EMPLOYMENT AGREEMENT BY AND KEVIN MA AND SHANGHAI CENTURY ACQUISITION CORPORATION Dated: February 20, 2007
Execution
Copy
BY
AND
XXXXX
XX
AND
Dated:
February 20, 2007
THIS
EMPLOYMENT AGREEMENT (“Agreement”)
is
made
and entered into this
20th
day
of February 2008
by
and
Xxxxx
Xx
(the
“Employee”)
and
BACKGROUND
WHEREAS
the Employee and the Company desire to enter into this Agreement for the purpose
of retaining the services of the Employee, and the Company wishes to provide
the
Employee with an inducement to remain with the Company;
NOW,
THEREFORE, intending to be legally bound, and in consideration of the premises
and the mutual promises set forth in this Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and Employee agree as follows:
DEFINITIONS
“Administrator”
means the Compensation Committee (as defined below) or the Board (as defined
below) who administer the Employee Stock Options (as defined below) under
applicable stock option agreements or stock incentive plans or
schemes.
“Affiliate”
means with respect to any Person directly or indirectly Controlling, Controlled
by, or under common Control with such Person.
“Ancillary
Agreements” is as defined in Article 5.
“Board”
means the Board of Directors of the Company.
“Business”
means engaging financial leasing and other leasing activities in the PRC either
directly or through subsidiaries of the Company.
“Cash
Compensation” is as defined in Section 2.1.
“Cause”
means (i) the Employee commits a crime involving dishonesty, breach of trust,
or
physical harm to any person; (ii) The Employee materially breaches any
applicable law or regulation that has a potentially material adverse effect
on
either the performance or Business of the Company or any of its Subsidiaries
or
on the Employee’s ability to carry out his duties as an officer or director of
the Company or any of its Subsidiaries; (iii) the Employee willfully engages
in
conduct that is in bad faith and materially injurious to the Company, including
but not limited to, misappropriation of trade secrets, fraud or embezzlement;
(iv) the Employee commits a material breach of this Agreement or the Ancillary
Agreements, which breach is not cured within twenty (20) days after written
notice to the Employee from the Company; (iv) the Employee willfully refuses
to
implement or follow a reasonable and lawful policy or directive of the Company,
which breach is not cured within twenty (20) days after written notice to the
Employee from the Company; (v) the Employee engages in malfeasance demonstrated
by a pattern of failure to perform job duties diligently and professionally;
(vi) the Employees fails to substantially and materially achieve the Share
Bonus
targets set forth n Section 2.2, the Performance Targets referred to in Section
2.8 or budgets approved by the Board; or (vii) the conduct of the Employee
brings disrepute to the Company or its Business or results in the portrayal
of
the Company in a negative light.
2
“Change
in Control” means a change in ownership or control of the Company effected
through either of the following transactions: (i) the direct or indirect
acquisition by any person or related group of persons (other than an acquisition
from or by a Company-sponsored employee benefit plan or by a person that
directly or indirectly controls, is controlled by, or is under common control
with, the Company) of beneficial ownership (within the meaning of Rule 13d-3
of
the Exchange Act) of securities possessing more than fifty percent (50%) of
the
total combined voting power of the Company’s outstanding securities pursuant to
a tender or exchange offer made directly to the Company’s shareholders, or (ii)
a change in the composition of the Board over a period of thirty-six (36) months
or less such that a majority of the Board members (rounded up to the next whole
number) ceases, by reason of one or more contested elections for Board
membership, to be comprised of individuals who are Continuing Directors. The
“Continuing Directors” means members of the Board who either (i) have been Board
members continuously for a period of at least thirty-six (36) months or (ii)
have been Board members for less than thirty-six (36) months but were elected
or
nominated for election as Board members by at least a majority of the Board
members described in clause (i) who were still in office at the time such
election or nomination was approved by the Board. “Associate” has the meaning
ascribed to such term in Rule 12b(2) promulgated under the Exchange
Act.
“Company”
means Shanghai Century Acquisition Corporation.
“Compensation
Committee” means the compensation committee of the Board of the Company or such
other group of directors performing similar functions.
“Control”
(including the terms “Controlled by” and “under common Control with”) means the
possession, directly or indirectly or as a trustee or executor, of the power
to
direct or cause the direction of the management of a Person, whether through
the
ownership of stock, as a trustee or executor, by contract or credit agreement
or
otherwise.
“Corporate
Transaction” means any of the following transactions: (i) a merger or
consolidation in which the Company is not the surviving entity, except for
a
transaction the principal purpose of which is to change the state in which
the
Company is incorporated; (ii) the sale, transfer or other disposition of all
or
substantially all of the assets of the Company; (iii) the complete liquidation
or dissolution of the Company; (iv) any reverse merger or series of related
transactions culminating in a reverse merger (including, but not limited to,
a
tender offer followed by a reverse merger) in which the Company is the surviving
entity but (A) the Ordinary Shares outstanding immediately prior to such merger
are converted or exchanged by virtue of the merger into other property, whether
in the form of securities, cash or otherwise, or (B) in which securities
possessing more than fifty percent (50%) of the total combined voting power
of
the Company’s outstanding securities are transferred to a person or persons
different from those who held such securities immediately prior to such merger
or the initial transaction culminating in such merger, but excluding any such
transaction or series of related transactions that the Administrator determines
shall not be a Corporate Transaction; or (v) acquisition in a single or series
of related transactions by any person or related group of persons (other than
the Company or by a Company-sponsored employee benefit plan) of beneficial
ownership (within the meaning of Rule 13d-3 of the Exchange Act) of securities
possessing more than fifty percent (50%) of the total combined voting power
of
the Company’s outstanding securities.
3
“Effective
Date” means the Closing Date of the Stock Purchase Agreement between Asia Leader
Investments Limited and Shanghai Century Acquisition Corporation.
“Employee”
is as defined in the Preamble.
“Employee
Resignation” and “Employee Resignation Date” are defined in Section
3.1.2.
“Employment
Capacity” shall be Chairman reporting to the Board of the Company.
“Employment
Contract Termination Date” means the later of June 30, 2013 or the date on which
either the Company or the Employee elects not to extend this Agreement further
by giving written notice to the other party.
“Employment
Final Termination Date” means the date upon which the Employee’s employment with
the Company ceases for any reason under the terms and conditions of this
Agreement..
“Employment
Term” is as defined in Section 1.1.
“Exchange
Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Good
Reason” in the context of the Employee’s resignation is defined as (a) a change
made by the Company without Cause in the Employee’s position which materially
reduces the Employee’s level of responsibilities, duties or stature; or (b) a
material reduction made by the Company without Cause in the Employee’s Monthly
Base Salary.
“Management
Team” is as defined in Article 1.
“Monthly
Base Salary” is as defined in Section 2.1 (i).
“Ordinary
Shares” means the ordinary shares of the Company.
“Original
Employment Agreement” is as defined in the Preamble.
“Performance
Targets” shall be as defined in Section 2.1.
“Person”
means an individual, corporation, partnership, limited liability company,
limited partnership, association, trust, unincorporated organization or other
entity or group (as defined in Section 13(d)(3) and Section 14(d)(2) of the
Exchange Act).
“PRC”
means the People’s Republic of China.
4
“RMB”
or
Renminbi means the legal currency of the People’s Republic of
China.
“Share
Bonus” shall be as defined in Section 2.2.
“Stock
Option Employment Package” shall be the stock option employment package as set
forth in Section 2.7.
“Subsidiary”
means, with respect to any Person, any entity which securities or other
ownership interests having ordinary voting power to elect a majority of the
Board or other persons performing similar functions are at the time directly
or
indirectly owned by such Person.
“Trust”
shall be as defined in Section 2.2.
“U.S.
dollars” or “US$” means the legal currency of the United States.
ARTICLE
1. EMPLOYMENT
AND TERM
The
Company hereby employs the Employee and the Employee hereby agrees to such
employment by the Company during the Employment Term to serve as Chief Executive
Officer of the Company, with the customary duties, authorities and
responsibilities of such position and such other duties, authorities and
responsibilities relative to the Company that may from time to time be delegated
to the Employee by the Board. The Employee shall perform such duties and
responsibilities as are normally related to such position in accordance with
the
international standards of the industry and any additional duties now or
hereafter assigned to the Employee by the Board. The Employee shall abide by
the
Company’s rules, regulations and practices as they may from time-to-time be
adopted or modified.
The
Employee and the Company shall contemporaneously with this Agreement execute
the
Key Employee Invention Assignment and Confidentiality Agreement in the form
attached as Exhibit A and the Non-Compete Agreement in the form attached as
Exhibit B.
In
addition, the Employee shall assist the Company in recruiting a management
team
for the Company or its Subsidiaries experienced in leasing and related service
areas (the “Management Team”). The members of the Management Team shall execute
employment agreements with the Company or its relevant Subsidiary in accordance
with the policies and procedures of the Company and its Subsidiaries. Such
employment agreements shall include the Key Employee Invention Assignment and
Confidentiality Agreement in the form attached as Exhibit A, the Non-Compete
Agreement in the form attached as Exhibit B and the Form of Release Certificate
in the form attached as Exhibit C.
1.1
|
Employment
Term. The
Employment Term of this Agreement shall commence on the Effective
Date and
shall continue until the earlier of the Employment Contract Termination
Date or the Employment Final Termination
Date.
|
1.2
|
Working
Time.
During the Employment Term, the Employee shall devote the majority
of his
time and attention to the Business and affairs of the Company and
shall in
all respects properly perform his duties hereunder as is required
in the
judgment of the Board.
|
5
1.3
|
Change
in Control/Corporate Transaction.
Notwithstanding the foregoing, if a Change in Control or Corporate
Transaction occurs prior to the Employment Contract Termination Date,
then
the terms outlined in Article 4 shall
apply.
|
1.4
|
Location
of Employment.
The Employer shall be based in Beijing, the PRC unless otherwise
required
by the Company.
|
ARTICLE
2. COMPENSATION
PACKAGE AMOUNT
2.1
|
Cash
Compensation.
During the Employment Term, as compensation for services hereunder
and
subject to the performance of his obligations hereunder, the Employee
shall be paid base salary in the amount of US$600,000 payable in
arrears
on the last business day of each calendar month in twelve monthly
installments (“Monthly Base Salary”) and pro rated for the number of days
actually worked by Employee in the first month and in any month in
which
the Employment Contract Termination Date or the Employment Final
Termination Date occurs, less all required
deductions;
|
2.2
|
Annual
Performance Incentive Share Bonus.
The Employee and members of the Management Team also shall be eligible
to
share an annual performance incentive share bonus in respect of fiscal
years 2008, 2009 and 2010 (“Share Bonus”) subject to the terms and
conditions set forth in this Agreement and to the Employee’s achievement
of the annual performance targets set forth below. The Share Bonus
shall
be payable on or before the dates set forth below to a trust or other
entity established by the Employee for the benefit of himself, the
members
of the Management Team and their respective families (the “Management
Trust”) and the distribution of the Share Bonus paid to the Management
Trust shall be at the direction of the Employee, provided that the
Employee shall retain for himself a minimum of fifty (50%) percent
of the
Share Bonus paid in each of 2008, 2009 and 2010.
|
(a) |
4,000,000
newly issued Ordinary Shares of the Company free and clear of all
liens
and encumbrances and 4,000,000 newly issued warrants of the Company
(of a
class different from the existing public warrants of Shanghai Century
Acquisition Corporation with the same terms and conditions of such
public
warrants except without a redemption feature) shall be transferred
to the
Management Trust within thirty (30) days of the delivery of the 2008
pro
forma combined financial statements (based on the US GAAP audited
financials of such companies) of New Goal Leasing International Ltd.
and
its wholly foreign-owned enterprise in PRC engaged in the business
of
financial leasing and other leasing activities in the PRC (the “Reference
Entities”) reflecting a 2008 net after-tax income of US$20 million,
subject to the following carve out in (i) and the following adjustment
in
(ii):
|
(i) There
shall be excluded from such calculation of net after-tax income any amounts
that
may have been recorded on such financial statements as any compensation costs
associated with any such Share Bonus.
6
(ii) If
the
2008 pro forma combined net after tax income of the Reference Entities exceeds
a
band of plus or minus 5% from US$20 million, then the number of common shares
and warrants to be transferred shall be increased pro rata up to a maximum
of
50% or decreased pro rata without any minimum. By way of example, (x) if the
2008 pro forma combined net after-tax income is US$25,000,000, an additional
1,000,000 common shares and 1,000,000 warrants will be transferred to the
Management Trust; (y) if the 2008 pro forma combined net after-tax income is
US$15,000,000, 1,000,000 common shares and 1,000,000 warrants will be deducted
with the result that only 3,000,000 shares and 3,000,000 warrants will be
transferred to the Management Trust; and (z) if the 2008 pro forma combined
net
after-tax income is US$35,000,000, only an additional 2,000,000 common shares
and 2,000,000 warrants will be transferred to the Management Trust.
(b) |
An
additional 4,000,000 newly issued Ordinary Shares of the Company
shall be
transferred to the Management Trust within thirty (30) days of the
delivery of the 2009 pro forma combined financial statements (based
on the
US GAAP audited financials of such companies) of the Reference Entities,
if their combined 2009 net after-tax income is equal to or greater
than
US$34,000,000 subject to the same carve set forth in Paragraph 2.2(a)(i)
and the following adjustment: if the 2009 pro forma combined net
after tax
income of the Reference Entities (adjusted for the carve out) exceeds
US$34,000,000, then the number of ordinary shares to be transferred
shall
be increased pro rata up to a maximum of
25%.
|
(c) |
A
further 4,000,000 newly issued Ordinary Shares of the Company shall
be
transferred to the Management Trust within thirty (30) days of the
delivery of the 2010 pro forma combined financial statements (based
on the
US GAAP audited financials of such companies) of the Reference Entities,
if their combined 2010 net after-tax income is equal to or greater
than
US$57,800,000 subject to the same carve set forth in Paragraph 2.2(a)(i)
and the following adjustment: if the 2010 pro forma combined net
after tax
income of the Reference Entities (adjusted for the carve out) exceeds
US$57,800,000, then the number of ordinary shares to be transferred
shall
be increased pro rata up to a maximum of
25%.
|
(d) |
Any
Ordinary Shares issued as a Share Bonus issued shall be subject to
a lock
up of two (2) years from the date of issuance, subject to certain
customary exceptions. Upon issuance of any such shares of the Share
Bonus,
the Employee and each member of the Management Team who receives
any part
of the shares awarded under the Share Bonus Shares shall enter into
a
lockup agreement to such effect in favor of the
Company.
|
2.3
|
Benefits.
During the Employment Term, as further compensation for services
hereunder, the Employee shall be entitled to the benefits as
follows:
|
(a)
|
Insurance:
health and life insurance providing international standard coverage
as
determined by the Compensation Committee after consultation with
the
Employee.
|
7
(b)
|
Tax
Advisory Services:
reimbursement for actual tax advisory service fees incurred, up to
US$10,000 per year.
|
All
reimbursements will be paid subject to Employee’s delivery of actual expense
receipts/invoices documenting the relevant reimbursement requested.
2.4
|
Individual
Income Tax.
The Employee and the members of the Management Team shall be responsible
for paying their own individual income tax, and the Employee and
each
member of the Management Team will certify in writing annually to
the
Board that he or she has accurately reported and timely paid all
income
tax due in connection with such compensation. The Company will make all
required tax and statutory withholdings according to the PRC taxation
laws
and the tax amount will be deducted from the Employee’s Monthly Base
Salary, which deduction Employee hereby consents
to.
|
2.5
|
Annual
Leave.
The Employee shall be entitled to four (4) weeks of annual leave
with pay
during each calendar year of the Employment Term, which must be taken
in
accordance with the Company’s vacation policy then in
effect.
|
2.6
|
Travel
Expenses Reimbursement.
The Company shall pay or reimburse the Employee for reasonable business
expenses actually incurred or paid by the Employee during the Employment
Term, in the performance of his services
hereunder.
|
2.7
|
Stock
Option Employment Package.
The Employee shall be entitled to, and the Company shall grant the
Employee, a stock option employment package as determined by the
Compensation Committee in accordance with the policies of the Company
(the
“Company Policy”).
|
The
unvested portions of such options shall cease to vest if the Employee
voluntarily leaves the Company without good reason, is fired for Cause by the
Company or becomes otherwise incompetent to perform his essential duties after
any leave or accommodation required by law or permitted under Company
policy.
Notwithstanding
any provisions of the Company Policy to the contrary, the vested options shall
be exercised within ten (10) years from vesting. The Employee’s shares, whether
vested and/or exercised or not, shall be subject to transfer restrictions
determined by the Board.
In
the
event there takes place a Change in Control or a Corporate Transaction (each
a
“Buy-Out”), whether in the form of a cash-for-stock, stock-for-stock or other
arrangements, the vesting shall be accelerated and all the unvested shares
of
the Employee shall be vested and exercisable upon a date before the Buy-Out
transaction as determined by the Board (the “Cut-Off Date”), unless the Employee
has not by the Cut-Off Date been continuously employed by the Company for more
than twelve (12) months, in which case only half of the unvested portion of
shares of the Employee shall be vested and exercisable while the other half
of
his unvested portion of shares shall be cancelled and revoked from his stock
option.
8
2.8
|
Annual
Review.
The terms of the compensation package provided under this Agreement
and
the Employee’s recommendations in connection therewith shall be reviewed
by the Compensation Committee and/or the Board from time to time,
provided
that the Share Bonus in Section 2.2 shall not be amended. At a minimum,
the Company’s Compensation Committee will review in the second quarter of
each calendar year or at such other time as the Company and Employee
shall
agree, (a) the compensation package of the Employee, including approval
of
the annual performance incentive cash bonus payable, if any, based
on
achievement of the prior calendar year’s Performance Targets and (b) the
approval of performance targets (with specific qualitative and
quantitative performance factors) (the “Performance Targets”) for
determining the annual incentive cash bonus payouts for the current
calendar year. Except for agreed changes, if any, pursuant to clause
(b)
of the preceding sentence, any amendment agreed upon by the Board
or the
Compensation Committee and the Employee to the terms of the Employee’s
compensation package will not be retroactive and shall take effect
from
the time such amendment is made. The parties hereto agree that, as
a
general principle, amendments to the compensation package of the
Employee
shall not be made to, directly or indirectly, address changes in
applicable law (including tax laws) and other regulatory developments
which affect the Employee.
|
ARTICLE
3. TERMINATION
3.1
|
General.
|
3.1.1.
|
Company’s
Right to Terminate.
The Company shall have the right to terminate the employment of the
Employee at any time with Cause, but the relative rights and obligations
of the parties in the event of any such termination or resignation
shall
be determined under this Agreement. The Company shall not have the
right
to terminate the Employee without
Cause.
|
3.1.2.
|
Employee’s
Resignation Right.
The Employee shall have the right to resign for any reason with three
(3)
months prior written notice to the Company, but the relative rights
and
obligations of the parties in the event of any such resignation shall
be
determined under this Agreement (such event, an “Employee Resignation”,
and the date of notice by the Employee to the Company, the “Employee
Resignation Date”).
|
3.2
|
Termination
Under Certain Circumstances.
|
3.2.1.
|
Termination
For Cause.
In the event the Company terminates the Employee’s employment for cause
prior to the expiration of the Employment
Term:
|
(i)
|
subject
to the Employee’s compliance with Articles 5, 6 and 7, the Company will be
obliged to pay only the Standard Termination Entitlements as defined
in
Section 3.4.1;
|
(ii)
|
the
Share Bonus shall be terminated forthwith and no additional shares
or
warrants eligible thereunder shall be transferred to the Management
Trust
provided that any Ordinary Shares or warrants transferred to the
Management Trust pursuant to Section 2.2 prior to such termination
shall
not be adversely affected by such termination;
and
|
9
(iii)
|
Employee’s
right to exercise the Employee Stock Options described under Section
2.7
shall be determined pursuant to the applicable stock option agreements
and
stock incentive plan governing such options in effect at the time
of such
employment termination, provided that any stock options that shall
have
been vested as of the date of termination shall not be adversely
affected
by such termination.
|
3.2.2.
|
Resignation
For Any Reason Other Than Good Reason
In
the event the Employee resigns for any reason other than Good Reason
prior
to the expiration of the Employment
Term:
|
(i)
|
subject
to the Employee’s compliance with Articles 5, 6 and 7, the Company will be
obliged to pay the Standard Termination Entitlements as defined in
Section
3.4.1;
|
(ii)
|
the
Share Bonus shall be terminated forthwith and no additional shares
or
warrants eligible thereunder shall be transferred to the Management
Trust
provided that any Ordinary Shares or warrants transferred to the
Management Trust pursuant to Section 2.2 prior to such termination
shall
not be adversely affected by such termination;
and
|
(iii)
|
a
portion of the Employee Stock Options described under Section 2.7
which
are unvested on such date shall vest in accordance with the option
agreements (as amended) governing those
options.
|
3.2.3.
|
Resignation
for Good Reason.
Except in the event of a Change in Control or a Corporate Transaction,
in
the event that the Employee resigns for Good Reason, subject to the
Employee’s compliance with Articles 5, 6 and
7:
|
(i)
|
the
Company will be obligated to pay the Standard Termination Entitlements
as
defined in Section 3.4.1 and the Severance Benefits as defined in
Section
3.4.2; provided that Employee’s eligibility for Severance Benefits is
conditioned on Employee having first signed a release certificate
in the
form attached as Exhibit C;
|
(ii)
|
the
Company will be obligated to pay the Share Bonus to the Management
Trust
following such resignation for Good Reason provided that the performance
targets set forth in Section 2.2 are achieved; and
|
(iii)
|
a
portion of the Employee Stock Options described under Section 2.7
which
are unvested on such date shall vest in accordance with the option
agreements (as amended) governing those
options.
|
10
3.2.4.
|
Termination
upon a Change in Control or Corporate Transaction.
In the event of a Change in Control or Corporate Transaction, the
terms
outlined in Article 4 shall apply.
|
3.3
|
Liquidated
Damages.
The Company and Employee hereby stipulate that the damages which
may be
incurred by the Employee as a consequence of any such termination
of
employment are not capable of accurate measurement as of the Effective
Date and that the liquidated damages payments provided for in this
Agreement constitute a reasonable estimate under the circumstances
of, and
are in full satisfaction of, all damages sustained as a consequence
of any
such termination of employment.
|
3.4
|
Definitions.
|
3.4.1.
|
Standard
Termination Entitlements.
For all purposes of this Agreement, the “Standard Termination
Entitlements” shall mean and
include:
|
i.
|
the
Employee’s earned but unpaid compensation (including, without limitation,
salary, bonus and all other items which constitute wages under applicable
law) as of the date of his termination of employment. This payment
shall
be made at the time and in the manner prescribed by law applicable
to the
payment of compensation but in no event later than 30 days after
the date
of the Employee’s termination of
employment;
|
ii.
|
the
benefits, if any, due to the Employee (and the Employee’s estate,
surviving dependents or his designated beneficiaries) under the employee
benefit plans and programs and compensation plans and programs (including
stock option plans) maintained for the benefit of the employees of
the
Company; and
|
iii.
|
all
of the Employee’s Employee Stock Options that have been deemed to have
vested at or prior to the Employment Final Termination Date under
the
terms of applicable stock option agreements and stock incentive
plans.
|
3.4.2.
|
Severance
Benefits.
For all purposes of this Agreement, the Employee’s “Severance Benefits”
shall mean:
|
i.
|
the
payment of a lump sum amount equal to the total number of years between
the Effective Date and the Employment Final Termination Date multiplied
by
the Employee’s Monthly Base Salary in effect immediately prior to his
termination of employment; if the Employment Final Termination Date
occurs
six months or more after an anniversary of the Effective Date, such
half-year period after the anniversary shall be included in the number
of
years referenced above (e.g., if the Employment Final Termination
Date is
two years and ten months after the Effective Date, then the total
number
of years for purposes of this subsection would be 2.5);
and
|
11
ii.
|
for
a period of six months after the Employee’s termination of employment, all
benefits including direct payment by the Company to the carrier of
the
premiums due for any health insurance continuation coverage elected
by the
Employee under the Company group health
plans.
|
ARTICLE
4. Change
in Control Corporate Transaction.
4.1
|
Employment
Term.
If a Change in Control or Corporate Transaction occurs prior to the
Employment Contract Termination Date, then subject to the provisions
of
Section 4.2 below, the Employment Term shall remain
unchanged.
|
4.2
|
Severance
Payment Amount.
If a Change in Control or Corporate Transaction occurs prior to the
Employment Contract Termination Date and the Company terminates the
Employee’s employment without Cause or the Employee resigns for Good
Reason, then the Employee will be entitled to (a) a payment equal
to the
greater of (x) 6 times the Monthly Rate of Compensation or (y) 12
months’
Monthly Base Salary less any compensation paid to the Employee during
the
period between the Change in Control or Corporate Transaction and
Employment Final Termination Date, (b) the Company will be obligated
to
pay the Share Bonus to the Management Trust provided that the performance
targets set forth in Section 2.2 are achieved, and (c) subject to
the
Employee’s compliance with Articles 5, 6 and 7, the Standard Termination
Entitlements as defined in Section
3.4.1.
|
4.3
|
Health
and Life Insurance Benefits.
If a Change in Control or Corporate Transaction occurs prior to the
Employment Contract Termination Date, then the Employee will be entitled
to Company-paid contributions for health and life insurance premiums
for
the greater of six months or the number of months between the Employment
Final Termination Date and the first anniversary of the Change in
Control
or Corporate Transaction.
|
4.4
|
Section
280G.
In order to avoid the payment of excise tax imposed by Section 4999
of the
Internal Revenue Code of 1986 (the “Code”), the Company may reduce the
payments or benefits to the Employee (within the meaning of Section
280G(b)(2) of the Code). Such reduction may apply to cash payments,
vesting acceleration of Employee Stock Options and other benefits
received
by the Employee, which could result in the acceleration of vesting
of only
a portion or none of then unvested Employee Stock Options. In no
event
shall any payment be made under this Agreement if it would result
in an
excess parachute payment under section 280G of the Internal Revenue
Code
of 1986.
|
ARTICLE
5. PROPRIETARY
INFORMATION AND NON-COMPETITION
In
consideration of the Company granting Employee his position, the Employee shall,
on or before the Effective Date, enter into a Key Employee Invention Assignment
and Confidentiality Agreement in the form as Exhibit A attached hereto and
a
Non-Compete Agreement (together with the Key Employee Invention Assignment
and
Confidentiality Agreement, the “Ancillary Agreements”) in the form as Exhibit B
attached hereto. The Employee agrees that the entering into the Ancillary
Agreements is necessary to protect the interests of the Company, its
Subsidiaries or Affiliates and is reasonable and valid in geographical and
temporal scope and in all other respects. If any court determines that this
Article 5 or any provision in the Ancillary Agreements is unenforceable because
of the duration or geographical scope of such provision, such court will have
the power to reduce the duration or scope of such provision, as the case may
be,
and, in its reduced form, such provision will be enforceable.
12
ARTICLE
6. REMEDIES
If
the
Employee commits a breach, or threatens to commit a breach, of any provisions
of
this Agreement or the Ancillary Agreements (the “Breach”), the Company shall
have the right to terminate the Employee’s employment under Section 3.2.1 and
make a claim for damages associated with the Breach, each of which shall be
independent of the others and shall be severally enforceable, and all of which
shall be in addition to, and not in lieu of, any other rights and remedies
available under law or in equity to the Company. The Company shall have the
right to have the provisions hereof or of the Ancillary Agreements enforced
by
any court in the State of New York, USA, it being acknowledged and agreed that
any breach or threatened breach of any of such provision by the Employee will
cause irreparable injury to the Company and that money damages will not provide
an adequate remedy to the Company.
ARTICLE
7. DISPUTE
RESOLUTION
Any
dispute arising out of or in connection with this Agreement, the Key Employee
Invention Assignment and Confidentiality Agreement or Non-Compete Agreement
under the Article 5 hereof shall be finally settled under the Rules of the
Hong
Kong International Arbitration Centre (the “Arbitration Centre”) by three (3)
arbitrators appointed as follows: one (1) arbitrator shall be appointed by
Xxxxx
Xx, one (1) arbitrator shall be appointed by the Company and the third
arbitrator shall be appointed jointly by such two arbitrators. If such two
arbitrators fail to appoint such third arbitrator with thirty (30) days, then
such third arbitrator shall be appointed by the chairman of the Arbitration
Centre. The place of arbitration shall be in Hong Kong. The arbitration shall
be
conducted in English. The arbitration awards shall be final and binding upon
the
parties. The costs of the arbitration proceeding and any proceeding in court
to
confirm or to vacate any arbitration award, as applicable (including each
party’s attorneys’ fees and costs), shall be borne by the unsuccessful party or,
at the discretion of the arbitrators, may be prorated between the parties in
such proportion as the arbitrators determine to be equitable and shall be
awarded as part of the arbitrators’ award.
ARTICLE
8. GENERAL
PROVISIONS
8.1
|
Notices.
All notices, requests, claims, demands and other communications hereunder
shall be in writing and shall be given (and shall be deemed to have
been
duly received if so given) by hand delivery, telegram, telex, or
telecopy,
or facsimile transmission, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any courier service,
providing proof of delivery. All communications hereunder shall be
delivered to the respective parties at the following addresses or
to such
other address as the party to whom notice is given may have previously
furnished to the other parties hereto in writing in the manner set
forth
above:
|
13
If to the Employee: | Mr. Xxxxx Xx |
2106 China Xxxxx Xxxxx X,
Xx. 0 Xxxxxxxxxxxxx Xxx., Xxxxxxx 000000,
PRC
|
|
Facsimile:
(8610) 6505-2926
|
If to the Company: |
23rd
Floor, Shun Ho Tower
|
00-00
Xxx Xxxxx Xxxxxx
Xxxxxxx
Xxxx Xxxx
Facsimile:
(000) 0000-0000
|
8.2
|
Entire
Agreement.
This Agreement, taken together with the Ancillary Agreements, shall
constitute the entire agreement between the Employee and the Company
with
respect to the Employee’s employment with the Company and supersedes any
and all prior agreements and understandings, written or oral, with
respect
thereto.
|
8.3
|
Amendments
and Waivers.
Any term of this Agreement may be amended and the observance of any
term
of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively) only by an instrument
in writing and signed by the party against whom such amendment or
waiver
is sought to be enforced.
|
8.4
|
Successors
and Assigns.
The personal services of the Employee are the subject of this Agreement
and the Ancillary Agreements and no part of the Employee’s or the
Company’s rights or obligations hereunder or thereunder may be assigned,
transferred, pledged or encumbered by the Employee or the Company.
This
Agreement and the Ancillary Agreements shall inure to the benefit
of, and
be binding upon (a) the parties hereto, (b) the heirs, administrators,
executors and personal representatives of the Employee and (c) the
successors and assigns of the Company as provided
herein.
|
8.5
|
Governing
Law and Venue.
This Agreement, including the validity hereof and the rights and
obligations of the parties hereunder, and all amendments and supplements
hereof and all waivers and consents hereunder, shall be construed
in
accordance with and governed by the laws of the State of New York,
USA,
without giving effect to any conflicts of law provisions or rule,
that
would cause the application of the laws of any other
jurisdiction.
|
8.6
|
Severability.
If any provisions of this Agreement, as applied to any part or to
any
circumstance, shall be adjudged by a court to be invalid or unenforceable,
the same shall in no way affect any other provision of this Agreement,
the
application of such provision in any other circumstances or the validity
or enforceability of this
Agreement.
|
14
8.7
|
Survival.
The rights and obligations of the Company and Employee pursuant to
Articles 3, 4, 5, 6 and 7 shall survive the termination of the Employee’s
employment with the Company and the expiration of the Employment
Term.
|
8.8
|
Captions.
The headings and captions used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this
Agreement.
|
8.9
|
Counterparts.
This Agreement may be executed in two or more counterparts, each
of which
shall be deemed an original, but all of which together shall constitute
one and the same instrument.
|
15
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
EMPLOYEE
|
|||
By:
/s/
Xxxxx
Xx
|
|||
Xxxxx
Xx
|
|||
By:
/s/
Xxxxxxxx X. Xxx
|
|||
Name:
Xxxxxxxx
X. Xxx
|
|||
Title:
Co-Chief
Executive Officer
|
16
Exhibit
A
Key
Employee Invention Assignment and Confidentiality Agreement
In
consideration of, and as a condition of my employment with Shanghai Century
Acquisition Corporation, a Cayman Islands company (as contemplated in the
employment agreement between Shanghai Century Acquisition Corporation and me
(the “Employment Agreement”)), or with any its subsidiaries, including, without
limitation, of (collectively, the “Company”),
I
hereby represent to, and agree with, the Company as follows:
I
hereby
represent to, and agree with the Company as follows:
1.
|
Purpose
of Agreement.
I
understand that the Company is engaged in a continuous program of
research, development, production and marketing in connection with
its
business and that it is critical for the Company to preserve and
protect
its Proprietary Information (as defined in Section 3 below), its
rights in
Inventions (as defined in Section 2 below) and in any other intellectual
property rights. Accordingly, I am entering into this Employee Invention
Assignment and Confidentiality Agreement (this “Agreement”) as a condition
of my continued employment with the Company, whether or not I am
expected
to create inventions of value for the
Company.
|
2.
|
Disclosure
of Inventions.
I
will promptly disclose in confidence to the Company all inventions,
improvements, designs, original works of authorship, derivative works,
formulas, processes, compositions of matter, techniques, know-how,
computer software programs, databases, mask works and trade secrets
(the
“Inventions”) that I make or conceive or first reduce to practice or
create, either alone or jointly with others, during the period of
my
employment, whether or not in the course of my employment, and whether
or
not such Inventions are patentable, copyrightable or protectible
as trade
secrets or mask works.
|
3.
|
Proprietary
Information.
I
understand that my employment by the Company creates a relationship
of
confidence and trust with respect to any information of a confidential
or
secret nature that may be disclosed to me by the Company that relates
to
the business of the Company or to the business of any parent, subsidiary,
affiliate, customer or supplier of the Company or any other party
with
whom the Company agrees to hold information of such party in confidence
(the “Proprietary Information”). Such Proprietary Information includes but
is not limited to any confidential and/or proprietary knowledge,
data or
information, any past, present or future Inventions, marketing plans,
product plans, business strategies, financial information (including
budgets and unpublished financial statements), licenses, prices and
costs,
forecasts, personal information, suppliers, customers and lists of
either,
information, trade secrets, patents, mask works, ideas, confidential
knowledge, data or other proprietary information relating to new
and
existing products, processes, know-how, designs, formulas, developmental
or experimental work, improvements, discoveries, designs and techniques,
computer programs, data bases, other original works of authorship,
employee information including the skills and compensation of other
employees of Company, or other subject matter pertaining to any business
of Company. I agree that Company may from time to time create a list
of
specific Proprietary Information and I will acknowledge any such
lists in
writing upon request.
|
17
4.
|
Confidentiality.
At all times, both during my employment and after its termination,
I will
keep and hold all such Proprietary Information in strict confidence
and
trust. I will not use or disclose any Proprietary Information without
the
prior written consent of the Company, except as may be necessary
to
perform my duties as an employee of the Company for the benefit of
the
Company. Upon termination of my employment with the Company, I will
promptly deliver to the Company all documents, data and materials
of any
nature pertaining to my work with the Company. I will not take with
me any
documents or materials or copies thereof containing any Proprietary
Information.
|
5.
|
Work
for Hire; Assignment of Inventions.
I
acknowledge and agree that any copyrightable works prepared by me
either
alone or jointly with others, within the scope of my employment are
“works
for hire” under the United States Copyright Act and that the Company will
be considered the author and owner of such copyrightable works. In
the
event that any such copyrightable works are not deemed to be “works made
for hire,” I hereby irrevocably assign all of my right, title and interest
in and to such copyrightable works to Company. I agree that all Inventions
that (i) are developed using equipment, supplies, facilities or trade
secrets of the Company, (ii) result from work performed by me for
the
Company, or (iii) relate to the Company’s business or current or
anticipated research and development (collectively, “Company Inventions”),
will be the sole and exclusive property of the Company and are hereby
irrevocably assigned by me to the
Company.
|
6.
|
Assignment
of Other Rights.
In addition to the foregoing assignment of Company Inventions to
the
Company, I hereby irrevocably transfer and assign to the Company:
(i) all
worldwide patents, patent applications, copyrights, mask works, trade
secrets and other intellectual property rights in any Company Invention;
and (ii) any and all Moral Rights (as defined below) that I may have
in or
with respect to any Company Invention. I also hereby forever waive
and
agree never to assert any and all Moral Rights I may have in or with
respect to any Company Invention, even after termination of my work
on
behalf of the Company. “Moral Rights” mean any rights to claim authorship
of a Company Invention, to object to or prevent the modification
of any
Company Invention, or to withdraw from circulation or control the
publication or distribution of any Company Invention, and any similar
right, existing under judicial or statutory law of any country in
the
world, or under any treaty, regardless of whether or not such right
is
denominated or generally referred to as a “moral
right”.
|
7.
|
Assistance.
For no consideration in addition to my salary or wages during my
employment, I agree to assist the Company in every proper way to
obtain
for the Company and enforce patents, copyrights, mask work rights,
trade
secret rights and other legal protections for the Company’s Inventions in
any and all countries. I will execute any documents that the Company
may
reasonably request for use in obtaining or enforcing such patents,
copyrights, mask work rights, trade secrets and other legal protections.
My obligations under this paragraph will continue beyond the termination
of my employment with the Company, provided that the Company will
compensate me at a reasonable rate after such termination for time
or
expenses actually spent by me at the Company’s request on such assistance.
I appoint the Secretary of the Company as my attorney-in-fact to
execute
documents on my behalf for this purpose. I hereby waive and quitclaim
to
Company any and all claims, of any nature whatsoever, which I now
or may
hereafter have for infringement of any proprietary rights assigned
hereunder to Company.
|
18
8.
|
No
Breach of Prior Agreement.
I
represent that my performance of all the terms of this Agreement
and my
duties as an employee of the Company will not breach any invention
assignment, proprietary information, confidentiality or similar agreement
with any former employer or other party. I represent that I did not
bring
with me to the Company or use in the performance of my duties for
the
Company any documents or materials or intangibles of a former employer
or
third party that are not generally available to the public or have
not
been legally transferred to the
Company.
|
9.
|
Efforts;
Duty Not to Compete.
I
understand that my employment with the Company requires my undivided
attention and effort during normal business hours. While I am employed
by
the Company, I will not, without the Company’s express prior written
consent, provide services to, or assist in any manner, any business
or
third party which competes with the current or planned business of
the
Company.
|
10.
|
Notification.
I
hereby authorize the Company to notify my actual or future employers
of
the terms of this Agreement and my responsibilities
hereunder.
|
11.
|
Non-Solicitation
of Suppliers/Customers.
During my employment with the Company and after termination of my
employment, I will not directly or indirectly solicit or take away
suppliers or customers of the Company if the identity of the supplier
or
customer or information about the supplier or customer relationship
is a
trade secret or is otherwise deemed confidential information within
the
meaning of Chinese law.
|
12.
|
Injunctive
Relief.
I
understand that in the event of a breach or threatened breach of
this
Agreement by me the Company may suffer irreparable harm and will
therefore
be entitled to injunctive relief to enforce this Agreement, without
prejudice to any other rights or remedies that Company may have for
a
breach of this Agreement.
|
13.
|
Governing
Law; Severability.
This Agreement will be governed by and construed in accordance with
the
laws of New York, without giving effect to that body of laws pertaining
to
conflict of laws. If any provision of this Agreement is determined
by any
court or arbitrator of competent jurisdiction to be invalid, illegal
or
unenforceable in any respect, such provision will be enforced to
the
maximum extent possible given the intent of the parties hereto. If
such
clause or provision cannot be so enforced, such provision shall be
stricken from this Agreement and the remainder of this Agreement
shall be
enforced as if such invalid, illegal or unenforceable clause or provision
had (to the extent not enforceable) never been contained in this
Agreement. Notwithstanding the forgoing, if the value of this Agreement
based upon the substantial benefit of the bargain for any party is
materially impaired, which determination as made by the presiding
court or
arbitrator of competent jurisdiction shall be binding, then this
Agreement
will not be enforceable against such affected party and both parties
agree
to renegotiate such provision(s) in good
faith.
|
19
14.
|
Counterparts.
This Agreement may be executed in any number of counterparts, each
of
which when so executed and delivered will be deemed an original,
and all
of which together shall constitute one and the same
agreement.
|
15.
|
Titles
and Headings.
The titles, captions and headings of this Agreement are included
for ease
of reference only and will be disregarded in interpreting or construing
this Agreement. Unless otherwise specifically stated, all references
herein to “sections” and “exhibits” will mean “sections” and “exhibits” to
this Agreement.
|
16.
|
Entire
Agreement.
This Agreement, the Employment Agreement, the Employee’s Non-Compete
Agreement, and the documents referred to herein constitute the entire
agreement and understanding of the parties with respect to the subject
matter of this Agreement, and supersede all prior understandings
and
agreements, whether oral or written, between or among the parties
hereto
with respect to the specific subject matter
hereof.
|
17.
|
Amendment
and Waivers.
This Agreement may be amended only by a written agreement executed
by each
of the parties hereto. No amendment of or waiver of, or modification
of
any obligation under this Agreement will be enforceable unless set
forth
in a writing signed by the party against which enforcement is sought.
Any
amendment effected in accordance with this section will be binding
upon
all parties hereto and each of their respective successors and assigns.
No
delay or failure to require performance of any provision of this
Agreement
shall constitute a waiver of that provision as to that or any other
instance. No waiver granted under this Agreement as to any one provision
herein shall constitute a subsequent waiver of such provision or
of any
other provision herein, nor shall it constitute the waiver of any
performance other than the actual performance specifically
waived.
|
18.
|
Successors
and Assigns; Assignment.
Except as otherwise provided in this Agreement, this Agreement, and
the
rights and obligations of the parties hereunder, will be binding
upon and
inure to the benefit of their respective successors, assigns, heirs,
executors, administrators and legal representatives. The Company
may
assign any of its rights and obligations under this Agreement. No
other
party to this Agreement may assign, whether voluntarily or by operation
of
law, any of its rights and obligations under this Agreement, except
with
the prior written consent of the
Company.
|
19.
|
Further
Assurances.
The parties agree to execute such further documents and instruments
and to
take such further actions as may be reasonably necessary to carry
out the
purposes and intent of this
Agreement.
|
20.
|
Not
Employment Contract.
I
understand that this Agreement does not constitute a contract of
employment or obligate the Company to employ me for any stated period
of
time.
|
20
This
Agreement shall be effective as of Effective Date as defined in the Employment
Agreement.
EMPLOYEE
|
|||
By:
/s/
Xxxxx Xx
|
|||
Xxxxx
Xx
|
|||
By:
/s/ Xxxxxxxx X. Xxx
|
|||
Name:
Xxxxxxxx
X. Xxx
|
|||
Title:
Co-Chief
Executive Officer
|
Exhibit
B
Non-Compete
Agreement
Dear
Xxxxx Xx,
As
an
employee of Shanghai Century Acquisition Corporation, a Cayman Islands company
(as contemplated in the employment agreement between Shanghai Century
Acquisition Corporation and you (the “Employment Agreement”)), or with any of
its subsidiaries, including, without limitation, (collectively, the “Company”),
you must execute and deliver a covenant not to compete with the Company during
your employment and for a period of two (2) years thereafter. The terms and
conditions set forth below, as applicable, shall, upon your acceptance thereof,
become an agreement between you and the Company.
Covenant
Not to Compete
It
is
hereby agreed that, from the Effective Date of the Employment Agreement with
the
Company and so long as you are an employee, consultant or serve in a similar
capacity with the Company or any of its Subsidiaries, you shall devote the
majority of your time and attention to the Business and affairs of the Company
and its Subsidiaries and shall in all respects properly perform your duties
under your employment agreement as is required in the judgment of the Board.
Subject to the approval of the majority vote of the Board (from which vote
the
Employee shall recuse himself) that such service would be in the best interests
of the Company, the Employee may serve as a director, officer, adviser or
consultant of other leasing companies.
If
you
are no longer employed by or acting as a consultant for the Company or its
Subsidiaries and you have previously been employed by and/or acted as a
consultant for the Company for a continuous period of at least three (3) months,
you shall not be employed by or participate in any manner in the management
or
operation of any business or entity that is or may be engaged in the business
of
acting as a company engaged in the provision of financial leasing or other
leasing activities n the PRC for a period of two (2) years after the termination
of your employment and/or consultancy with the Company.
Covenant
Not to Solicit Employees
While
employed by Company and for a period of 18 months after the termination of
your
employment with Company, you shall not, directly or indirectly, solicit for
employment any person who was employed by Company or retained as a consultant
during your employment with Company. In the event that you hire or employ any
such person during such 18 month period (without soliciting such person in
violation of this foregoing restriction), you shall reimburse the Company for
any and all costs and expenses incurred by the Company to replace such person
(including, without limitation, costs and expenses incurred for recruiting,
hiring and training).
21
Covenant
Not to Divert Business
For
a
period of two (2) years after the termination of your employment with Company,
you shall not, directly or indirectly:
(i) work
as
an employee, employer, consultant, agent, principal, partner, manager,
stockholder, officer, director, or in any other individual or representative
capacity for any person or entity who or which was a customer of Company during
your employment with Company, without the Company’s written consent;
or
(ii) call
on,
solicit, or take away for you or for any other person or entity any person
or
entity who or which was a customer of Company, or with which Company was in
negotiations to become a customer of Company, during your employment with
Company.
Company
Rights if You Violate this Agreement
In
the
event that you do not comply with the terms of this Agreement, any profit
sharing or stock options to which you would otherwise be entitled will be
forfeited.
In
the
event you do not comply with the terms of this Agreement, we also reserve the
right to discharge you as an employee. Furthermore, we reserve the right to
recover monetary damages from you, and we may also recover punitive damages
to
the extent permitted by law. In the event that monetary damages are an
inadequate remedy for any harm suffered by us as a result of a breach of this
Agreement by you, we may also seek other relief, including an order of specific
performance or injunctive relief. You will not seek, and you agree to waive
any
requirement for, the securing or posting of a bond in connection with our
seeking or obtaining such relief.
You
further agree to indemnify and hold us harmless from any damages, losses, costs
or liabilities (including legal fees and the costs of enforcing this indemnity
agreement) arising out of or resulting from your failure to abide by the terms
of this Agreement.
At-Will
Employment
You
agree
and understand that, except as may be provided in any employment agreement
between you and the Company, your employment with the Company is “at will,”
meaning that it is not for any specified period of time and can be terminated
by
you or by the Company at any time, with or without advance notice, and for
any
or no particular reason or cause. You agree and understand that it also means
that job duties, title and responsibility and reporting level, compensation
and
benefits, as well as the Company’s personnel policies and procedures, may be
changed at any time at-will by the Company. You understand and agree that
nothing about the fact or the content of this Agreement is intended to, nor
should be construed to, alter the at-will nature of your employment with the
Company. You also understand and agree that the at-will nature of employment
with the Company can only be changed by a majority vote of the Company’s Board
in an express writing signed and dated by it and by you.
Acknowledgment
You
agree
that, in light of the substantial benefits you will receive as our employee,
the
terms contained in this Agreement are necessary and reasonable in all respects
and that the restrictions imposed on you are reasonable and necessary to protect
our legitimate business interests. You acknowledge that a portion of the salary
you receive during your employment with the Company constitutes due
consideration for your obligations hereunder. Additionally, you hereby
acknowledge and agree that the restrictions imposed on you by this Agreement
will not prevent you from obtaining employment in your field of expertise or
cause you undue hardship.
22
Governing
Law
This
Agreement shall be governed by and construed in accordance with the laws of
the
New York, without regard to any conflicts of laws provision
thereof.
By
accepting this Agreement, you acknowledge that, given the nature of the
Company’s business, the provisions contained in this Agreement contain
reasonable limitations as to time, geographical area and scope of activity
to be
restrained, and do not impose a greater restraint than is necessary to protect
and preserve the Company and to protect the Company’s legitimate interests. If,
however, the provisions of this Agreement are determined by any court of
competent jurisdiction or any arbitrator to be unenforceable by reason of its
extending for too long a period of time or over too large a geographic area
or
by reason of its being too extensive in any other respect, or for any other
reason, it will be interpreted to extend only over the longest period of time
for which it may be enforceable and over the largest geographical area as to
which it may be enforceable and to the maximum extent in all other aspects
as to
which it may be enforceable, all as determined by such court or arbitrator
in
such action.
Please
confirm your agreement with the foregoing by signing and returning directly
to
the undersigned the duplicate copy of this letter enclosed
herewith.
Very
truly yours,
|
||
SHANGHAI
CENTURY ACQUISITION CORPORATION
|
||
|
|
|
By: |
/s/
Xxxxxxxx X. Xxx
|
|
Name:
|
Xxxxxxxx
X. Xxx
|
|
Title:
|
Co-Chief
Executive Officer
|
Accepted
and agreed to as
of
the
date first above written:
/s/
Xxxxx Xx
|
|||
Xxxxx
Xx
|
23
Exhibit
C
Form
of Release Certificate
Xxxxx
Xx
(“You”) and Shanghai Century Acquisition Corporation (the “Company”) have agreed
to enter into this Release Certificate on the following terms:
Within
ten (10) days after you sign this Release Certificate (which you may sign no
sooner than the last day of your employment with the Company), you will become
eligible to receive severance benefits in accordance with the terms of your
Employment Agreement dated [date] (“Employment Agreement”).
In
return
for the consideration described in the Agreement, you and your heirs, assigns
and representatives completely release Shanghai Century Acquisition Corporation,
its affiliated, related, parent or subsidiary corporations, and its and their
present and former directors, officers, agents, and employees (the “Released
Parties”) from all claims of any kind, known and unknown, which you may now have
or have ever had against any of them, or arising out of your relationship with
any of them, including all claims arising from your employment or the
termination of your employment, whether based on contract, tort, statute, local
ordinance, regulation or any comparable law in any jurisdiction (“Released
Claims”). By way of example and not in limitation, the Released Claims shall
include any claims arising under Title VII of the Civil Rights Act of 1964,
the
Americans with Disabilities Act, the Worker Adjustment and Retraining
Notification Act, the Age Discrimination in Employment Act, the Older Workers
Benefit Protection Act, the Employee Retirement Income Security Act, the
Sarbanes Oxley Act, and the New York Human Rights Law, or any comparable law
of
any other jurisdiction or nation, as well as any claims asserting wrongful
termination, breach of contract, breach of the covenant of good faith and fair
dealing, negligent or intentional misrepresentation, and defamation and any
claims for attorneys’ fees. You also affirm that neither you or anyone acting on
your behalf has taken any action to initiate or cause to be initiated against
any of the Released Parties any lawsuit, compliance review, administrative
claim, investigation or proceedings of any kind which pertaining any manner
to
the Released Claims.
You
acknowledge that the release of claims under the Age Discrimination in
Employment Act (“ADEA”) is subject to special waiver protection. Therefore, you
acknowledge the following: (a) you have had 21 days to consider this Release
Certificate (but may sign it at any time beforehand if you so desire); (b)
you
have the right to consult an attorney in doing so; (c) you can revoke this
Release Certificate within seven (7) days of signing it by sending a certified
letter to that effect to [name and address]; and that (d) notwithstanding the
foregoing, the portion of this Release Certificate that pertains to the release
of claims under the ADEA shall not become effective or enforceable and no funds
shall be exchanged until the 7-day revocation period has expired, but that
all
other provisions of this Release Certificate will become effective upon its
execution by the parties.
You
also
acknowledge that: (a) you will receive no other compensation, benefits or
consideration other than that which is set forth in your Employment Agreement;
(b) said consideration is satisfactory and adequate in exchange for your
promises and release contained herein; (c) the Company has fulfilled all of
its
obligations under your Employment Agreement; (d) you will not take any action
of
make any statement inconsistent with the terms of this release or any Ancillary
Agreement; (e) you will comply with all of your obligations under all agreements
with the Company; and (f) you will take all appropriate actions to resign any
and all positions which you have with the Company or any Affiliate
thereof.
24
The
parties agree that this Release Certificate and the Employment Agreement, the
Key Employee Invention Assignment and Confidentiality Agreement, and the
Employee’s Non-Compete Agreement contain all of our agreements and
understandings with respect to their subject matter, and may not be contradicted
by evidence of any prior or contemporaneous agreement, except to the extent
that
the provisions of any such agreement have been expressly referred to in this
Release Certificate or the Agreement as having continued effect. It is agreed
that this Release Certificate shall be governed by the laws of the State of
New
York. If any provision of this Release Certificate or its application to any
person, place, or circumstance is held by a court of competent jurisdiction
to
be invalid, unenforceable, or void, the remainder of this Release Certificate
and such provision as applied to other person, places, and circumstances will
remain in full force and effect.
Please
note that this Release Certificate may not be signed before the last day of
your
employment with the Company, and that your eligibility for severance benefits
is
conditioned upon meeting the terms set forth in the Agreement.
Date:
|
||
[Employee]
|
||
Date:
|
||
[Company
Signatory]
|
25