EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT is made as of December 18, 2008 by and between China Armco
Metals, Inc., a Nevada corporation (the “Company”), and Xxxxxx
Xxx (“Employee”).
WITNESSETH:
WHEREAS,
Employee wishes to be employed by the Company with the duties and
responsibilities as hereinafter described, and the Company desires to assure
itself of the availability of Employee’s services in such capacity.
NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
Company and Employee hereby agree as follows:
1. EMPLOYMENT. The
Company hereby agrees to employ Employee, and Employee hereby agrees to serve
the Company, upon the terms and conditions hereinafter set forth.
2. TERM. The employment
of Employee by the Company pursuant to this Agreement shall be for a thirty-six
(36) month period commencing on January 1, 2009 (the “Employment
Term”).
3. DUTIES. Employee
shall, subject to overall direction consistent with the legal authority of the
Board of Directors, serve as, and have all power and authority inherent in the
offices of Chief Executive Officer of the Company and its subsidiaries and shall
be responsible for those areas in the conduct of the business reasonably
assigned to him by the Board of Directors. Employee shall devote
substantially all his business time and efforts to the business of the Company;
provided, however, that it is understood and agreed that, while Employee may
devote time to other business matters in which he may have an interest, in the
event of a conflict, Employee’s first and primary responsibility shall be to the
performance of his duties for the Company.
4. COMPENSATION AND OTHER
PROVISIONS. Employee shall be entitled to the compensation and benefits
hereinafter described in subparagraphs (A) through (D) (such compensation and
benefits being hereinafter referred to as “Compensation
Benefits”).
A. BASE SALARY. The
Company shall pay to Employee a base salary (the “Base Salary”) of
$73,000 per annum for the period commencing on January 1, 2009 and ending on
December 31, 2009.
B. COMPENSATION ADJUSTMENT. The Base
Salary and Employee’s other compensation will be reviewed by the Board of
Directors of the Company (the “Board”) at least annually and may be increased
(but not decreased) from time to time as the Board may determine.
C. PARTICIPATION IN BENEFIT
PLANS. During the Employment Term, Employee shall be eligible to
participate in all Employee benefit plans and arrangements now in effect or
which may hereafter be established, including, without limitation, all life,
group insurance and medical care plans and all disability, retirement and other
Employee benefit plans of the Company. Should the Employee not want to
participate in the Company’s health plan, with Board approval, the company will
reimburse the Employee for the expense incurred in participating in another
plan.
D. OTHER PROVISIONS.
During the Employment Term, Employee shall be entitled to 2weeks paid vacation
per annum and an automobile allowance of $15 per month. Employee shall be
reimbursed
E. for all
reasonable expenses incurred by him in the performance of his duties, including,
but not limited to, entertainment, travel and other expenses incurred in
connection with such duties.
F. DISCRETIONARY AND INCENTIVE BONUSES. Employee
shall be entitled to receive annual and/or interim cash bonuses and/or other
bonuses (“Bonus
Payments”) when and in such amounts as may be determined by the Board,
pursuant to a recommendation by the compensation committee of the Board. The
Board shall meet at least annually to review Employee’s Bonus Payments and such
Bonus Payments shall be based upon Employee’s performance of the duties
assigned to him by the Board, the Company’s satisfaction of stated performance
objectives known to Employee and/or other relevant factors.
G. INDEMNIFICATION. The
Company shall indemnify and hold harmless Employee to the fullest extent
permitted by law for any action or inaction of Employee while serving as an
officer and director of the Company or, at the Company’s request, as an officer
or director of any other entity affiliated with the Company, or as a fiduciary
of any benefit plan.
5. TERMINATION.
Employee’s employment hereunder shall terminate as a result of any of the
following events:
A. Employee’s
death;
B. Employee
shall be unable to perform his duties hereunder by reason of illness, accident
or other physical or mental disability for a continuous period of at least three
(3) months or an aggregate of nine (9) months during any continuous eighteen
(18) month period (“Disability”);
C. voluntary
resignation by Employee; or
D. termination
by the Company with Cause, where “Cause” shall mean:
(i) final non-appealable adjudication of Employee of a felony, which would have
a material or adverse effect on the business of the Company; or (ii) the
determination of the Board (other than Employee) that Employee has engaged in
intentional misconduct or the gross neglect of his duties, which has a
continuing material adverse effect on the business of the Company;
or
E. termination
by the Company for any reason other than Cause.
Any
termination pursuant to subparagraph B, C, D or E of this Section shall be
communicated by a written notice (“Notice of
Termination”), such notice to set forth with specificity the grounds for
termination if termination is for “Cause”. Employee’s
employment under this Agreement shall be deemed to have terminated as follows:
(i) if Employee’s employment is terminated pursuant to subparagraph A above, on
the date of his death; (ii) if Employee’s employment is terminated pursuant to
subparagraph B, D or E above, on the date the Notice of Termination is
received by Employee; and (iii) if Employee’s employment is terminated pursuant
to subparagraph C above, thirty (30) days after the date on which
the Company receives Notice of Termination from Employee. The date on
which termination is deemed to have occurred pursuant to this paragraph is
hereinafter referred to as the “Date of Termination”.
If the Notice of Termination is sent to Employee by Company, then it shall be
sent to Employee pursuant to the terms set forth in Section 14 of this
Agreement.
6. PAYMENTS ON
TERMINATION. In the event that Employee’s employment is terminated
pursuant to Sections 5 A, B, or E above, the Company shall pay to
Employee and or his estate, (i) all of the Compensation
Benefits Employee is entitled to through the Date of Termination
and (ii) all Incentive Compensation, benefits and other compensation, if
any, due and owing as of the Date of Termination.
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LIFE INSURANCE. If
requested by the Company, Employee shall submit to such physical examinations
and otherwise take such actions and execute and deliver such documents as may be
reasonably necessary to enable the Company to obtain life insurance on the life
of Employee for the benefit of the Company.
7. REPRESENTATIONS AND
WARRANTIES. Employee represents and warrants to the Company that he is
under no contractual or other restriction or obligation that would prevent the
performance of his duties hereunder or interfere with the rights of the Company
hereunder.
8. DISCLOSURE AND PROTECTION OF
CONFIDENTIAL INFORMATION.
A. For
purposes of this Agreement, “Confidential
Information” means knowledge, information and material which is
proprietary to the Company, of which Employee may obtain knowledge or access
through or as a result of his employment by the Company (including information
conceived, originated, discovered or developed in whole or in part by Employee).
Confidential Information includes, but is not limited to, (i) technical
knowledge, information and material such as trade secrets, processes, formulas,
data, know-how, improvements, inventions, computer programs, drawings, patents,
and experimental and development work techniques, and (ii) marketing and other
information, such as supplier lists, customer lists, marketing and business
plans, business or technical needs of customers, consultants, licensees or
suppliers and their methods of doing business, arrangements with customers,
consultants, licensees or suppliers, manuals and personnel records or data.
Confidential Information also includes any information described above
which the Company obtains from another party and which the Company treats as
proprietary or designates as confidential, whether or not owned or developed by
the Company. Notwithstanding the foregoing, any information which is or
becomes available to the general public other than by breach of this Section 9
shall not constitute Confidential Information for purposes of this
Agreement.
B. During
the period in which the Employee is employed by the Company and for two (2)
years thereafter, Employee agrees, to hold in confidence all Confidential
Information and not to use such information for Employee’s own benefit or to
reveal, report, publish, disclose or transfer, directly or indirectly, any
Confidential Information to any person or entity, or to utilize any Confidential
Information for any purpose, except in the course of Employee’s work for the
Company or as required by law.
C. Employee
will abide by any and all policies and procedures, whether formal or informal,
that may from time to time be imposed by the Company for the protection of
Confidential Information, and will inform the Company of any defects in, or
improvements that could be made to, such policies and procedures.
D. Employee
will notify the Company in writing immediately upon receipt of any subpoena,
notice to produce, or other compulsory order or process of any court of law or
government agency which requires or may require the disclosure or other transfer
of Confidential Information.
E. Upon
termination of Employee’s employment with the Company, Employee will deliver to
the Company or destroy (at Employee’s election) any and all records and tangible
property that contain Confidential Information that are in his possession or
under his control.
9. COVENANT NOT TO
COMPETE.
A. In
consideration for the Company entering into this Agreement, Employee covenants
and agrees that during the period in which the Employee is employed by the
Company and for one (1) year thereafter, Employee will not, without the express
prior written consent of the Company, directly or indirectly, compete with the
business of the Company anywhere within the United States of America
or
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B. the
Peoples Republic of China. Employee will not undertake any activities
that are competitive with or acquire interests in an entity which is competitive
with the business of the Company, whether alone, as a partner, or as an officer,
director, Employee, independent contractor, consultant or shareholder holding 5%
or more of the outstanding voting stock of any other corporation, or as a
trustee, fiduciary or other representative of any other person or
entity.
C. During
the period in which the Employee is employed by the Company and for one (1)
year thereafter, Employee will not, directly or indirectly, solicit or induce
any Employee of the Company or any Employee of a subsidiary of the Company to
leave his or her employment, or solicit or induce any consultant or independent
contractor to sever that person’s relationship with the Company.
D. If any
court shall determine that the duration or geographical limit of any covenant
contained in this Section 10 is unenforceable, it is the intention of the
parties that covenant shall not be terminated but shall be deemed amended to the
extent required to render it valid and enforceable, such amendment to apply only
in the jurisdiction of the court that has made such adjudication.
E. Employee
acknowledges and agrees that (i) the covenants contained in Sections 9 and 10
hereof are of the essence in this Agreement and that such covenants are
reasonable and necessary to protect and preserve the interests, properties, and
business of the Company, and (ii) irreparable loss and damage will be suffered
by the Company should Employee breach any of such covenants.
10. AVAILABILITY OF INJUNCTIVE
RELIEF. Employee acknowledges and agrees that any breach by him of the
provisions of Sections 9 or 10 hereof will cause the Company irreparable injury
and damage for which it cannot be adequately compensated in
damages. Employee therefore expressly agrees that the Company shall
be entitled to seek injunctive and/or other equitable relief, on a temporary or
permanent basis to prevent an anticipatory or continuing breach of this
Agreement. Nothing herein shall be construed as a waiver by the Company of any
right it may have or hereafter acquired to monetary damages by reason of any
injury to its property, business or reputation or otherwise arising out of any
wrongful act or omission of it.
11. SURVIVAL. The
covenants, agreements, representations and warranties contained in or made
pursuant to this Agreement shall survive Employee’s termination of employment,
irrespective of any investigation made by or on behalf of any
party.
12. MODIFICATION. This
Agreement sets forth the entire understanding of the parties with respect to the
subject matter hereof, supersedes all existing agreements between them
concerning such subject matter, and may be modified only by a written instrument
duly executed by each party.
13. NOTICES. Any notice
required or permitted hereunder shall be deemed validly given if delivered by
hand, verified overnight delivery, or by first class, certified mail to the
following addresses (or to such other address as the addressee shall notify in
writing to the other party):
If to
Employee Xxxxxx Xxx
Suite 1706/A, Jincheng International
Xxxxx
Xx 00
XxxXxx Xxxx
Xxxxxxxxx Xxxxx
Province 450008
If to the
Company: Xxx
Xxxxxx Xxxx Xxxxx, Xxxxx 00
Xxx
Xxxxx, XX 00000
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INDEPENDENT
COUNSEL. The Company and Employee agree that each of them have
been, or were advised and fully understand, that they are entitled to be
represented by independent legal counsel with respect to all matters
contemplated herein from the commencement of negotiations at all times through
the execution hereof
14. WAIVER. Any waiver by
either party of a breach of any provision of this Agreement shall not operate as
or be construed to be a waiver of any other breach of such provision or of any
breach of any other provision of this Agreement. The failure of a party to
insist upon strict adherence to any term of this Agreement on one or more
occasions 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. All waivers must be in writing.
15. BINDING EFFECT. The
Company’s rights and obligations under this Agreement shall not be transferable
by assignment or otherwise, and any attempt to do any of the foregoing shall be
void. The provisions of this Agreement shall be binding upon the Employee and
his heirs and personal representatives, and shall be binding upon and inure to
the benefit of the Company, its successors and assigns.
16. HEADINGS. The
headings in this Agreement are solely for convenience of reference and shall be
given no effect in the construction or interpretation of this
Agreement.
17. GOVERNING LAW; VENUE.
The validity, construction and enforcement of, and the remedies under, this
Agreement shall be governed in accordance with the laws of the State of New
York, without giving effect to any choice of laws principles.
18. ENTIRE AGREEMENT.
This writing constitutes the binding and entire agreement of the parties
superseding and extinguishing all prior agreements or understandings regarding
the subject matter hereof, and may not be modified without the written agreement
by the parties.
19. INVALIDITY. The
invalidity or unenforceability of any term of this Agreement shall not
invalidate, make unenforceable or otherwise affect any other term of this
Agreement, which shall remain in full force and effect.
20. ATTORNEYS’ FEES.
Except for any disputes arising pursuant to Section 15 of this Agreement, if any
dispute or litigation arises hereunder between any of the parties hereto, then
the prevailing party shall be entitled to all reasonable costs and expenses
incurred by it in connection therewith (including, without limitation, all
reasonable attorneys’ fees and costs incurred before and at any trial or other
proceeding and at all tribunal levels), as well as all other relief granted in
any suit or other proceeding.
WITNESS
WHEREOF, the parties have executed this Agreement as of the date first
hereinabove written.
| China Armco Metals, Inc. | Employee | |||
|
/s/Kexaun
Yao
|
/s/
Kexaun
Yao
|
|||
|
Name:
Kexaun Yao
|
Name: Kexaun
Yao
|
|||
|
Title:
Chief Executive Office, Chairman of the Board
|
Title
|
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