who is the sole bread winner in his or her
family and dependent family members include the elderly or
minors. For purposes of this Contract, “Bankruptcy”
shall mean: (1) the filing by Party A or any of its subsidiaries of a
voluntary petition in bankruptcy or a voluntary petition seeking
reorganization, arrangement or readjustment in any form of its debts under
any insolvency law of any jurisdiction, or the filing of an answer
consenting to or acquiescing in any such petition, (2) the making by Party
A or any of its subsidiaries of any assignment for the benefit of its
creditors or the admission by Party A or any of its subsidiaries of its
inability generally to pay its debts when they become due, (3) the filing
of an involuntary petition against Party A or any of its subsidiaries in a
bankruptcy or liquidation proceeding, (4) the filing of an application for
the appointment of a receiver for the assets of Party A or any of its
subsidiaries, or (5) the filing of an involuntary petition seeking
reorganization, arrangement or readjustment of the debts of Party A or any
of its subsidiaries under insolvency law of any
jurisdiction
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10.5
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Notwithstanding
the foregoing, Party A may not terminate Party B under Sections 10.4 or
10.5 of this Contract if: (i) Party B has been employed by Party A for
fifteen years and is eligible for retirement in less than five years; (ii)
Party B is undergoing examination or diagnosis relating to a potential
Work-Related Illness; (iii) Party B has been diagnosed with a Work Related
Illness; (iv) Party B is receiving treatment for an illness that is not a
Work-Related Illness; (v) Party B is a female on leave for maternity
purposes; or (vi) Party B is employed in a high risk work area and has not
received a medical examination prior to
termination.
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10.6
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Subject
to the relevant provisions of the Labor Laws, Party B may terminate this
Contract by giving thirty days’ written notice to Party A if Party A: (i)
materially breaches any of its obligations under this Contract; (ii) fails
to pay wages to Party B according to this Contract; (iii) fails to pay
social insurance on behalf of Party B; (iv) fails to provide working
conditions in accordance with applicable law or regulation; (v) otherwise
in accordance with applicable law or regulation. Party B may
terminate this Contract without written notice to Party A if Party A
forces Party B to work by means of violence, intimidation or illegal
restriction of personal freedom.
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10.7
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This
Contract and Party B’s employment hereunder shall terminate immediately
upon Party B’s death or upon a good faith finding by Party A, in its sole
discretion and subject to the Labor Laws, that Party B is unable to carry
out Party B’s essential job functions to any substantial degree, for a
period of sixty (60) consecutive calendar days or longer in any
consecutive twelve (12) month period, even with reasonable accommodation,
as a result of any physical or mental
condition. Notwithstanding the foregoing, if Party B’s death or
disability was caused during the performance of his duties under this
Contract, compensation to Party B or Party B’s heirs shall be subject to
the Labor Laws.
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6
11.
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NON-COMPETITION AND
NON-SOLICITATION
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11.1
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As
Party B knows, Party B will be in possession of confidential information
of Party A during Party B’s employment. To protect Party A’s
confidential information, which Party A views as one of its material
assets, and in consideration of Party B’s employment with Party A, Party B
agrees that Party B will not, in the geographic market in which Party B
worked on behalf of Party A immediately preceding Party B’s termination of
employment, without the prior written consent of Party A, for a period of
one (1) year after the termination of Party B’s employment (however that
termination occurs):
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(a)
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engage
in or carry on, directly or indirectly, as an owner, employee, agent,
associate, consultant or in any other capacity, in any business or
activity involved in the development, manufacture, sale, marketing,
distribution, or other activity involving fresh soybean products,
vacuum-packed soybean products and/or soybean beverages. To
“engage in or carry on” shall mean to have ownership in such business or
consult, work in, direct or have responsibility for any area of such
business, including but not limited to the following
areas: operations, sales, marketing, manufacturing, procurement
or sourcing, purchasing, customer service, distribution, product planning,
research, design or development. Ownership by Party B, as a
passive investment, of less than 2% of the outstanding shares of capital
stock of any corporation listed on a national securities exchange will not
constitute a breach of this Section
11.1(a);
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(b)
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solicit,
canvass, approach or accept any approach from or deal with any person who
was at any time during the last twelve (12) months of Party B’s service
with Party A, a client of Party A;
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(c)
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intentionally
interfere in any way with the business relationship between each of Party
A, its related group companies, and their clients, customers,
manufacturers or suppliers; or
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(d)
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induce
or assist in the inducement of any employee of Party A, who is an employee
of Party A at the time of termination of Party B’s employment with Party
A, to leave their employment with Party
A.
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11.2
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Party
B understands and acknowledges that each restriction specified in this
clause is, under the circumstances, reasonable and necessary to protect
Party A’s legitimate proprietary interests. In the event that
any of the clauses is deemed unreasonable by the court, it will be
enforced to the extent that it is adjudged
reasonable.
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11.3
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For
avoidance of doubt, Party B acknowledges that his remunerations as set
forth in Article 4 hereof has included the extra consideration for the
agreement on this non-competition and non-solicitation clause, Party B has
no right to claim any additional compensation for compliance with his
non-competition obligations.
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7
12.
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PARTY B’S
WARRANTIES
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12.1
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Party
B warrants that all personal information (including the employment
history, educational background and health record) he has provided to
Party A is true, accurate and
complete.
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12.2
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Except
for the Prior Employment Contract, Party B warrants that at the time of
signing this Contract, he does not have any un-terminated employment
contract with other employers and there do not exist any obligations or
restrictions that may affect the employment of Party B by Party
A.
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13.
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MISCELLANEOUS
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13.1
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The
provisions of this Contract are severable and if any provision is held to
be invalid or unenforceable by a court of competent jurisdiction, then
such invalidity or unenforceability shall not affect the remaining
provisions of this Contract.
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13.2
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Party
B’s employment with Party A and the terms of this Contract shall be
governed by and construed in accordance with the laws of
China.
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13.3
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Any
disputes, claims or controversies arising out of or in connection with
this Contract shall be resolved in accordance with the relevant provisions
of the Labor Law of China.
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13.4
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This
Contract is made out in two originals and each party will have one. Both
originals shall be of equal legal
effect.
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13.5
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This
Contract contains the entire agreement of the parties relating to the
subject matter of this Contract and supersedes all prior agreements and
understandings with respect to such subject matter, and the parties hereto
have made no agreements, representations or warranties relating to the
subject matter of this Contract that are not set forth herein or in the
other agreements mentioned herein.
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13.6
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With
the exception of amendments or modifications made pursuant to Section 13.1
of this Contract, no amendment or modification of this Contract shall be
deemed effective unless made in writing signed by the parties
hereto. Party B may not assign this Contract, in whole or in
part, without Party A’s prior written consent. Upon the
termination of this Contract for any reason, the provisions of this
Contract that by their terms survive such expiration or termination shall
continue in effect and will bind each of the parties according to the
terms thereof. No term or condition of this Contract shall be
deemed to have been waived, nor shall there be any estoppel to enforce any
provision of this Contract, except by a statement in writing signed by the
party against whom enforcement of the waiver or estoppel is
sought. Any written waiver shall not be deemed a continuing
waiver unless specifically stated, shall operate only as to the specific
term or condition waived and shall not constitute a waiver of such term or
condition for the future or as to any act other than that specifically
waived.
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8
IN WITNESS WHEREOF, this
Contract is signed and executed by Party A, Party B and Party C on the date
first above written.
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Legal
Representative
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Party
B: Zhao Benxi
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Party
C: Shandong Soy Bean Process Food Co., Ltd.
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Legal
Representative
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