AMENDMENT TO EMPLOYMENT AGREEMENT
EXHIBIT
10.10
AMENDMENT
TO EMPLOYMENT AGREEMENT
WHEREAS, Kingold Jewelry, Inc. (the
“Employer”)
and Xxx Xxx (the “Executive”)
have entered into an Employment Agreement, dated as of April 1, 2010 (the “Employment
Agreement”); and
WHEREAS, the Employer and Executive now
desire to amend the Employment Agreement to reflect an agreement between the
parties regarding certain terms of the Employment Agreement; and
WHEREAS, Section 9.3 provides that the
Employment Agreement may be modified or amended only if the amendment is in
writing upon and is signed by both parties.
NOW, THEREFORE, in consideration of the
Executive’s continued service with the Employer, the Employment Agreement is
hereby amended as follows, effective as of January 7, 2011:
1. Sections 3(c) and 3(d) of the
Employment Agreement are deleted in their entirety and amended and restated to
read as follows:
(c) Options. On
or as soon as practicable upon each the first and second anniversary of the
Effective Date and the requisite approval of the Board of Directors of an
employee equity incentive plan, Executive shall be granted 120,000 options to
purchase shares of the Company’s common stock (the “Annual Option Grant”)
pursuant to the terms and conditions of such plan (including approval of such
plan by the Company’s shareholders.) Each Annual Option Grant shall
vest quarterly at a rate of 30,000 options at the end of each three month period
of employment.
(d) Relocation
Allowance. Executive shall
receive a relocation allowance of up to $150,000 to be used for the purpose of
moving from Illinois to New York during the Employment Term, which amount shall
be paid pursuant to the Company’s relocation policies, if any, but in any event
shall be paid no later than March 15th of the year following the year in which
such relocation occurs.
2. Section 4.2 is deleted in its
entirety and amended and restated to state as follows:
4.2 Termination by the Company
without Cause or Resignation by Executive. Following the
Probation Period, the Company may terminate this Agreement at any time without
Cause upon thirty (30) days notice to the Executive and the payment to the
Executive of a lump amount equal to three (3) months’ salary which shall be paid
upon termination. Executive may effect a voluntary termination of
this Agreement at any time upon sixty (60) days notice to the Company, however,
in such event no additional compensation shall be due to
Executive.
3. A
new Section 9.11 is
added as follows:
9.7 Section
409A. This Agreement is intended to comply with, or otherwise
be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended
(the “Code”) and
any regulations and Treasury guidance promulgated thereunder. The
Company shall undertake to administer, interpret, and construe this Agreement in
a manner that does not result in the imposition on the Executive of any
additional tax, penalty, or interest under Section 409A of the
Code. “Termination of employment,” “resignation,” or words of similar
import, as used in this Agreement means, for purposes of any payments under this
Agreement that are payments of deferred compensation subject to Section 409A of
the Code, the Executive's “separation from service” as defined in Section 409A
of the Code. Nothing herein shall be construed as having modified the
time and form of payment of any amounts or payments of “deferred compensation”
(as defined under Treasury Regulation section 1.409A-1(b)(1), after giving
effect to the exemptions in Treasury Regulation sections 1.409A-1(b)(3) through
(b)(12)) that were otherwise payable pursuant to the terms of the Employment
Agreement. If the Company determines in good faith that any provision
of this Agreement would cause the Executive to incur an additional tax, penalty,
or interest under Section 409A of the Code, the Company and the Executive shall
use reasonable efforts to reform such provision, if possible, in a mutually
agreeable fashion to maintain to the maximum extent practicable the original
intent of the applicable provision without violating the provisions of Section
409A of the Code or causing the imposition of such additional tax, penalty, or
interest under Section 409A of the Code.
IN WITNESS WHEREOF, the Employer and
Executive hereby signify their consent to this amendment to the Employment
Agreement.
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EXECUTIVE
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/s/Xxx Xxx
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By:
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/s/ Xxxxxxx Xxx
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Xxx
Xxx
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Xxxxxxx
Xxx
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Chairman
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| Date: |
January 7, 2011
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Date: |
January 7,
2011
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EXECUTIVE
EMPLOYMENT AGREEMENT
This
Executive Employment Agreement (the “Agreement”)
is made as of April 1, 2010 (the “Effective
Date ”), by and between Kingold Jewelry, Inc., a Delaware corporation
(the “
Company ”) and Xxx Xxx, an individual residing at 000 Xxxx Xxxxx, Xxx,
Xxxxxxx Xxxxx, XX 00000 (“ Executive
”).
WHEREAS,
the Company is publicly traded in the United States and is in need of a
executive with significant experience in finance and Securities and Exchange
Commission reporting requirements; and
WHEREAS,
Executive has experience in such fields; and
WHEREAS,
the Company wishes to engage Executive to serve as its Chief Financial
Officer.
NOW
THEREFORE, in consideration of the premises and the covenants contained herein,
the parties hereby agree as follows:
1. Duties and
Position. During the term of this Agreement, Executive agrees
to be employed by and to serve the Company as its Chief Financial
Officer. The Company agrees to employ and retain Executive in such
capacity and Executive accepts and agrees to such employment, subject to the
general supervision, advice and direction of the Chairman of the
Company. Executive shall perform such duties as are customarily
performed by a Chief Financial Officer of a publicly traded United States
company. Executive shall devote substantially all of his business
time to the performance of his duties as Chief Financial Officer.
2. Term. The
term of this Agreement shall begin on April 1, 2010 (the “Effective Date”) and
shall continue until April 1, 2013, unless earlier terminated by either party in
accordance with the terms hereof (such period to be referred to herein as the
“Employment Term”).
3. Salary, Benefits and
Options.
(a) Base
Salary. The Executive shall be paid a salary of US$135,000 per annum,
payable monthly in the amount of US$11,000 per month for the first eleven months
of each one (1) year period of the Employment Term and US$14,000 for the twelfth
month of each one (1) year period of the Employment Term.
(b)
Benefits. Executive shall be eligible to participate in all benefit
plans generally available to employees who are executives.
(c)
Options. Upon each of the Effective Date and the first and second anniversary of
the Effective Date, Executive shall be granted 120,000 options to purchase
shares of the Company’s common stock (an “Annual Option Grant”), at an exercise
price equal to the closing price for the Company’s stock on each such issuance
date. Each Annual Option Grant shall vest quarterly at a rate of
30,000 options at the end of each three month period of
employment. Upon the termination of Executive’s employment with the
Company, any unvested options shall be immediately cancelled and all vested
options shall be subject to cancellation pursuant to the terms of the Company’s
employee incentive option plan.
(d)
Relocation Allowance. Executive shall receive a relocation allowance of up to
$20,000 to be used for the purpose of moving from Illinois to such other
location as mutually agreed.
(e)
Bonus. Executive shall be eligible, from time to time, to receive, at
the sole discretion of the Board of Directors, bonuses pursuant to the Company’s
Board of Directors pursuant to any Company bonus plan or bonus pool which may be
adopted by the Company.
4. Termination.
4.1 Termination
During Probation Period. During the ninety (90) period following the
Effective Date (the “Probation Period”), the Company shall have the right to
terminate this Agreement for any reason without any additional compensation to
Executive.
4.2 Voluntary
Termination. Following the Probation Period, the Company may
terminate this Agreement at any time upon notice to the Executive and the
payment to the Executive of any amount equal to three (3) months’
salary. Executive may effect a voluntary termination of this
Agreement at any time upon sixty (60) days notice to the Company, however, in
such event no additional compensation shall be due to Executive.
4.3 Termination
For Cause. The Company shall have the right to terminate this
Agreement “For Cause”, at any time, by giving the Executive a notice of
termination “For Cause”, stating in such notice the reasons constituting such
cause upon which this Agreement shall be terminated upon the delivery of such
notice. For purposes hereof "For Cause”: mean (a) Executive’s
inability to timely perform his duties as the Company’s Chief Financial Officer;
(b) habitual intoxication which materially affects the Executive's performance;
(c) drug addiction; (d) Executive is found guilty of fraud, embezzlement,
defalcation, dishonesty, or commission of an act of moral turpitude which
results in either civil or criminal liability; (e) Executive’s intentional
failure, or willful refusal without reasonable reason, to perform his duties
under this Agreement or the reasonable and proper instructions of the Chairman,
which breach or failure is not cured by Executive within fourteen (14) days
following notice by the Company to Executive requiring remedy of such breach;
(f) Executive deliberately causes harm to the Company’s business affairs or
breaches his duty of trust or fiduciary duties to the Company or its affiliates;
or (g) Executive breaches the confidentiality and/or non-competition provisions
of this Agreement, provided, however, that with respect to a breach which is not
material only to the extent that such breach was not cured within fourteen (14)
days following notice by the Company to Executive requiring remedy of such
breach. In the event that, this Agreement is terminated by
the Company “For Cause” the Company shall not have any further obligations or
liability to Executive under this Agreement subsequent to the actual date of
Executive’s termination.
5. Non-Disclosure.
5.1 Non-Disclosure. The
Executive recognizes and acknowledges that he will have access to certain
confidential information of the Company and that such information constitutes
valuable, special and unique property of the Company. The Executive agrees that
he will not, for any reason or purpose whatsoever, during or after the term of
his employment, use any of such confidential information or disclose any of such
confidential information to any party without express authorization of the
Company, except as necessary in the ordinary course of performing his duties
hereunder. The obligation of confidentiality imposed by this subparagraph shall
not apply to information which appears in issued patents or printed publications
or which otherwise becomes generally known in the industry through no act of the
Executive in breach of this Agreement.
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5.2 Inventions,
Designs and Product Developments. All inventions, discoveries,
concepts, improvements, formulas, processes, devices, methods, innovations,
designs, ideas and product developments (collectively, the "Developments"),
developed or conceived by Executive, solely or jointly with others, whether or
not patentable or copyrightable, at any time during the Employment Term and all
of the Executive's right, title and interest therein, shall be the exclusive
property of the Company. The Executive hereby assigns, transfers and conveys to
the Company all of his right, title and interest in and to any and all such
Developments. Executive shall disclose fully, as soon as practicable and in
writing, all Developments to the Board of Directors of the Company. At any time
and from time to time, upon the request of the Company, the Executive shall
execute and deliver to the Company any and all instruments, documents and
papers, give evidence and do any and all other acts which, in the opinion of
counsel for the Company, are or may be necessary or desirable to document such
transfer or to enable the Company to file and prosecute applications for and to
acquire, maintain and enforce any and all patents, trademark registrations or
copyrights under United States or foreign law with respect to any such
Developments or to obtain any extension, validation, reissue, continuance or
renewal of any such patent, trademark or copyright. The Company will be
responsible for the preparation of any such instruments, documents and papers
and for the prosecution of any such proceedings and will reimburse the Executive
for all reasonable expenses the Executive incurs upon authorization of the Board
of Directors of the Company.
5.3 Corporate
Opportunities. In the event that during the term of this Agreement,
any business opportunity directly related to the Company’s business shall come
to Executive’s knowledge, Executive shall promptly notify the Company’s Chairman
of such opportunity. The Executive shall not appropriate for himself or for any
other person other than the Company, any such opportunity, except with the
express written consent of the Board of Directors, in advance.
5.4 Survival. The
provisions of this Section 5 shall survive the termination of this
Agreement.
6. Non-Competition. The
Executive agrees that during the term of this Agreement and for a period of one
(1) year thereafter, the Executive shall not, unless acting pursuant hereto or
with the prior written consent of the Board of Directors of the Company,
directly or indirectly:
(a) solicit
business from or perform services for, any persons, company or other entity
which at any time during the Executive's employment by the Company is a client,
customer of the Company or prospective customer of Company if such business or
services are of the same general character as those engaged in or performed by
the Company (as used herein, the term “prospective customer” shall mean any
persons, company or other entity with which the Company had conducted sales or
marketing activities within the prior six (6) months);
(b) solicit
for employment or in any other fashion hire any of the senior management of the
Company;
(c) own,
manage, operate, finance, join, control or participate in the ownership,
management, operation, financing or control of, or be connected as an officer,
director, Executive, partner, principal, agent, representative, consultant or
otherwise with any business or enterprise engaged in the business of designing
and manufacturing gold jewelry (the “Business”);
(d) use
or permit his name to be used in connection with, any business or enterprise
engaged in the Business;
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(e) use
the name of the Company or any name similar thereto, but nothing in this clause
shall be deemed, by implication, to authorize or permit use of such name after
expiration of such period; or
(f) The
provisions of this Section 6 shall survive the termination of this
Agreement.
7. Compliance With Employer’s
Rules. The
employment relationship between the parties shall be governed by the general
employment policies and procedures of the Company, including (but not limited
to) those relating to the protection of confidential information and assignment
of inventions; provided, however, that when the terms of this Agreement differ
from or are in conflict with the Company’s general employment policies or
procedures, this Agreement shall control. Executive agrees to abide
by all of the Company’s policies and procedures in effect from time to
time.
8. Return of Property. Upon termination of
Executive’s employment, Executive shall deliver all property (including keys,
records, notes, lists, data, memoranda, models, and equipment) that is in the
Executive’s possession or under the Executive’s control which is the Company’s
property or related to the Company’s business.
9. Miscellaneous.
9.1 Notices. Every
notice or other communication required or contemplated by this Agreement by
either party shall be delivered to the other party by personal delivery at the
address set forth on the signature page below or by e-mail at the address set
forth on the signature page below.
9.2 Entire
Agreement. This Agreement supersedes all
prior agreements, and the terms set forth herein represent the entire
understanding and agreement between the Company and Executive regarding
compensation, employment, status and position. It is further
understood that the Company’s policies, procedures and rules may be amended or
changed at any time by the Company.
9.3 Amendment. This Agreement may be
modified or amended only if the amendment is made in writing and is signed by
both parties. This Agreement cannot be altered in any way by any oral
statement(s) made by Executive or the Company.
9.4 Severability. If any provision(s) of
this Agreement shall be held to be invalid or unenforceable for any reason, the
remaining provisions shall continue to be valid and enforceable. If a
court finds that any provision(s) of this Agreement is invalid or unenforceable,
but that by limiting such provision it would become valid or enforceable, then
such provision shall be deemed to be written, construed, and enforced as so
limited.
9.5 No
Waiver. The failure
of either party to enforce any provision of this Agreement shall not be
construed as a waiver or limitation of that party’s right subsequently to
enforce and compel strict compliance with every provision of this
Agreement.
9.6 Applicable
Law. This Agreement
shall be governed by the laws of the State of New York without regard to
conflict of laws principles.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
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COMPANY
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EXECUTIVE
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By:
/s/ Jia Zhi Hong
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/s/
Xxx Xxx
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Title:
Chairman
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