Executive Employment Agreement for Joseph L. Longever
for Xxxxxx X.
Xxxxxxxx
THIS AGREEMENT is made as of the 23rd day of
November, 2009, by and between Fushi Copperweld, Inc., a Nevada corporation
(the “Company”), and Xxxxxx X. Xxxxxxxx, an individual
(“Executive”).
WITNESSETH:
WHEREAS, the Company is engaged in the manufacture,
distribution, and sale of copper-clad bimetallic wire and strand products;
and
WHEREAS, the Company desires to employ Executive as a
senior executive officer of the Company as of November 23, 2009 (the “Effective Date”), and Executive
desires to accept such employment on the terms and conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the mutual
promises contained herein, the parties agree as follows:
1. Employment. The
Company hereby employs Executive, and Executive hereby accepts employment with
the Company on the terms and conditions hereinafter set forth.
2. Term of
Employment. The initial term of employment under this
Agreement shall be for a five-year period commencing on the Effective Date and
terminating on the fifth anniversary of the Effective Date (the “Term”);
provided that such Term shall be automatically extended for an additional
one-year period upon the same terms and conditions contained herein on the
expiration date of the Initial Term and on any additional term (each period
being the “Term”) unless a written notice of non-renewal is given by either
party at least ninety (90) days before the expiration date of the then current
Term.
3. Nature of
Employment. Executive is employed as Co-Chief Executive
Officer of the Company, and consistent with such position, Executive shall,
subject to the direction of the Board of Directors of the Company (“Board”),
direct and manage the affairs of the Company as assigned. Executive
shall report to and be responsible solely to the Board. Executive
agrees to serve as an executive officer or director of other subsidiaries of the
Company at the request of the Board without additional
compensation. During the Term (including any extensions or renewals
thereof), Executive shall have no other employment or provide services to any
other person other than the Company and its subsidiaries without the prior
written consent of the Board. Accordingly, Executive agrees to devote
his full working time to the business of the Company; provided, however, nothing
herein contained shall restrict or prevent Executive from owning and dealing in
stocks, bonds, securities, real estate, commodities, or other investment
properties for his own benefit or the benefit of his family. Further,
nothing herein contained shall restrict or prevent Executive, subject to the
prior approval of the Board, from serving on the board of directors of any
entity, including any charitable, religious or civic entity, which does not
directly or indirectly compete with the Company and does not materially
interfere with his duties and responsibilities for the Company.
4. Compensation.
(a) Annual Base
Salary. Executive’s annual salary rate for the services
rendered on behalf of the Company and its subsidiaries during the Term shall be
no less than $225,000 per year, payable in equal bi-monthly
installments. From time to time during the Term, Executive’s base
salary may be increased at the discretion of the Board, but shall in no event be
decreased from the amount of the base salary in effect at that
time. The Board shall review Executive’s base salary at least on an
annual basis.
(b) Annual Cash
Bonus. In addition to Executive’s base salary, Executive shall
be entitled to participate during the Term in an annual cash bonus plan
generally available to senior executives of the Company, including any cash
bonus plans and equity incentive plans sponsored by the Company. Any
annual cash bonus shall be paid to Executive within two and one-half (2.5)
months following the end of the fiscal year of the Company in which the
Executive first becomes entitled to such bonus. Executive shall be
entitled to payment of any annual cash bonus only if the Executive is employed
by the Company on the date that the bonus is paid.
(c) Equity
Awards. The Board has approved a non-qualified stock option
(the “Option”) to be granted to Executive for 200,000 shares of common stock of
the Company (“Shares”) as of the Effective Date under the Fushi Copperweld, Inc.
2007 Stock Incentive Plan (the “Stock Incentive Plan”) and a stock option
agreement to be provided by the Company. If Executive remains
employed with the Company or its subsidiaries on the applicable vesting dates,
the Option shall vest in tranches on the dates and with the exercise price per
Share set forth on Exhibit A attached hereto. The Board has also
approved a restricted stock award to Executive for 50,000 Shares as of the
Effective Date under the Stock Incentive Plan and a restricted stock agreement
to be provided by the Company. If Executive remains employed with the
Company or its subsidiaries on the applicable vesting dates, the restricted
Shares shall vest in tranches on the dates set forth on Exhibit A-1 attached
hereto.
5. Expenses. Executive
is authorized to incur reasonable expenses in connection with the business of
the Company, including reasonable expenses for business travel and similar
items, in accordance with the Company’s business expense policy in effect from
time to time. The Company will reimburse Executive for all such
expenses during any calendar year upon the presentation by Executive, from time
to time, of an itemized account of expenditures applicable to such calendar
year, but in no event later than the end of the calendar year following the
calendar year in which such expenditures occurred. Executive shall be
authorized to travel in business class and when not available, in first class,
at Company expense, for air travel outside the 48 contiguous states of the
United States or any air travel over three hours in duration.
6. Vacation. Executive
shall be entitled to paid vacations during each calendar year of the Term at
such times and for such duration as may be determined by the Board, taking into
consideration the needs and requirements of the Company for Executive’s
services; provided, however, the minimum paid vacation to which Executive shall
be entitled in any calendar year shall be three (3) weeks, and Executive shall
not be entitled to payment for any unused vacation as of the end of any calendar
year.
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7. Additional
Benefits. During the Term, the Company shall pay for and
provide Executive with a term life insurance policy in an amount of $225,000 at
standard, non-smoking insurance premium rates (or such lesser amount that can be
provided at the same cost as such policy). During the Term, the
Company shall cover Executive and, subject to the terms of the applicable plan,
his eligible dependents shall have the right to participate in, any executive
employee pension or welfare benefit plans provided by the Company to its
U.S.-based officers generally, including any group life, hospitalization,
medical, dental, accidental death and disability, long-term disability income
replacement insurance, and retirement plans.
8. Death During
Employment. If Executive dies during the Term, the Company
shall pay to the estate of Executive any accrued and unpaid salary and any
accrued and unpaid bonus for any prior fiscal year of the
Company. This Agreement shall thereupon terminate, and the Company
shall have no further obligation to the estate of Executive.
9. Permanent Disability During
Employment. If during the Term Executive’s employment with the
Company and its subsidiaries is terminated on account of his becoming
permanently disabled, the Company shall pay to Executive any accrued and unpaid
base salary to which he would otherwise be entitled by the end of the month in
which Executive becomes permanently disabled. Thereafter, Executive
shall continue to receive his then base salary, at its regular payment times,
minus any payments provided by the Company’s benefit plans (including disability
benefits paid pursuant to Section 7 above) and by any government sponsored
program, for a six (6) month period from the date of Executive’s permanent
disability. This Agreement shall thereupon terminate and the Company
shall have no further obligation to Executive except as may be provided under
the Company’s long-term disability plans during the term of such disability and
for the payment of any pro rata portion of any bonus or incentive plan
benefit. Permanent disability for purposes of this Agreement shall
mean a physical or mental condition of Executive that renders Executive
incapable of performing the essential duties of his job and which condition
shall be medically determined to be of permanent duration as same is construed
under the Company’s disability plans.
10. Termination for
Cause. The Company may terminate Executive’s employment at any
time “for Cause.” The term “for Cause” shall mean any act or failure
to act on the part of Executive which constitutes: (i) an
unauthorized use or disclosure by Executive of the Company’s confidential
information or trade secrets, which use or disclosure causes material harm to
the Company; (ii) a material breach by Executive of any agreement between him
and the Company; (iii) a material failure by Executive to comply with the
Company’s written policies; (iv) Executive’s indictment of, or plea of “guilty” or “no contest” to, a
felony under the laws of the United States or any state thereof or any foreign
jurisdiction in which the Company conducts business which if occurring in the
United States would constitute a felony under its laws or the laws of any state
thereof; (v) Executive’s gross negligence or willful misconduct that results in
material harm to the Company; or (vi) a continual failure by Executive to
perform assigned duties after receiving written notification of such failure
from the Board. The Company shall be entitled to terminate the
employment relationship hereunder upon thirty (30) days prior written notice to
Executive, which notice shall state the reason for such termination, and during
such notice period Executive shall be removed from his duties and
responsibilities. In the event of a termination for Cause, the
Company shall pay Executive any accrued and unpaid salary and any accrued and
unpaid bonus for any prior fiscal year of the Company, and the Company shall
have no further obligation or liability to Executive under this
Agreement.
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11. Termination For Good
Reason. If any of the following events occurs within thirty
(30) days before or during the twelve (12) months immediately following the
effective date of a “Change in Control” (as hereinafter defined), Executive may
resign from his employment for Good Reason by giving written notice of
resignation within 60 days following such event (but in no case prior to such
Change in Control):
(a) a
material reduction in the scope of Executive’s assigned duties and
responsibilities from those in effect immediately prior to a Change in Control
or the assignment of duties or responsibilities that are inconsistent with
Executive’s status in the Company; provided that the
insertion of an additional layer of management shall not constitute a material
change in scope of Executive’s assigned duties and responsibilities or be
inconsistent with Executive’s status in the Company;
(b) a
reduction by the Company of Executive’s base salary;
(c) the
Company’s requirement that Executive be based anywhere other than the Company’s
office at which he was based prior to the Change in Control if Executive is
required to spend more than two days per week on a regular basis (other than
normal business travel) at a business location not within 50 miles of
Executive’s primary business location as of the Change in Control;
or
(d) the
failure by the Company to continue to provide Executive with benefits
substantially similar to those specified in Section 7 of this Agreement unless
the new owner of the Company or the Company deem it necessary to change such
benefits in order to conform to applicable law.
Any written notice of resignation for
Good Reason shall describe in reasonable detail the circumstances believed to
constitute Good Reason. Notwithstanding Executive’s provision of a
notice of resignation for Good Reason, the Company shall have the right to remedy or cure for a period of
30 days following its receipt of such notice the circumstances described by
Executive as constituting Good Reason and Executive’s resignation shall become
effective on the 31st day following notice to the Company if the Company fails
to remedy or cure the circumstances constituting Good Reason within such 30-day
period.
For purposes of this Agreement, a “Change in Control”
means the date on which the
earliest of the following
events occur:
(a) the
acquisition by any entity, person or group of beneficial ownership, as that term
is defined in Rule 13d-3 under the Securities Exchange Act of 1934, of
outstanding stock of the Company possessing a majority of the total combined
voting power of all outstanding shares of stock of the Company (“Voting
Stock”);
(b) the
merger or consolidation of the Company with one or more corporations as a result
of which the holders of outstanding Voting Stock of the Company immediately
prior to such a merger or consolidation hold less than a majority of the Voting
Stock of the surviving or resulting corporation; or
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(c) the
transfer of substantially all of the property of the Company other than to an
entity of which the Company owns at least 80% of the Voting Stock.
12. Severance upon Termination
Without Cause or for Good Reason. If, during the Term, the
Company terminates Executive’s employment with the Company and its subsidiaries
for any reason other than for Cause or Executive’s death or permanent
disability, or Executive terminates his employment for Good Reason (not
including the Company’s or Executive’s non-renewal of the Term) and Executive
executes and delivers to the Company a valid and effective release of all claims
against the Company and its affiliates in the form provided as Exhibit B hereto,
Executive shall be entitled to receive (i) a lump sum cash payment in the amount
of any accrued and unpaid salary as of his date of termination, (ii) a lump sum
cash payment equal to any accrued and unpaid bonus for any prior fiscal year,
(iii) an amount equal to the sum of (a) 50% of his then current annual base
salary and (b) 50% of the average annual cash bonus payments paid by the Company
to the Executive during the preceding three (3) fiscal years of the Company, and
such sum shall be payable in six (6) substantially equal monthly payments;
provided that each payment is intended to constitute a separate payment within
the meaning of Section 409A of the Internal Revenue Code of 1986, as amended
(“Code”). Further, the Company shall continue the medical and life
insurance benefits which Executive was receiving on the date of his termination
for a period of six (6) months after the date of his termination; provided such
continued coverage shall end on the date Executive has commenced employment
elsewhere and becomes eligible for participation in a similar type of benefit
program of his successor employer. Except as provided in this Section
12, Executive shall not be entitled to any other severance benefits from the
Company or any of its subsidiaries or affiliates, and the Company shall have no
other obligation or liability to Executive under this Agreement. In
the event of termination without Cause, Executive shall be obligated to mitigate
the Company’s obligations to him under this Section 12 and any amounts earned by
Executive subsequent to his termination of employment and during the period of
severance payments hereunder shall serve as an offset to the severance payments
due him by the Company under this Section 12. In the event of
resignation for Good Reason, Executive shall not be obligated in any way to
mitigate the Company’s obligations to him under this Section 12 and any amounts
earned by Executive subsequent to his termination of employment shall not serve
as an offset to the severance payments due him by the Company under this
Section.
In the event the Company willfully and
materially breaches this Agreement and fails to remedy or otherwise cure such
breach or breaches within 30 days following written notice of resignation by
Executive to the Company specifying in reasonable detail such alleged breach or
breaches of this Agreement, Executive shall be deemed to have been terminated
without Cause by the Company on the 31st day
following such notice of resignation. Accordingly, Executive shall be
entitled to receive all payments and benefits due Executive in the event of
termination without Cause, as set forth in this Section 12.
13. Board/Committee
Resignation. Upon termination of Executive’s employment for
any reason, Executive agrees to resign, as of the date of such termination and
to the extent applicable, from the Board (and any committees thereof) and the
board of directors (and any committees thereof) of any of the Company’s
subsidiaries or affiliates.
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14. Property of
Company. Executive agrees that upon the termination of his
employment he will turn over to the Company all property and confidential
information of the Company which has come into his possession while an executive
of the Company.
15. Covenants by
Executive.
(a) Non-competition. During
the Term under this Agreement including any renewals or extensions thereof, and
for a period of twenty-four (24) months thereafter, Executive shall not, without
the prior written approval of the Company, directly or indirectly, engage in any
competitive activity as employer, employee, partner, stockholder, joint
venturer, consultant, director or otherwise, enter into or in any manner take
part in any business or other endeavor which would be in competition with the
Company in the continental United States and mainland China, and to the extent
Executive has or has had direct involvement in the Company’s business activities
in any other jurisdiction, such other jurisdictions as such business is
conducted or, to the knowledge of Executive, proposed to be conducted at the
time of termination.
(b) Respect for Economic
Relationships. Executive will not, during the Term of his
employment under this Agreement including any renewals or extensions thereof,
and for a period of thirty (30) months thereafter, in any fashion, form, or
manner, either directly or indirectly, solicit, interfere with, or endeavor to
entice away from the Company any customer or person, firm or corporation,
regularly dealing with the Company or directly or indirectly interfere with,
entice away, or cause any other entity to employ any other employee of the
Company.
(c) Validity of
Covenants. Executive agrees that the covenants contained in
this Section 15 are reasonably necessary to protect the legitimate interests of
the Company, are reasonable with respect to time, territory and scope, and do
not interfere with the interests of the public. Executive further
agrees that the descriptions of the covenants contained in this Section 15 are
sufficiently accurate and definite to inform Executive of the scope of such
covenants. Executive agrees that the Term, increase in base salary
represented by Section 4(a), and termination provisions contained in Sections 2,
10, 11, and 12 above constitute fully adequate and sufficient consideration for
the covenants contained in Sections 15 and 17 of this Agreement.
(d) Specific
Performance. Executive agrees that a breach or violation of
any of the covenants under this Section 15 will result in immediate and
irreparable harm to the Company in an amount which will be impossible to
ascertain at the time of the breach or violation and that the award of monetary
damages will not be adequate relief to the Company. Therefore, the
failure on the part of Executive to perform all of the covenants established by
this Section 15 shall give rise to a right of the Company to obtain enforcement
of this Section 15 in a court of equity by a decree of specific performance or
other injunctive relief. This remedy, however, shall be cumulative
and in addition to any other remedy the Company may have.
(e) Survival of
Covenants. The provisions of this Section 15 shall survive the
termination of this Agreement and Executive’s employment for any
reason.
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16. Patent, Trade Dress and
Trademark Assignment. If Executive creates, invents, designs,
develops, contributes to or improves any works of authorship, inventions,
intellectual property, materials, documents or other work product (including
without limitation, research, reports, software, databases, systems,
applications, presentations, textual works, content, or audiovisual materials),
either alone or with third parties, at any time during Executive’s employment by
the Company and within the scope of such employment and/or with the use of any
Company resources, without additional consideration Executive hereby irrevocably
assigns, transfers and conveys, to the maximum extent permitted by applicable
law, all rights, title, and interest in and to any and all trade secrets,
inventions, letters patent, applications for letters patent, trade dress, and
trademarks whether or not subject to state or federal
trademark. Executive further agrees to disclose promptly to the
Company any such works of authorship, inventions, intellectual property,
materials, documents or other work product, and, at the request and expense of
the Company, to apply for letters patent or registration thereon in every
jurisdiction designated by the Company.
17. Confidential
Information. Executive agrees both during the Term and
thereafter to keep secret and confidential all information labeled confidential
or not generally known which is heretofore or hereafter acquired concerning the
business and affairs of the Company, including without limitation, information
regarding trade secrets, trade dress, proprietary processes, confidential
business plans, market research data and financial data, and further agrees not
to disclose any such information to any person, firm, or corporation or use the
same in any manner other than in furtherance of the business or affairs of the
Company or unless such information shall become public knowledge by other means
Executive agrees that such information is a valuable, special, and unique asset
of the Company. Upon the termination of Executive’s employment with
the Company, Executive shall immediately return to the Company all documents,
records, notebooks, and similar repositories of information relating to
confidential information of the Company and/or the development of any
inventions. The provisions of this Section 17 shall survive the
termination of this Agreement and Executive’s employment for any
reason.
18. Waiver of
Breach. The waiver by the Company or Executive of any breach
of a provision of this Agreement shall not operate or be construed as, a waiver
of any subsequent breach by the parties.
19. Notice. All
notices, requests, demands, payments, or other communications hereunder shall be
deemed to have been duly given if in writing and hand delivered or sent by
certified or registered mail, return receipt requested, to the appropriate
address indicated below or to such other address as may be given in a notice
sent to all parties hereto:
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(a)
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if to the Company,
to:
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(b)
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If to Executive,
to:
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Xxxxxx
X. Xxxxxxxx
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20. Entire
Agreement. This Agreement supersedes any and all other
understandings and agreements, either oral or in writing, between Executive, on
one hand, and the Company, or any subsidiary of the Company, on the other hand,
with respect to the subject matter hereof and constitutes the sole and only
agreement between such persons with respect to said subject
matter. Each party to this Agreement acknowledges that no
representations, inducements, promises, or agreements, oral or otherwise, have
been made by any party or by anyone acting on behalf of any party, which are not
embodied herein, and that no agreement, statement, or promise not contained in
this Agreement shall be valid or binding or of any force or
effect. No change or modification of this Agreement shall be valid or
binding upon the parties hereto unless such change or modification is in writing
and is signed by the parties hereto.
21. Severability. If
any one or more of the provisions contained in this Agreement shall be held by a
court of competent jurisdiction to be invalid, illegal, or unenforceable in any
respect for any reason, that invalidity, illegality, or unenforceability shall
not affect any other provisions hereof, and this Agreement shall be construed as
if that invalid, illegal, or unenforceable provision had never been contained
herein.
22. Parties
Bound. The terms, promises, covenants, and agreements
contained in this Agreement shall apply to, be binding upon, and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that this Agreement may not be assigned by the Company or
Executive without the prior written consent of the other party.
23. Consolidation, Merger or
Sale of Assets. Nothing in this Agreement shall preclude the
Company from consolidating or merging into, or with, or transferring all or
substantially all of its assets to another corporation which assumes this
Agreement and all obligations and undertakings of the Company hereunder
(“Business Transfer”). Without further action by the Company, a
Business Transfer in itself shall not constitute a termination of the
Executive’s employment. Upon such Business Transfer, the use of the
word “Company” herein shall mean such other corporation, and this Agreement
shall continue in full force and effect.
24. Settling
Disputes. Subject to Section 24(b), in any dispute, claim,
question or difference arises with respect to this Agreement or its performance,
enforcement, breach, termination or validity (a “Dispute”), the parties will use
their reasonable efforts to attempt to settle the Dispute.
(a) Arbitration. Subject
to Section 24(b), except as is expressly provided in this Agreement, if the
parties do not reach a solution within a period of 30 business days following
the first notice of the Dispute by any party to the other, then upon written
notice by any party to the other, the Dispute shall be finally settled by
arbitration in accordance with the following procedures:
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(1)
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The
matter shall be determined by mandatory arbitration in Nevada, by a Nevada
corporate lawyer who is rated “AV” by Martindale Xxxxxxx Law Directory,
who is selected by agreement of the parties to the dispute and shall be
conducted in accordance with the Commercial Arbitration Rules of the
American Arbitration Association. If the parties do not agree
on the selection of an arbitrator, the arbitrator will be selected by the
American Arbitration Association based on the criteria stated
above. The parties to the dispute shall pay on a pro rata basis
all fees and expenses charged by the American Arbitration Association for
its services in selecting an arbitrator. The arbitrator shall
base his or her award on applicable law and judicial precedent and, unless
all parties agree otherwise, shall include in such award the findings of
fact and conclusions of law upon which the award is
based. Judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction
thereof.
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(2)
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The
award of the arbitrator will be final and binding as to all the parties to
the claim, dispute, or controversy and will not be subject to appeal,
review, or re-examination by a court or the arbitrator, except for fraud,
perjury, manifest clerical error, or evident partiality or misconduct by
the arbitrator that prejudices the rights of a party to the
arbitration. The award of the arbitrator may include an award
of any damages other than treble, special, punitive, exemplary, or
consequential damages, and, pursuant to the pleading of any party to the
dispute, any court having jurisdiction may enter a judgment of any award
rendered in the arbitration. The arbitrator shall award to the
prevailing party in the arbitration, if any, as determined by the
arbitrator, all costs incurred by it in connection with the
arbitration. Except as otherwise required by law, the
arbitrator and the parties to the arbitration shall treat the arbitration
proceeding as strictly confidential and shall not disclose the existence,
content, or results of the arbitration without the advance written consent
of every party to the arbitration.
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(3)
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If
any party fails to proceed with arbitration as provided herein or
unsuccessfully seeks to stay such arbitration, or fails to comply with any
arbitration award, the other party shall be entitled to be awarded costs,
including reasonable attorneys’ fees, paid or incurred by such other party
in successfully compelling such arbitration or defending against the
attempt to stay, vacate or modify such arbitration
award.
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(b) Arbitration Does Not
Apply. Nothing in this shall limit or prevent a party from
seeking to enforce the performance of this Agreement by injunction or specific
performance upon application to a court of competent jurisdiction without proof
of actual damage (and without the requirement of posting a bond or other
security).
25. Set
Off. The Company’s obligation to pay Executive the amounts
provided and to make arrangements provided hereunder shall be subject to
set-off, counterclaim or recoupment of amounts owed by Executive to the Company
or its affiliates.
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26. Withholding
Taxes. The Company shall withhold from any amounts payable
under this Agreement such Federal, state and local taxes as may be required to
be withheld pursuant to any applicable law or regulation.
27. Section 409A of the
Code. It is the intention of the parties to this Agreement
that no payment or entitlement pursuant to this Agreement will give rise to any
adverse tax consequences to the Executive under Section 409A of the Code and
Department of Treasury regulations and other interpretative guidance thereunder,
including that issued after the date hereof (collectively, “Section
409A”). The Agreement shall be interpreted to that end and,
consistent with that objective and notwithstanding any provision herein to the
contrary, Executive and the Company agree to amend this Agreement in order to
avoid, if practicable, the application of such taxes or interest under Section
409A and in a manner to preserve the economic benefits of this Agreement from
Executive’s perspective at no additional cost to the
Company. Further, no effect shall be given to any provision herein in
a manner that reasonably could be expected to give rise to adverse tax
consequences under that provision. Notwithstanding any other
provision herein, if the Executive is a “specified employee” (as defined in, and
pursuant to, Treasury Regulation 1.409A-1(i)) on the date of termination, no
payment of compensation under this Agreement shall be made to Executive during
the period lasting six (6) months from the date of termination unless the
Company determines that there is no reasonable basis for believing that making
such payment would cause Executive to suffer any adverse tax consequences
pursuant to Section 409A. If any payment to Executive is delayed
pursuant to the foregoing sentence, such payment instead shall be made on the
first business day following the expiration of the six-month period referred to
in the prior sentence. Moreover, in the event Executive is required
to execute a Release, no amount payable pursuant to Section 12 that is subject
to Section 409A shall be paid prior to the expiration of the revocation period
without regard to whether Executive waives such revocation right prior to the
expiration of such period. Although the Company shall consult with
Executive in good faith regarding implementation of this Section 27, neither the
Company nor its employees or representatives shall have liability to Executive
with respect to any additional taxes that Executive may be subject to in the
event that any amounts under this Agreement are determined to violate Section
409A.
28. Executive
Representation. Executive hereby represents to the Company
that the execution and delivery of this Agreement by Executive and the Company
and the performance by Executive of Executive’s duties hereunder shall not
constitute breach of, or otherwise contravene, the terms of any employment
agreement or other agreement or policy to which Executive is a party or
otherwise bound.
29. Cooperation. Executive
shall provide Executive’s reasonable cooperation in connection with any action
or proceeding (or any appeal from any action or proceeding) which relates to
events occurring during Executive’s employment hereunder. This
provision shall survive any termination of this Agreement or Executive’s
employment.
30. Captions. Captions
to the Sections of this Agreement are inserted solely for the convenience of the
parties, are not a part of this Agreement, and in no way define, limit, extend
or describe the scope thereof or the intent of any of the
provisions.
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31. Counterparts. This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument.
32. Applicable
Law. This Agreement shall be construed and the legal
relationship between the parties determined in accordance with the laws of the
State of Nevada without application of its choice of law rules.
IN WITNESS WHEREOF, the parties hereto
have hereunto set their hands and seals as of the day and year first above
written, the corporate parry acting through duly authorized
officers.
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By:
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/s/ Xx Xx | ||
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Title:
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EXECUTIVE
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EXHIBIT
A
STOCK OPTION
VESTING AND EXERCISE PRICE SCHEDULE
Note: The number of Shares that will vest
and be exercisable on each of the vesting dates, provided Executive remains
employed with the Company or its subsidiaries on such vesting date, and the
applicable exercise price per Share for such Shares are set forth below;
provided, however, that in no event shall the exercise price per Share be less
than the closing price per Share on the trading day immediately prior to the
Effective Date as reported in the Wall Street Journal.
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Number of
Shares
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Vesting
Date
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Exercise Price per
Share
|
|||||
|
40,000
|
November 23,
2010
|
$ |
7.93
|
||||
|
40,000
|
November 23,
2011
|
$ |
7.93
|
||||
|
40,000
|
November 23,
2012
|
$ |
7.93
|
||||
|
40,000
|
November 23,
2013
|
$ |
7.93
|
||||
|
40,000
|
November 23,
2014
|
$ |
7.93
|
||||
12
EXHIBIT
A-1
RESTRICTED
STOCK VESTING SCHEDULE
Note: The number of Shares that will vest
and become transferable on each of the vesting dates, provided Executive remains
employment with the Company or its subsidiaries on such vesting date is set
forth below.
|
Number of
Shares
|
Vesting
Date
|
||
|
10,000
|
November 23,
2010
|
||
|
10,000
|
|
November 23,
2011
|
|
|
10,000
|
|
November 23,
2012
|
|
|
10,000
|
|
November 23,
2013
|
|
|
10,000
|
|
November 23,
2014
|
|
13
EXHIBIT
B
RELEASE
This
RELEASE (“Release”) dated as of ___________, 20__ between Fushi Copperweld,
Inc., a Nevada corporation (the “Company”), and Xxxxxx X. Xxxxxxxx (the
“Executive”).
WHEREAS, the Company and the Executive
previously entered into an employment agreement dated November 23, 2009 (the “Employment Agreement”);
and
WHEREAS, the Executive’s employment with
the Company has terminated effective ______ __, 20__;
NOW, THEREFORE, in consideration of the
premises and mutual agreements contained herein and in the Employment Agreement,
the Company and the Executive agree as follows:
1. The
Executive, on his own behalf and on behalf of his heirs, estate and
beneficiaries, does hereby release the Company, and in such capacities, any of
its subsidiaries or affiliates, and each past or present officer, director,
agent, employee, shareholder, and insurer of any such entities, from any and all
claims made, to be made, or which might have been made of whatever nature,
whether known or unknown, from the beginning of time, including those that arose
as a consequence of his employment with the Company, or arising out of the
severance of such employment relationship, or arising out of any act committed
or omitted during or after the existence of such employment relationship, all up
through and including the date on which this Release is executed, including, but
not limited to, those which were, could have been or could be the subject of an
administrative or judicial proceeding filed by the Executive or on his behalf
under federal, state or local law, whether by statute, regulation, in contract
or tort, and including, but not limited to, every claim for front pay, back pay,
wages, bonus, fringe benefit, any form of discrimination (including but not
limited to, every claim of race, color, sex, religion, national origin,
disability or age discrimination under the Civil Rights Act of 1866; the Age
Discrimination in Employment Act; the Americans with Disabilities Act; the
Family and Medical Leave Act, the Civil Rights Act of 1964, Title VII, as
amended; the Civil Rights Act of 1991; the Employee Retirement Income Security
Act of 1974, as amended; the Equal Pay Act; the Worker Adjustment and Retraining
Notification Act; the North Carolina Retaliatory Employment Discrimination Act;
Tennessee Human Rights Act or any other federal, state or local law relating to
employment or discrimination in employment, or otherwise), wrongful termination,
emotional distress, pain and suffering, breach of contract, compensatory or
punitive damages, interest, attorney’s fees, reinstatement or
reemployment. If any arbitrator or court rules that such waiver of
rights to file, or have filed on his behalf, any administrative or judicial
charges or complaints is ineffective, the Executive agrees not to seek or accept
any money damages or any other relief upon the filing of any such administrative
or judicial charges or complaints. The Executive relinquishes any
right to future employment with the Company and the Company shall have the right
to refuse to re-employ the Executive, in each case without liability of the
Executive or the Company. The Executive acknowledges and agrees that
even though claims and facts in addition to those now known or believed by him
to exist may subsequently be discovered, it is his intention to fully settle and
release all claims he may have against the Company and the persons and entities
described above, whether known, unknown or suspected. Employee does
not waive his right to file a charge with the EEOC or participate in an
investigation conducted by the EEOC; however, Employee expressly waives his
right to monetary or other relief should any administrative agency, including
but not limited to the EEOC, pursue any claim on Employee’s behalf.
14
2. The
Company and the Executive acknowledge and agree that the release contained in
Paragraph 1 does not, and shall not be construed to, release or limit the scope
of any existing obligation of the Company and/or any of its subsidiaries or
affiliates (i) to indemnify the Executive for his acts as an officer or director
of Company in accordance with the bylaws of Company or the law or (ii) to the
Executive and his eligible, participating dependents or beneficiaries under any
existing group welfare (excluding severance), equity, or retirement plan of the
Company in which the Executive and/or such dependents are
participants.
3. The
Executive acknowledges that he has been provided at least 21 days to review the
Release and has been advised to review it with an attorney of his
choice. In the event the Executive elects to sign this Release prior
to this 21 day period, he agrees that it is a knowing and voluntary waiver of
his right to wait the full 21 days. The Executive further understand
that he has 7 days after the signing hereof to revoke it by so notifying the
Company in writing, such notice to be received by the Chief Executive Officer of
the Company within the 7 day period. The Executive further
acknowledge that he has carefully read this Release, knows and understands its
contents and its binding legal effect. The Executive acknowledge that
by signing this Release, he does so of his own free will and act and that it is
his intention that he be legally bound by its terms.
IN WITNESS WHEREOF, the parties have
executed this Release on the date first above written.
|
FUSHI COPPERWELD, INC.
|
|||
|
By:
|
|||
| Name | |||
| Title | |||
|
XXXXXX
X. XXXXXXXX
|
|||
15
