EMPLOYMENT AGREEMENT
AGREEMENT dated as of the
16th
day of January, 2009, by and among NIVS IntelliMedia Technology Group, Inc., a
Delaware corporation with its principal office at NIVS Industry Garden, Xx.00-00
Xxxxxxx Xxxx, Xxxxxxx Xxxx Xxxxxxxxx Xxxxxxxx, China, 516005 (the
“Company”), and
Xxxxx Xxxxx, an individual residing at 6F/C Building, Huahan Chuangxin Block,
Keyuan Road, Shenzhen, China, 518057 (“Executive”).
W I T N E S S E T
H:
WHERAS, Executive has the
experience, know-how, ability and qualifications to serve as the Company’s
Interim Chief Financial Officer and Corporate Secretary.
WHEREAS, the Company desires
to engage Executive, and Executive desires to accept such engagement, to serve
as the Company’s Interim Chief Financial Officer and Corporate Secretary until
the Company is able to engage a permanent Chief Financial Officer.
NOW, THEREFORE, in
consideration of the mutual promises set forth in this Agreement, the parties
agree as follows:
1. Employment and
Duties. Subject to the terms and conditions hereinafter set
forth, the Company hereby employs Executive as Interim Chief Financial Officer
and Corporate Secretary. As Interim Chief Financial Officer and
Corporate Secretary of the Company, Executive shall have the duties and
responsibilities associated with the Interim Chief Financial Officer and
Corporate Secretary of a public corporation. Executive shall report
to the Company’s Chief Executive Officer and Board of Directors (the “Board”). Executive
shall also perform such other duties and responsibilities as may be determined
by the Board, as long as such duties and responsibilities are consistent with
those of the Company’s Interim Chief Financial Officer and Corporate
Secretary.
2. Executive’s
Performance. Executive hereby accepts the employment
contemplated by this Agreement. During the term of this Agreement, as set forth
in Section 5 (the “Term”), Executive
shall perform his duties diligently, in good faith and in a manner consistent
with the best interests of the Company, and shall devote substantially all of
his business time to the performance of his duties under this
Agreement. In the course of his employment, Executive shall comply
with all policies, including Codes of Ethics, that are applicable to the
Company’s officers in general and chief financial and accounting officers, in
particular.
3. Compensation.
(a) During
the Term, the Company shall pay Executive a salary (“Salary”) at the
monthly rate of twenty thousand RMB (RMB$20,000), less appropriate deductions
required by applicable laws. Salary payments shall be payable monthly
in arrears in accordance with the Company’s policy on executive
compensation.
(b)
Executive
understands and agrees that he will not be eligible for employee benefits,
fringe benefits or other perquisites made available to Company employees,
including vacations, long term disability, sick time, life insurance and
retirement benefits except as specifically set forth in this Agreement.
Executive will execute any forms determined by Company to be necessary or
appropriate to confirm his No Benefit Status, including but not limited to a
declination of health insurance coverage form.
4. Reimbursement of
Expenses. The Company shall reimburse Executive, upon
presentation of proper expense statements, for all authorized, ordinary and
necessary out-of-pocket expenses reasonably incurred by Executive during the
Term in connection with the performance of his services pursuant to this
Agreement in accordance with the Company’s expense reimbursement
policy.
5. Term and Termination of
Employment. This Agreement shall be in effect as of the date
of this Agreement as first written above. Unless terminated earlier
pursuant to the terms of this Section 5, this Agreement shall be in effect until
a permanent Chief Financial Officer is identified and hired and commences
employment with the Company. This Agreement and Executive’s
employment pursuant to this Agreement may be terminated by the Executive or the
Company, at their respective sole discretion, on not less than two (2) weeks’
prior written notice, provided that, however, the Company may elect to terminate
this Agreement and the Executive’s employment pursuant to this Agreement upon
payment of two (2) weeks’ Salary to the Executive. No severance pay
shall be payable to Executive for termination. Notwithstanding the
foregoing, the Company may immediately terminate this Agreement and Executive’s
employment for “Cause” without notice or payment in lieu thereof upon the
occurrence of any of the following events: (i) Executive acting unlawfully,
dishonestly, in bad faith or grossly negligent with respect to the business of
the Company as determined by the Board; (ii) Executive committing any crime or
fraud against the Company or its property or the conviction of Executive of any
felony offense or crime reasonably likely to bring discredit upon Executive or
the Company; or (iii) a material breach or default of any term of this Agreement
by Executive.
6. Trade Secrets and
Proprietary Information.
(a) Executive
recognizes and acknowledges that the Company, through the expenditure of
considerable time and money, has developed and will continue to develop in the
future confidential information. “Confidential information” shall
mean all information of a proprietary or confidential nature relating to Covered
Persons, including, but not limited to, such Covered Person’s trade secrets or
proprietary information, confidential know-how, and marketing, services,
products, business, research and development activities, inventions and
discoveries, whether or not patentable, and information concerning such Covered
Person’s services, business, customer or client lists, proposed services,
marketing strategy, pricing policies and the requirements of its clients and
relationships with its lenders, suppliers, licensors, licensees and others with
which a Covered Person has a business relationship, financial or other data,
technical data or any other confidential or proprietary information possessed,
owned or used by the Company, the disclosure of which could or does have a
material adverse effect on the Company, its businesses, any business in which it
proposes to engage. Executive agrees that he will not at any time use
or disclose to any person any confidential information relating to Company;
provided, however, that nothing in this Section 6(a) shall be construed to
prohibit Executive from using or disclosing such information if he can
demonstrate that such information (i) became public knowledge other than by or
as a result of disclosure by a person not having a right to make such disclosure
or (ii) was disclosure that was authorized by the Company. The term
“Covered Person” shall include the Company, any subsidiaries and affiliates and
any other person who provides information to the Company pursuant to a secrecy
or non-disclosure agreement.
- 2
-
(b) In
the event that any confidential information is required to be produced by
Executive pursuant to legal process (including judicial process or governmental
administrative subpoena), Executive shall give the Company notice of such legal
process within a reasonable time, but not later than ten business days prior to
the date such disclosure is to be made, unless Executive has received less
notice, in which event Executive shall immediately notify the
Company. The Company shall have the right to object to any such
disclosure, and if the Company objects (at the Company’s cost and expense) in a
timely manner so that Executive is not subject to penalties for failure to make
such disclosure, Executive shall not make any disclosure until there has been a
court determination on the Company’s objections. If disclosure is
required by a court order, final beyond right of review, or if the Company does
not object to the disclosure, Executive shall make disclosure only to the extent
that disclosure is required by the court order, and Executive will exercise
reasonable efforts at the Company’s expense, to obtain reliable assurance that
confidential treatment will be accorded the confidential
information.
(c) Executive
shall, upon expiration or termination of the Term, or earlier at the request of
the Company, turn over to the Company or destroy all documents, papers, computer
disks or other material in Executive’s possession or under Executive’s control
which may contain or be derived from confidential information. To the
extent that any confidential information is on Executive’s hard drive or other
storage media, he shall, upon the request of the Company, cause either such
information to be erased from his computer disks and all other storage media or
otherwise take reasonable steps to maintain the confidential nature of the
material.
(d) Executive
further realizes that any trading in Company’s common stock or other securities
or aiding or assisting others in trading in Company’s common stock or other
securities, including disclosing any non-public information concerning Company
or its affiliates to a person who uses such information in trading in the
Company’s common stock or other securities, may constitute a violation of
federal and state securities laws. Executive will not engage in any
transactions involving the Company’s common stock or other securities while in
the possession of material non-public information in a manner that would
constitute a violation of federal and state securities laws.
(e) For
the purposes of Sections 6, 7 and 8 of this Agreement, the term “Company”
shall include the Company, and any subsidiaries and affiliates.
7. Covenant Not To
Solicit.
(a) During
the period from the date of this Agreement until one year following the date on
which Executive’s employment is terminated, Executive will not, directly or
indirectly:
- 3
-
(i) persuade
or attempt to persuade any person which is or was a customer, client or supplier
of the Company to cease doing business with the Company, or to reduce the amount of
business it does with the Company (the terms “customer” and “client” as used in
this Section 7 to include any potential customer or client to whom the
Company submitted bids or proposals, or with whom the Company conducted
negotiations, during the term of Executive’s employment or consulting
relationship hereunder or during the twelve (12) months preceding the
termination of his employment or consulting relationship, as the case may
be);
(ii) solicit
for himself or any other person other than the Company the business of any
person which is a customer or client of the Company, or was a customer or client
of the Company within one (1) year prior to the termination of his employment or
consulting relationship;
(iii) persuade
or attempt to persuade any employee of the Company, or any individual who was an
employee of the Company during the one (1) year period prior to the lawful and
proper termination of this Agreement, to leave the Company’s employ, or to
become employed by any person in any business in the PRC or HK whether as an
officer, director, consultant, partner, guarantor, principal, agent, employee,
advisor or in any manner, which directly competes with the business of the
Company as it is engaged in at the time of the termination of this Agreement,
unless, at the time of such termination or thereafter during the period that the
Executive is bound by the provisions of this Section 7, the Company ceases to be
engaged in such activity, provided, however, that nothing in this Section 7
shall be construed to prohibit the Executive from owning an interest of not more
than five (5%) percent of any public company engaged in such
activities.
(b) Executive
will not, during or after the Term, make any disparaging statements concerning
the Company, its business, officers, directors and employees that could injure,
impair, damage or otherwise affect the relationship between the Company, on the
one hand, and any of the Company’s employees, suppliers, customers, clients or
any other person with which the Company has or may conduct business or otherwise
have a business relationship of any kind and description; provided, however,
that this sentence shall not be construed to prohibit either from giving factual
information required to be given pursuant to legal process, subject to the
provisions of Section 6(b) of this Agreement. The Company will not
make any disparaging statements concerning Executive. This Section
7(b) shall not be construed to prohibit the either party from giving factual
information concerning the other party in response to inquiries that such party
believes are bona fide.
(c) The
Executive acknowledges that the restrictive covenants (the “Restrictive
Covenants”) contained in Sections 6 and 7 of this Agreement are a condition
of his employment and are reasonable and valid in geographical and temporal
scope and in all other respects. If any court determines that any of the
Restrictive Covenants, or any part of any of the Restrictive Covenants, is
invalid or unenforceable, the remainder of the Restrictive Covenants and parts
thereof shall not thereby be affected and shall remain in full force and effect,
without regard to the invalid portion. If any court determines that any of the
Restrictive Covenants, or any part thereof, is invalid or unenforceable because
of the geographic or temporal scope of such provision, such court shall have the
power to reduce the geographic or temporal scope of such provision, as the case
may be, and, in its reduced form, such provision shall then be
enforceable.
- 4
-
(d) Nothing
in this Section 7 shall be construed to prohibit Executive from owning a
passive, non-management interest of less than 5% in any public company that is
engaged in activities prohibited by this Section 7.
8. Injunctive Relief.
Executive agrees that his violation or threatened violation of any of the
provisions of Sections 6 or 7 of this Agreement shall cause immediate and
irreparable harm to the Company. In the event of any breach or threatened breach
of any of said provisions, Executive consents to the entry of preliminary and
permanent injunctions by a court of competent jurisdiction prohibiting Executive
from any violation or threatened violation of such provisions and compelling
Executive to comply with such provisions. This Section 8 shall not affect
or limit, and the injunctive relief provided in this Section 8 shall be in
addition to, any other remedies available to the Company at law or in equity or
in arbitration for any such violation by Executive. The provisions of Sections
6, 7 and 8 of this Agreement shall survive any termination of this Agreement and
Executive’s employment and consulting relationship pursuant to this
Agreement.
9. Indemnification. The
Company shall provide Executive with indemnification to the maximum extent
permitted by the Company’s certificate of incorporation, by-laws and applicable
law.
10. Representations by the
Executive. Executive represents, warrants, covenants and
agrees that he has a right to enter into this Agreement, that he is not a party
to any agreement or understanding, oral or written, which would prohibit
performance of his obligations under this Agreement, and that he will not use in
the performance of his obligations hereunder any proprietary information of any
other party which he is legally prohibited from using.
11. Miscellaneous.
(a) Any
notice, consent or communication required under the provisions of this Agreement
shall be given in writing and sent or delivered by hand, overnight courier or
messenger service, against a signed receipt or acknowledgment of receipt, or by
registered or certified mail, return receipt requested, or telecopier or similar
means of communication if receipt is acknowledged or if transmission is
confirmed by mail as provided in accordance with the notice provisions of this
Agreement, to the parties at their respective addresses set forth at the
beginning of this Agreement, with notice to the Company being sent to the
attention of the individual who executed this Agreement on its behalf. Any party
may, by like notice, change the person, address or telecopier number to which
notice is to be sent.
(b) If
any term, covenant or condition of this Agreement or the application thereof to
any party or circumstance shall, to any extent, be determined to be invalid or
unenforceable, the remainder of this Agreement, or the application of such term,
covenant or condition to parties or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each
term, covenant or condition of this Agreement shall be valid and be enforced to
the fullest extent permitted by law, and any court or arbitrator having
jurisdiction may reduce the scope of any provision of this Agreement, including
the geographic and temporal restrictions set forth in Section 7 of this
Agreement, so that it complies with applicable law.
- 5
-
(c) This
Agreement constitutes the entire agreement of the Company and Executive as to
the subject matter hereof, superseding all prior or contemporaneous written or
oral understandings or agreements, including any and all previous employment
agreements or understandings, all of which are hereby terminated, with respect
to the subject matter covered in this Agreement. This Agreement may not be
modified or amended, nor may any right be waived, except by a writing which
expressly refers to this Agreement, states that it is intended to be a
modification, amendment or waiver and is signed by both parties in the case of a
modification or amendment or by the party granting the waiver. No course of
conduct or dealing between the parties and no custom or trade usage shall be
relied upon to vary the terms of this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on any occasion shall
not be considered a waiver or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this
Agreement.
(d) No
party shall have the right to assign or transfer any of its or his rights
hereunder except that the Company’s rights and obligations may be assigned in
connection with a merger of consolidation of the Company or a sale by the
Company of all or substantially all of its business and assets.
(e) This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors, executors, administrators and permitted
assigns.
(f) The
headings in this Agreement are for convenience of reference only and shall not
affect in any way the construction or interpretation of this
Agreement.
(g) This
Agreement may be executed in counterparts, each of which when so executed and
delivered will be an original document, but both of which counterparts will
together constitute one and the same instrument.
(h) This
Agreement shall be interpreted and enforced under the internal laws of the State
of Delaware.
[Signatures
on following page]
- 6
-
IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first above
written.
|
By:
|
/s/
Tianfu Li
|
|
|
Tianfu
LI, Chief Executive Officer
|
||
|
/s/
Xxxxx Xxxxx
|
||
|
Xxxxx
XXXXX
|
||
- 7
-
