EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT is made and
entered into as of the 11th day of
May, 2010 (the “Agreement”), by and
between CHINA GREEN AGRICULTURE, INC., a Nevada corporation (the “Company”), having its
principal place of business at 0xx Xxxxx,
Xxxxxxx X, Xxxxx A. No.181, South Taibai Road, Xi’an, Shaanxi Province, People’x
Xxxxxxxx xx Xxxxx 000000, and Xxx Xxx (the “Executive”), having
PRC National ID No. (or Passport No.) X00000000 and having an address at 8610 EP
True Pkwy, West Des Moines, IA 50266 (collectively the “Parties”).
WITNESSETH:
WHEREAS,
the Company is engaged in the business of research, development, production and
distribution of humic acid organic liquid compound fertilizer (the “Business”);
and
WHEREAS,
Executive has represented that he has the experience, background and expertise
necessary to enable him to be the Company’s Chief Financial Officer;
and
WHEREAS,
based on such representation, and the Company’s reasonable due diligence, the
Company wishes to employ Executive as its Chief Financial Officer, and Executive
wishes to be so employed, in each case, upon the terms hereinafter set
forth.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements herein contained, and other good and valuable consideration, the
Parties agree as follows:
1. DEFINITIONS. As
used herein, the following terms shall have the following meanings:
1.1 “Affiliate” means any
Person controlling, controlled by or under common control with the
Company.
1.2 “Board” means the
Board of Directors of the Company.
1.3 “Common Stock” means
the Company’s $.001 par value per share common stock.
1.4 “Cause” means (i)
conviction of any crime whether or not committed in the course of his employment
by the Company; (ii) Executive’s refusal to carry out instructions of the Chief
Executive Officer or the Board which are consistent with Executive’s role as
Chief Financial Officer; or (iii) the breach of any representation, warranty or
agreement between Executive and Company.
1.5 “Date of Termination”
means (a) in the case of a termination for which a Notice of Termination (as
hereinafter defined in Section 5.3) is required, 30 days from the date of actual
receipt of such Notice of Termination or, if later, the date specified therein,
as the case may be, and (b) in all other cases, the actual date on which the
Executive’s employment terminates during the Term of Employment (as hereinafter
defined in Section 3) (it being understood that nothing contained in this
definition of “Date of Termination” shall affect any of the cure rights provided
to the Executive or the Company in this Agreement).
1.6 “Disability” means
Executive’s inability to render, for a period of three consecutive months,
services hereunder due to his physical or mental incapacity.
1.7 “Effective Date”
means May 11, 2010.
1.8 “Person(s)” means any
individual or entity of any kind or nature, including any other person as
defined in Section 3(a)(9) of the Securities Exchange Act of 1934, and as used
in Sections 13(d) and 14(d) thereof.
1.9 “Prospective Customer”
shall mean any Person which has either (a) entered into a nondisclosure
agreement with the Company or any Company subsidiary or Affiliate or (b) has
within the preceding 12 months received a currently pending and not rejected
written proposal in reasonable detail from the Company or any of the Company’s
subsidiary or Affiliate.
2. EMPLOYMENT.
2.1 Agreement to Employ.
Effective as of the Effective Date, the Company hereby agrees to employ
Executive, and Executive hereby agrees to serve, subject to the provisions of
this Agreement, as an officer and employee of the Company.
2.2 Duties and Schedule.
Executive shall serve as the Company’s Chief Financial Officer and shall have
such responsibilities as designated by the Company’s Chief Executive Officer or
the Board that are not inconsistent with applicable laws, regulations and
rules. Executive shall report directly to the Company’s Chief
Executive Officer or the Board, or the Audit Committee thereof, as circumstances
may require.
3. TERM OF EMPLOYMENT.
Unless Executive’s employment shall sooner terminate pursuant to Section 5, the
Company shall employ Executive for a term commencing on the Effective Date and
ending on the first anniversary thereof (the “Term”). The
term shall automatically renew for an additional year unless either Party
provides notice to the other that the Term shall not continue within 60 days
prior to the end of the prior Term. The period during which Executive
is employed pursuant to this Agreement shall be referred to as the “Term” or the “Term of
Employment”.
4. COMPENSATION.
4.1 Salary. Executive’s
salary during the Term shall be $120,000 per year (the “Salary”), payable in
twice-monthly payments and in US Dollars. All applicable withholding taxes shall
be deducted from such payments. The Board will review Executive’s
Salary at least once per year and may, in its discretion, increase or decrease
the Salary in accordance with the Company’s compensation policies. A
discretionary bonus, if any, may be paid each year as determined solely by the
Board.
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4.2 Vacation. Executive
shall be entitled to fifteen (15) days of paid vacation per year taken at such
times so as to not materially impede his duties hereunder. Executive shall be
entitled to a pro rata
number of days of paid vacation during the period beginning on the Effective
Date through the end of the first fiscal year. Vacation days that are
not taken may not be carried over into future years. Illness days
shall be consistent with the Company’s standard policies and applicable U.S.
law. Executive should be entitled to standard U.S. federal government
holidays in addition to vacation or illness days.
4.3 Business Expenses.
Executive shall be reimbursed by the Company for all ordinary and necessary
expenses incurred by Executive in the performance of his duties hereunder on
behalf of the Company, such expenses not to exceed $500 per month without the
prior written approval of the Company.
4.4 Section 409A
Compliance. The Executive and the Company intend that any
compensation under this Agreement shall be paid in compliance with Section 409A
of the Internal Revenue Code such that there are no adverse tax consequences,
interest, or penalties as a result of the payments. Notwithstanding any
other provisions of this Agreement to the contrary, any payment or benefits
otherwise due to the Executive upon the Executive’s termination from employment
with the Company shall not be made until and unless such termination from
employment constitutes a “Separation from Service”, as such term is defined
under Section 409A of the Internal Revenue Code. This provisions shall
have no effect on payments or benefits otherwise due or payable to the Executive
or on the Executive’s behalf, which are not on account of the Executive’s
termination from employment with the Company, including as a result of the
Executive’s death. Furthermore, if the Company reasonably determines that
the Executive is a “Specified Employee” as defined by Section 409A, upon
termination of Executive’s employment for any reason other than death (whether
by resignation or otherwise), no amount may be paid to the Executive earlier
than six months after the date of termination of Executive’s employment if such
payment would violate Section 409A and the regulations issued thereunder, and
payment shall be made, or commence to be made, as the case may be, on the date
that is six months and one day after the termination of Executive’s
employment. Each payment made under this Agreement shall be designated as
a “separate payment” within the meaning of Section 409A.
5. TERMINATION.
5.1 Termination Due to Death or
Disability.
5.1.1
Death. This
Agreement shall terminate immediately upon the death of
Executive. Upon Executive’s death, Executive’s estate or Executive’s
legal representative, as the case may be, shall be entitled to Executive’s
accrued and unpaid Salary and vacation as of the date of Executive’s death, plus
all other compensation and benefits that were vested through the date of
Executive’s death.
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5.1.2
Disability. In
the event of Executive’s Disability, this Agreement shall terminate and
Executive shall be entitled to (a) accrued and unpaid vacation through the first
date that a Disability is determined; and (b) all other compensation and
benefits that were vested through the first date that a Disability has been
determined.
5.2 Termination
. Both the Company and the Executive may terminate the
employment hereunder by delivery of written notice to the other party at least
thirty (30) days prior to termination date or with a shorter notice period if
agreed upon by the Parties. At Company’s sole discretion, it may substitute
thirty (30) days salary in lieu of such written notice. However, that in the
event of a breach of this Agreement by the Executive or an event which would
constitute “Cause”, the Company may immediately terminate this Agreement upon
written notice with no waiting period or substituting salary. Upon
the effective date of termination under this Section 5.2, Executive shall be
entitled to (a) accrued and unpaid vacation through such effective date; and (b)
all other compensation and benefits that were vested through such effective
date.
5.3 Notice of
Termination. Any termination of the Employment by the Company
or the Executive shall be communicated by a notice in accordance with Section
8.4 of this Agreement (the “Notice of
Termination”).
5.4 Payment. The
Executive shall not be entitled to severance payments upon any termination
provided in Section 5 herein. Except as otherwise provided in this Agreement,
any payments to which the Executive shall be entitled under this Section 5,
including, without limitation, any economic equivalent of any benefit, shall be
made as promptly as possible following the Date of Termination, but in no event
more than 30 days after the Date of Termination. If the amount of any
payment due to the Executive cannot be finally determined within thirty (30)
days after the Date of Termination, such amount shall be reasonably estimated on
a good faith basis by the Company and the estimated amount shall be paid no
later than thirty (30) days after such Date of Termination. As soon
as practicable thereafter, the final determination of the amount due shall be
made and any adjustment requiring a payment to Executive shall be made as
promptly as practicable. The payment of any amounts under this
Section 5 shall not affect Executive’s rights to receive any workers’
compensation benefits.
6. EXECUTIVE’S
REPRESENTATION. The Executive represents and warrants to the Company
that: (a) he is subject to no contractual, fiduciary or other obligation which
may affect the performance of his duties under this Agreement; (b) he has
terminated, in accordance with their terms, any contractual obligation which may
affect his performance under this Agreement; and (c) his employment with the
Company will not require him to use or disclose proprietary or confidential
information of any other person or entity.
7. NON-COMPETITION:
NON-DISCLOSURE; INVENTIONS.
7.1 Trade
Secrets. Executive acknowledges that his employment position with
the Company is one of trust and confidence. Executive further understands and
acknowledges that, during the course of Executive's employment with the Company,
Executive will be entrusted with access to certain confidential information,
specialized knowledge and trade secrets which belong to the Company, or its
subsidiaries, including, but not limited to, their methods of operation and
developing customer base, its manner of cultivating customer relations, its
practices and preferences, current and future market strategies, formulas,
patterns, patents, devices, secret inventions, processes, compilations of
information, records, and customer lists, all of which are regularly used in the
operation of their business and which Executive acknowledges have been acquired,
learned and developed by them only through the expenditure of substantial sums
of money, time and effort, which are not readily ascertainable, and which are
discoverable only with substantial effort, and which thus are the confidential
and the exclusive Property of the Company and its subsidiaries (hereinafter
“Trade Secrets”). Executive covenants and agrees to use his best efforts and
utmost diligence to protect those Trade Secrets from disclosure to third
parties. Executive further acknowledges that, absent the protections
afforded the Company and its subsidiaries in Section 7, Executive would not be
entrusted with any of such Trade Secrets. Accordingly, Executive agrees and
covenants (which agreement and covenant shall survive the termination of this
Agreement regardless of the reason) as follows:
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7.1.1
Executive will at no time take any action or make any statement that will
disparage or discredit the Company, any of its subsidiaries or their products or
services;
7.1.2
During the period of Executive's employment with the Company and for sixty (60)
months immediately following the termination of such employment, Executive will
not disclose or reveal to any person, firm or corporation other than in
connection with the business of the Company and its subsidiaries or as may be
required by law, any Trade Secret used or useable by the Company or any of its
subsidiaries, divisions or Affiliates (collectively the “Companies”) in
connection with their respective businesses, known to Executive as a result of
his employment by the Company, or other relationship with the Companies, and
which is not otherwise publicly available. Executive further agrees that during
the term of this Agreement and at all times thereafter, he will keep
confidential and not disclose or reveal to any person, firm or corporation other
than in connection with the business of the Companies or as may be required by
applicable law, any information received by him during the course of his
employment with regard to the financial, business, or other affairs of the
Companies, their respective officers, directors, customers or suppliers which is
not publicly available;
7.1.3
Upon the termination of Executive's employment with the Company, Executive will
return to the Company all documents, customer lists, customer information,
product samples, presentation materials, drawing specifications, equipment and
other materials relating to the business of any of the Companies, which
Executive hereby acknowledges are the sole and exclusive property of the
Companies or any one of them. Nothing in this Agreement shall
prohibit Executive from retaining, at all times any document relating to his
personal entitlements and obligations, his rolodex, his personal correspondence
files; and any additional personal property;
7.1.4
During the term of the Agreement and, for a period of three (3) months
immediately following the termination of the Executive's employment with the
Company, Executive will not: compete, or participate as a shareholder, director,
officer, partner (limited or general), trustee, holder of a beneficial interest,
employee, agent of or representative in any business competing directly with the
Companies without the prior written consent of the Company, which may be
withheld in the Company’s sole discretion; provided, however, that nothing
contained herein shall be construed to limit or prevent the purchase or
beneficial ownership by Executive of less than five percent of any security
registered under Section 12 or 15 of the Securities Exchange Act of
1934;
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7.1.5
During the term of the Agreement and, for a period of eighteen (18) months
immediately following the termination of the Executive's employment with the
Company, Executive will not:
7.1.5.1
solicit or accept competing business from any customer of any of the Companies
or any person or entity known by Executive to be or have been, during the
preceding 18 months, a customer or Prospective Customer of any of the Companies
without the prior written consent of the Company;
7.1.5.2
encourage, request or advise any such customer or Prospective Customer of any of
the Companies to withdraw or cancel any of their business from or with any of
the Companies; or
7.1.6
Executive will not during the period of his employment with the Company and,
subject to the provisions hereof for a period of eighteen (18) months
immediately following the termination of Executive's employment with the
Company,
7.1.6.1
conspire with any person employed by any of the Companies with respect to any of
the matters covered by this Section 7;
7.1.6.2
encourage, induce or solicit any person employed by any of the Companies to
facilitate Executive's violation of the covenants contained in this Section
7;
7.1.6.3
assist any entity to solicit the employment of any employee of any of the
Companies; or
7.1.6.4
employ or hire any employee of any of the Companies, or solicit or induce any
such person to join the Executive as a partner, investor, coventurer, or
otherwise encourage or induce them to terminate their employment with any of the
Companies.
7.2
Executive expressly acknowledges that all of the provisions of this Section 7 of
this Agreement have been bargained for and Executive's agreement hereto is an
integral part of the consideration to be rendered by the Executive which
justifies the rate and extent of the compensation provided for
hereunder.
7.3
Executive acknowledges and agrees that a violation of any one of the covenants
contained in this Section 7 shall cause irreparable injury to the Company, that
the remedy at law for such a violation would be inadequate and that the Company
shall thus be entitled to temporary injunctive relief to enforce that covenant
until such time that a court of competent jurisdiction either (a) grants or
denies permanent injunctive relief or (b) awards other equitable remedy(s) as it
sees fit.
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7.4 Successors.
7.4.1
Executive. This
Agreement is personal to Executive and, without the prior express written
consent of the Company, shall not be assignable by Executive, except that
Executive’s rights to receive any compensation or benefits under this Agreement
may be transferred or disposed of pursuant to testamentary disposition,
intestate succession or a qualified domestic relations order or in connection
with a Disability. This Agreement shall inure to the benefit of and
be enforceable by Executive’s estate, heirs, beneficiaries, and/or legal
representatives.
7.4.2
The Company.
This Agreement shall inure to the benefit of and be binding upon the Company and
its successors and assigns.
7.5 Inventions and
Patents. The Company shall be entitled to the sole benefit and exclusive
ownership of any inventions or improvements in products, processes, or other
things that may be made or discovered by Executive while he is in the service of
the Company, and all patents for the same. During the Term, Executive shall do
all acts necessary or required by the Company to give effect to this section
and, following the Term, Executive shall do all acts reasonably necessary or
required by the Company to give effect to this section. In all cases,
the Company shall pay all costs and fees associated with such acts by
Executive.
8. MISCELLANEOUS.
8.1 Indemnification. The
Company and each of its subsidiaries shall, to the maximum extent provided under
applicable law, indemnify and hold Executive harmless from and against any
expenses, including reasonable attorney’s fees, judgments, fines, settlements
and other legally permissible amounts (“Losses”), incurred in
connection with any proceeding arising out of, or related to, Executive’s
employment by the Company, other than any such Losses incurred as a result of
Executive’s negligence or willful misconduct. The Company shall, or
shall cause a subsidiary thereof to, advance to Executive any expenses,
including attorney’s fees and costs of settlement, incurred in defending any
such proceeding to the maximum extent permitted by applicable
law. Such costs and expenses incurred by Executive in defense of any
such proceeding shall be paid by the Company or applicable subsidiary in advance
of the final disposition of such proceeding promptly upon receipt by the Company
of (a) written request for payment; (b) appropriate documentation evidencing the
incurrence, amount and nature of the costs and expenses for which payment is
being sought; and (c) an undertaking adequate under applicable law made by or on
behalf of Executive to repay the amounts so advanced if it shall ultimately be
determined pursuant to any non-appealable judgment or settlement that Executive
is not entitled to be indemnified by the Company or any subsidiary
thereof. the Company will provide Executive with coverage under all
director’s and officer’s liability insurance policies which is has in effect
during the Term, with no deductible to Executive.
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8.2 Applicable Law.
Except as may be otherwise provided herein, this Agreement shall be governed by
and construed in accordance with the laws of the State of New York, applied
without reference to principles of conflict of laws.
8.3 Amendments. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors or legal
representatives.
8.4 Notices. All
notices and other communications hereunder shall be in writing and shall be
given by hand-delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
Xxx Xxx
0000 XX Xxxx Xxxx
Xxxx
Xxx Xxxxxx, XX 00000
Telephone: 000-000-0000
E-mail: xxxxxxx@xxxxx.xxx
If to the Company:
0xx Xxxxx, Xxxxxxx X, Xxxxx A.
No.181
South Taibai Road, Xi’an, Shaanxi
Province,
People’s Republic of China
710065
Attn: Mr. Xxx Xx, Chief
Executive Officer
Tel: (00-00) 0000-0000
With a copy to (which shall not
constitute notice):
Xxxxxxxxx X. Xxxx, Esq.
Xxxxx Xxxxxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx
Xxxx 00000
Tel: 000-000-0000
Or to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
8.5 Withholding. The
Company may withhold from any amounts payable under the Agreement, such federal,
state and local income, unemployment, social security and similar employment
related taxes and similar employment related withholdings as shall be required
to be withheld pursuant to any applicable law or regulation.
8.6 Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
and any such provision which is not valid or enforceable in whole shall be
enforced to the maximum extent permitted by law.
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8.7 Captions. The
captions of this Agreement are not part of the provisions and shall have no
force or effect.
8.8 Entire
Agreement. This Agreement contains the entire agreement among the
parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, between the parties with respect thereto.
8.9 Survivorship. The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement or the Executive’s employment hereunder to the
extent necessary to the intended preservation of such rights and
obligations.
8.10
Waiver.
Either Party's failure to enforce any provision or provisions of this Agreement
shall not in any way be construed as a waiver of any such provision or
provisions, or prevent that party thereafter from enforcing each and every other
provision of this Agreement.
8.11
Joint
Efforts/Counterparts. Preparation of this Agreement shall be deemed to be
the joint effort of the parties hereto and shall not be construed more severely
against any party. This Agreement may be signed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
8.12
Representation by
Counsel. Each Party hereby represents that it has had the opportunity to
be represented by legal counsel of its choice in connection with the negotiation
and execution of this Agreement.
--
Signature page follows --
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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the day and year first above
written.
| EMPLOYEE: | CHINA GREEN AGRICULTURE, INC. | |||
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Xxx Xxx
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Xxx Xx
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Xxx
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Chief
Executive Officer
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