EMPLOYMENT AGREEMENT
Exhibit
99.7
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is entered into as of July 20, 2007 by and between Songzai
International Holding Group Inc., a Nevada corporation (the
“Company”), and Xxxxxx Xxxxx (the “Employee”).
The
preceding recitals are hereby incorporated by this reference. The
term of Employee’s employment with the Company hereunder (the “Term”) shall
commence no later than August 1, 2007 (the “Effective Date”) and,
unless earlier terminated pursuant to Section 5 below, shall continue for a
period ending on July 31, 2008.
2.1 Position. During
the Term, Employee shall be employed as Part Time Chief Financial Officer of the
Company. Immediately upon termination of Employee’s employment for
any reason, Employee shall be deemed to have concurrently resigned from all
offices and positions he then holds with the Company or any subsidiary or
affiliate, including the parent, of the Company.
2.2 Duties. Subject to the
supervision and control of the Board of Directors of the Company (the “Board”)
and the Chief Executive Officer of the Company (the “CEO”), Employee shall
prepare financial statements and footnotes for the company according to US GAAP
for Company’s quarterly and annual filings with SEC, and other event driven SEC
filings such as 8-K, advising the Company on accounting systems and internal
control over financial reporting.
3.1 Base
Salary. During the Term,
as compensation for his services hereunder, Employee shall receive a salary at
the annualized rate of Twenty Two Thousand Dollars ($22,000) per year (“Base
Salary”), which shall be paid on the first day of each month by wire
transferring to the bank account.
4.1 Expenses. During the Term,
the Company shall reimburse Employee for any reasonable and necessary expenses
incurred by his as is standard Company policy, including travel expense to
China, meals and lodging expense in China.
(a) The
Company may terminate Employee’s employment hereunder for Cause (as defined
below). Such termination shall be effected by written notice thereof
delivered by the Company to Employee, indicating in reasonable detail the facts
and circumstances alleged to provide a basis for such termination, and shall be
effective as of the date of such notice in accordance with Section 12
hereof. “Cause” shall mean (i) Employee’s continued failure to
perform the material duties or responsibilities of his position with the
Company, its parent or any subsidiary or affiliate and timely carry out any
lawful directive prescribed by the Board in accordance with this Agreement other
than any such failure resulting solely from Employee’s ill health or Total
Disability (as defined in Section 5.4(a) below) but only if such failure
continues for a period of fifteen (15) days after receipt of a notice of
material breach from the Company; (ii) the commission by Employee of a
material act of fraud, dishonesty or other material misconduct; or
(iii) any other material violation of the provisions of this Agreement
(provided, that with respect to any violation of this subsection (iii) that is
reasonably subject to cure, Employee shall have the right, within ten (10)
business days after receipt of notice from the Board specifying the
circumstances of such material violation and the proposed cure thereof, if
curable, to cure such event or circumstance giving rise to the material
violation, in the event of which such current event or circumstance shall be
deemed to not constitute Cause hereunder).
(b) In
the event the Company terminates Employee’s employment hereunder for Cause,
Employee shall be entitled to receive (i) all amounts of accrued but unpaid
Base Salary, (ii) reimbursement for reasonable and necessary expenses
incurred by Employee through the date of notice of such termination, to the
extent otherwise provided under Section 4.2 above All other rights of
Employee and, all obligations of the Company hereunder or otherwise in
connection with Employee’s employment with the Company shall terminate effective
as of the date of such termination of employment, except as provided in Section
5.6 below.
(a) Employee
may terminate his employment hereunder without Good Reason (as defined
below). Such termination shall be effected by written notice thereof
delivered by Employee to the Company and shall be effective upon fifteen (15)
days’ written notice to the Company; provided, however, that following receipt
of such notice Company may terminate Employee prior to the end of such fifteen
(15) day period upon payment of Employee’s Accrued Benefits through the end of
such period. For purposes of this Agreement, “Good Reason” shall mean
(i) the occurrence of any material adverse alteration in the nature or
status of Employee’s responsibilities or the assignment to Employee of any
duties inconsistent with his status as Chief Executive Officer; (ii) any
other material breach of the provisions of this Agreement; or (iii) failure
by the Company to honor the indemnification provisions as stated in Section 13.1
herein (provided, that with respect to any violation of subsection (i), (ii) or
(iii) that is reasonably subject to cure, the Company shall have the right,
within ten (10) business days after receipt of notice from Employee specifying
the circumstances of such material violation and the proposed cure thereof, if
curable, to cure such event or circumstance giving rise to the material
violation, in the event of which such current event or circumstance shall be
deemed to not constitute Good Reason hereunder);
(b) In
the event of Employee’s termination of employment by Employee without Good
Reason, Employee shall be entitled to receive the Accrued
Benefits. All other rights of Employee and, all obligations of the
Company hereunder or otherwise in connection with Employee’s employment with the
Company shall terminate effective as of the date of such termination of
employment, except as provided in Section 5.6 below.
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5.3
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(a) Employee’s
employment hereunder may be terminated during the Term by the Company other than
for Cause, death or Total Disability or by Employee for Good
Reason. Any termination by the Company pursuant to this Section 5.3
shall be effected by written notice thereof and shall be effective upon thirty
(30) days written notice thereof. Any termination by Employee for
Good Reason shall be effected by written notice thereof, indicating in
reasonable detail the facts and circumstances alleged to provide a basis for
such termination delivered by Employee to the Company, and shall be effective
upon thirty (30) days’ written notice to the Company.
(b) In
the event that Employee’s employment hereunder is terminated during the Term by
the Company other than for Cause, death or Total Disability or by Employee for
Good Reason, Employee shall be entitled to receive the Accrued
Benefits.
(a) The
Company may terminate Employee’s employment hereunder by reason of Employee’s
death or Total Disability. Such termination shall be effective
immediately in the event of Employee’s death and upon thirty (30) days’ written
notice to Employee in the event of Total Disability. “Total
Disability” shall mean any physical or mental disability that, with or without
accommodation by the Company, prevents Employee from substantially performing
his duties under this Agreement for a period of not less than ninety (90) days
in any 12-month period or which is expected to be of permanent
duration.
(b) In
the event that Employee’s employment with the Company is terminated by reason of
Employee’s death or Total Disability, Employee or Employee’s estate, as the case
may be, shall be entitled to receive (i) the Accrued Benefits,
(ii) continued payment of the Base Salary for a period of one year
following the date of termination of employment and (iii) any other benefits
payable under the then current disability and/or death benefit plans, as
applicable, in which Employee is a participant. All other rights of
Employee and, all obligations of the Company hereunder or otherwise in
connection with Employee’s employment with the Company shall terminate effective
as of the date of such termination of employment, except as provided in Section
5.6 below.
5.5 Termination
Following a Change in Control. In the event of a
termination of Employee’s employment hereunder by Employee or the Company within
six (6) months following a Change in Control (as defined below), Employee shall
be entitled to receive (i) the Accrued Benefits and (ii) continued
payment of the Base Salary and Guaranteed Bonus for a period of one year
following the date of termination of employment. In addition, upon
such Change of Control, all stock options granted hereunder and then still
unvested shall immediately vest. All other rights of Employee and all
obligations of the Company hereunder or otherwise in connection with Employee’s
employment with the Company shall terminate effective as of the date of such
termination of employment except as provided in Section 5.6
below. For purposes of this Section 5.5, “Change in Control” will
mean (i) any sale of all or substantially all of the assets of the Company; (ii)
the acquisition, directly or indirectly (and including through any merger or
consolidation), of beneficial ownership of securities of the Company possessing
more than fifty percent of the total combined voting power of all outstanding
securities of the Company by an person or entity (or “group”) of affiliated
persons or entities within the meaning of Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended; or (iii) a public offering of the Company’s
securities involving sale or issuance of more than 50% of the Company’s total
shares outstanding immediately prior to the public offering.
5.6 Survival. In the event of
any termination of Employee’s employment for any reason, Employee and the
Company nevertheless shall continue to be bound by the terms and conditions set
forth in Sections 6 through 11 below, which shall survive the expiration of the
Term. The termination of Employee’s employment for any reason shall
not affect any right to indemnification for any legal and proper actions taken
by Employee within the scope of, and in accordance with, Employee’s duties
hereunder.
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5.7 No Other
Severance or Termination Benefits. Except as
expressly set forth herein, Employee shall not be entitled to any severance or
other benefits (or damages in respect thereof) upon termination of employment
with the Company under any circumstances and for any or no reason.
Employee
acknowledges that during the course of his employment with the Company, its
parent, subsidiaries, affiliates and strategic partners, he will be exposed to
documents, agreements and other information (whether in oral, written or
electronic format (including, without limitation, on a computer disk or hard
drive)) regarding the confidential information, affairs and proprietary
information of the Company, its parent, subsidiaries, affiliates, customers,
supplies and strategic partners, including, without limitation, information
about their past, present and future financial information, their products, the
markets for their products, key personnel, past, present or future actual or
threatened litigation, trade secrets, proprietary information, past, current and
prospective customer lists, operations, operational methods, acquisition plans,
prospects, plans for future development of products, expansion plans, know-how,
processes, formulas, procedures, prices, costs, technical data, licensing
arrangements, business relationships, marketing data, developmental work, and
other business affairs and information about the Company and its parent,
subsidiaries, affiliates, customers, suppliers and strategic partners not
generally available to the public (the “Confidential
Information”). In recognition of the foregoing, the Employee
covenants and agrees as follows:
6.1 No
Disclosure or Use of Confidential Information. At no time shall
Employee ever, directly or indirectly, divulge, communicate, disclose, or
otherwise use any Confidential Information for any purpose or reason whatsoever,
unless and until such information becomes generally available in the public
domain or generally known in the industry through no fault, directly or
indirectly, of Employee; provided that,
Employee shall be permitted to properly use Confidential Information as
necessary to perform his duties hereunder.
6.2 Return of
Company Property, Records and Files. Upon the
termination of Employee’s employment at any time and for any reason, or at any
other time the Board may so direct, Employee shall promptly deliver to the
Company at its principal office all of the property and equipment of the
Company, its parent, subsidiaries, affiliates, customers, suppliers, and
strategic partners (including any cell phones, pagers, credit cards, personal
computers, etc.) and any and all documents, records, and files, including any
notes, memoranda, customer lists, reports or any and all other documents,
including any copies thereof, whether in hard copy form or on a computer disk or
hard drive, which relate to, or contain Confidential Information with respect
to, the Company, its parent, subsidiaries, affiliates, customers, suppliers,
strategic partners, successors or assigns, and, or their respective past and
present officers, directors, employees, consultants, agents, advisors or
representatives (collectively, the “Company Property, Records and Files”); it
being expressly understood that, upon termination of Employee’s employment at
any time and for any reason, Employee shall not be authorized to retain any of
the Company Property, Records and Files except as may be required by
law.
Employee
represents, warrants and covenants that he:
(i) will
not, in the course of employment, infringe upon or violate any rights that
Employee knows, or should have known, are proprietary rights of any third party
(including, without limitation, any third party confidential relationships,
patents, copyrights, trademarks, trade secrets, mask works, or other proprietary
rights);
(ii) is
not a party to any agreement with any third party which could prevent or limit
in any way him from fulfilling all of the terms of employment and his
obligations and duties under this Agreement;
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(iii) will
not disclose to the Company, use, or induce the Company to use, any confidential
or proprietary information or documents belonging to others; and
(iv) agrees
to respect any and all valid obligations which he may have, as of the date
hereof, to prior employers or to others relating to confidential information,
inventions, discoveries or other intellectual property which are the property of
those prior employers or others, as the case may be.
Employee
agrees to indemnify and save harmless the Company from any loss, claim, damage,
liabilities, obligations, cost or expense of any kind (including without
limitation, reasonable attorney fees and expenses) to which the Company may be
subjected by virtue of a breach by Employee of the foregoing representations,
warranties, and covenants.
8. Assignment.
The
rights and benefits of Employee under this Agreement may not be anticipated,
assigned, alienated or subject to attachment, garnishment, levy, execution or
other legal or equitable process except as required by law or as agreed to in
writing by the Company. Any attempt by Employee to anticipate,
alienate, assign, sell, transfer, pledge, encumber or charge the same shall be
void. The Company may assign its rights and obligations hereunder, in
whole or in part, (i) to any of the Company’s subsidiaries, affiliates,
strategic partners or parent; or (ii) to any other successor or assign in
connection with the sale of all or substantially all of the Company’s assets or
stock or in connection with any merger, acquisition, combination and/or similar
transaction involving the Company.
9. Notices.
All
notices and other communications under this Agreement shall be in writing and
shall be given by hand delivery, facsimile or nationally recognized overnight
courier, and shall be deemed to have been duly given 1) if delivered by hand, on
the date of such delivery, 2) if delivered by facsimile, on the date of such
delivery, with receipt of appropriate confirmation, and 3) if delivered by
nationally recognized overnight courier, on the business day following dispatch
to the respective persons named below:
| If to the Company: | Songzai International Holding Group Inc. | |
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00000
Xxxxxxx Xxxxx
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Xxxxxx,
Xxxxxxxxxx 00000
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| If to Employee: | Xxxxxx Xxxxx | |
| 000 X Xxxx Xx., #X | ||
| Xxxxxxxx, XX 00000 | ||
| Fax: (000) 000-0000 |
Any party
may change such party’s address or facsimile number for notices by notice duly
given pursuant hereto.
10. General.
10.1 Indemnification. The Company will
indemnify Employee to the full extent permitted by applicable law and provide
coverage with respect to claims relating to his service as a director, officer
or employee of the Company under the Company’s directors and officers insurance
policy. The Company agrees to maintain such policy in effect at all times during
Employee’s term for a coverage amount of no less than $10 Million. Failure to
maintain such policy shall entitle Employee to terminate his employment for Good
Reason under 5.3 herein.
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10.2 Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada without giving
effect to the conflict of laws principles thereof.
10.3 Arbitration. Except as
necessary for the Company and its parent, subsidiaries, affiliates, strategic
partners, successors or assigns or for Employee to specifically enforce or
enjoin a breach of this Agreement (to the extent such remedies are otherwise
available), the parties agree that any and all disputes that may arise in
connection with, arising out of or relating to this Agreement, or any dispute
that relates in any way, in whole or in part, to Employee’s employment with the
Company or any parent, subsidiary, affiliate or strategic partner, the
termination of that employment or any other dispute by and between the parties
or their parents, subsidiaries, affiliates, strategic partners, successors or
assigns, shall be submitted to binding arbitration in Los Angeles, California
according to the rules and procedures of the American Arbitration
Association. The parties agree that the parties shall each bear his
or its own attorneys’ fees and costs in connection with any such
arbitration. This arbitration obligation extends to any and all
claims that may arise by and between the parties or their parents, subsidiaries,
affiliates, strategic partners, successors or assigns, and expressly extends to,
without limitation, claims or causes of action for wrongful termination,
impairment of ability to compete in the open labor market, breach of an express
or implied contract, breach of the covenant of good faith and fair dealing,
breach of fiduciary duty, fraud, misrepresentation, defamation, slander,
infliction of emotional distress, disability, loss of future earnings, and
claims under the California constitution, the United States Constitution, and
applicable state and federal fair employment laws, federal and state equal
employment opportunity laws, and federal and state labor statutes and
regulations, including, but not limited to, the Civil Rights Act of 1964, as
amended, the Fair Labor Standards Act, as amended, the Americans With
Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as
amended, the Employee Retirement Income Security Act of 1974, as amended, the
Age Discrimination in Employment Act of 1967, as amended, and any other state or
federal law.
10.4 Entire
Agreement. This Agreement
(including the Schedule, attached hereto) sets forth the entire understanding of
the parties relating to Employee’s employment with the Company and cancels and
supersedes all agreements, arrangements and understandings relating thereto made
prior to or on the date hereof, whether written or oral, between the Employee
and the Company and/or any parent, subsidiary or affiliate thereof.
10.5 Amendments;
Waivers. This Agreement
may be amended, modified, superseded, canceled, renewed or extended, and the
terms or covenants hereof may be waived, only by a written instrument executed
by the parties hereto, or in the case of a waiver, by the party waiving
compliance. No delay of or omission in the exercise of any right, power or
remedy accruing to any party as a result of any breach or default by any other
party under this Agreement shall impair any such right, power or remedy, nor
shall it be construed as a waiver of or acquiescence in any such breach or
default, or of any similar breach or default occurring later. No waiver by any
party of the breach of any term or covenant contained in this Agreement, whether
by conduct or otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this
Agreement.
10.6 No
Conflict with Other Agreements. Employee
represents and warrants that neither his execution of this Agreement nor the
full and complete performance of his obligations hereunder will violate or
conflict in any respect with any written or oral agreement or understanding with
any person or entity.
10.7 Successors
and Assigns. This Agreement
shall inure to the benefit of and shall be binding upon the Company (and its
successors and assigns) and Employee and his heirs, executors and personal
representatives.
10.8 Withholding. Notwithstanding
any other provision of this Agreement, the Company may withhold from amounts
payable under this Agreement all federal, state, local and foreign taxes that
are required to be withheld by applicable laws or regulations, including,
without limitation, such taxes that are required to be withheld in connection
with Section 3.3.
10.9 Reformation
and Severability. In case any provision of this Agreement
shall be held to be invalid, illegal or unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal and enforceable but
so as to most nearly retain the intent of the parties, and if such modification
is not possible, such provision shall be severed from this Agreement, and in
either case the validity, legality and enforceability of the remaining
provisions of this Agreement and the future application of such provision shall
not in any way be affected or impaired thereby.
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10.10 Survival. This
Agreement shall survive the termination of Employee’s employment and the
expiration of the Term to the extent necessary to give effect to its
provisions.
10.11 Captions. The headings of
this Agreement are inserted for convenience only, shall not constitute a part of
this Agreement or be used to construe or interpret any provision
hereof.
10.12 Counterparts. This Agreement
may be executed by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be an original but all such counterparts
together shall constitute one and the same instrument.
10.13 Representation
by Counsel. Employee
acknowledges that the Company has not rendered to him any advice as to any terms
and conditions of this Agreement. Employee has been advised to seek
and obtain his own advice of counsel concerning the terms and conditions of this
Agreement and is relying on such advice.
[REST OF
PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Employee
and the Company have executed this Agreement as of the date first
written above.
| Songzai International Holding Group Inc. | ||
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/s/
Xxxxxxx Xx
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| By:Xxxxxxx Xx | ||
| Its: President | ||
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/s/
Xxxxxx Xxxxx
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Xxxxxx
Xxxxx
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