EMPLOYMENT AGREEMENT
Exhibit
10.1
THIS
EMPLOYMENT AGREEMENT (“Agreement”) is made
and entered into by and between China Intelligent Lighting and Electronics, Inc.
(“Company”), a
Delaware corporation, and Xxx Xxxxx (“Employee”), effective
as of May 5, 2010 (the “Effective
Date”). (Company and Employee are sometimes referred to herein
as “party” or
collectively as the “parties.”)
RECITALS
WHEREAS,
the Company wishes to employ and the Employee has agreed to supply his service
in the capacity of Chief Financial Officer with duties encompassing the
operations of the Company and the Company’s subsidiaries, on the terms and
conditions set out in this Agreement, which shall supersede and replace all
prior written, oral, or implied agreements, if any, between Employee and the
Company; provided, however, the Employee shall remain bound by any
confidentiality, nondisclosure, and invention assignment agreement(s) previously
executed in favor of the Company, to the extent such ancillary agreements
exist;
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, and the continued employment of Employee by the Company under this
Agreement, the parties agree as follows:
ARTICLE
1
EMPLOYMENT
Company
hereby employs Employee and Employee hereby accepts employment from Company,
effective as of the Effective Date. Employee agrees to perform the
services and to comply faithfully with his obligations of employment, under the
terms and conditions specified in this Agreement, and pursuant to the policies
and procedures of the Company that may be issued from time to time.
ARTICLE
2
TERM
Section 2.1 Initial
Term and Renewal. The initial term of this Agreement shall be
for a period of twelve (12) months commencing on the Effective Date (the “Initial Term”),
unless terminated earlier pursuant to the provisions of Article 5 of this
Agreement. This Agreement shall automatically renew for an additional
twelve (12) month period of employment on the expiration date of the Initial
Term (each, a “Subsequent Term”),
and on each successive anniversary date thereafter (each such date, an “Expiration Date”),
unless either party gives written notice to the other party at least thirty (30)
days prior to any Expiration Date that the Agreement is not being renewed and
shall terminate on that Expiration Date, unless terminated earlier pursuant to
the provisions of Article 5 of this Agreement. The Initial Term and
each successive one year period thereafter during which Employee shall perform
services pursuant to this Agreement shall be referred to herein as the “Term.”
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ARTICLE
3
COMPENSATION
AND BENEFITS
Section
3.1 Base
Salary. For
all of the services to be rendered by Employee hereunder, Company shall pay to
Employee an annual base salary of US$48,873 (“Salary”), beginning
on the Effective Date of this Agreement. Any base Salary payable
hereunder shall be paid in accordance with the Company’s regular payroll
practices, as in effect from time to time, and shall be subject to standard
payroll deductions and withholdings as required by applicable law.
Section
3.2 Adjustment
to Salary. Employee’s Salary may be changed from time to time
by mutual agreement of the Employee and the Company. Any such
agreement shall be evidenced by a written amendment of this Agreement and signed
by both parties.
Section
3.3 Stock
Options. Subject to approval by
the Company’s Board of Directors, on the pricing date of the Company’s
contemplated public offering of shares of common stock, $0.0001 par value per
share (“Common
Stock”), on a registration statement on Form S-1 (File No. 333-164925)
(the “Grant
Date”), Employee shall be granted options (the “Options”) to purchase
Twenty-Five Thousand (25,000) shares of Common Stock of the Company with an
exercise price equal to the price of the shares of Common Stock sold in the
public offering. The Options shall vest according to the following
schedule: 25% of the Options shall vest three (3) months after the
Grant Date, 25% of the Options shall vest six (6) months after the Grant Date,
25% of the Options shall vest nine (9) months after the Grant Date, and the
remaining 25% Options shall vest twelve (12) months after the Grant
Date. The Options shall expire five (5) years after the Grant Date,
provided, however, that Employee remains continuously employed by the Company
during the applicable five-year period. In the event that the
Employee is terminated without “Cause” pursuant to Section 5.3 below or the
Employee terminates his employment for Good Reason pursuant to Section 5.1(ii)
below, then all Options or shares, as applicable, that are not vested shall
immediately vest on the date of termination. All options that are
vested at the time of termination of employment must be exercised within thirty
(30) days of termination of employment, provided, however, that all options may
be immediately cancelled by the Company if Employee terminates his employment
without Good Reason or if Employee’s employment is terminated for “Cause,” as
defined in Section 5.2 below.
Section
3.4 Company
Paid Holidays. Employee will be eligible for all Company paid
holidays that are provided to employees of the Company.
Section
3.5 Reimbursement
of Expenses. Employee shall be reimbursed for reasonable
travel, hotel, entertainment, and other business related
expenses. All reimbursement of expenses are subject to the Company’s
policies in effect at the time on pre-approval of certain business expenses and
reimbursement procedures. Employee shall produce satisfactory
supporting vouchers, receipts, and other documentation in connection with such
expenses before such reimbursement is made in accordance with applicable Company
policy.
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ARTICLE
4
DUTIES
AND RESPONSIBILITIES
Section
4.1 Duties of
Employee. Employee agrees to serve as Chief Financial Officer,
and will report to the Chief Executive Officer and the Company’s Board of
Directors. Employee shall perform the duties and functions and have
the responsibilities commensurate with such position as may be assigned from
time to time. Employee’s duties as Chief Financial Officer shall
encompass the operations of the Company and the Company’s
subsidiaries. Employee shall use his best skills and ability,
consistent with sound business practices, to faithfully and diligently perform
his duties and responsibilities hereunder. Employee shall devote his
full working time and attention to the business of the Company and its related
entities.
During
his employment with Company, Employee shall not (i) engage in any other
employment or business opportunity outside of his employment with the Company
that may interfere with his ability to perform his duties under this
Agreement, without
the express written authorization of the Company; or (ii) engage, directly or
indirectly, in any other employment, business, commercial, or professional
activity (whether or not pursued for pecuniary advantage) that is or may be
competitive with, or that might create a conflict of interest with, the business
of Company or Company’s related entities or affiliates.
Section
4.2 Compliance
with Law. Employee agrees to comply with any and all
governmental laws, regulations, and policies in connection with his actions as
an employee of the Company. Employee shall conduct himself in
accordance with the highest business standards as are reasonably and customarily
expected of such position. Employee agrees to fully cooperate and
participate in any investigation conducted by the Company relating to its
interests or as may be required by applicable law.
Section
4.3 Policies
and Procedures. Employee is expected to abide by all Company
policies and procedures. Company may issue policies, rules,
regulations, guidelines, procedures or other informational material, whether in
the form of handbooks, memoranda, or otherwise, relating to its employees and
Employee agrees to comply with all such policies applicable to
Employee.
Section
4.4 Confidential
Information and Trade Secrets. Employee acknowledges that, as
a condition of his employment hereunder, Employee agrees to execute and abide by
the Company’s confidentiality, non-disclosure, invention assignment, and similar
agreements that are presented to Employee to protect the Company’s trade secret,
proprietary and business interests. Employee hereby acknowledges and
agrees that such agreements shall survive termination of employment and this
Agreement and shall remain in force following such termination regardless of the
reason for the termination.
ARTICLE
5
TERMINATION
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Employee’s
employment relationship with the Company will terminate upon the happening of
one of the following defined events, which shall effect a termination of this
Agreement on the effective date of any such termination of employment (the
“Termination
Date):
Section
5.1 The
Employee’s Right to Terminate. The Employee may terminate his
obligations under this Agreement during the Term:
(i) RESERVED.
(ii) Good
Reason: for “Good Reason.” “Good Reason” shall mean
any of the following, without the Employee’s written consent: (a) upon a
material breach or default of any term of this Agreement by the Company, or (b)
any material reduction in the Employee’s duties, position, authority or
responsibilities with the Company relative to the duties, position, authority or
responsibilities in effect immediately prior to such reduction; provided that
Company has not cured or remedied such Good Reason within fifteen (15) days
after written notice of the Good Reason from the Employee.
Section
5.2 The
Company’s Right to Terminate for “Cause”. The Company may
immediately terminate the Employee’s employment for “Cause” under this Agreement
at any time during the Term upon the occurrence of any of the following
events:
(i) Employee
commits an act or acts of dishonesty, fraud, embezzlement, or misappropriation
of funds or proprietary information in connection with his employment duties or
responsibilities; or
(ii) Employee’s
conviction of, or plea of nolo contendere to, a felony or a crime involving
moral turpitude (other than minor traffic violations); or
(iii) Employee
materially breaches his obligations under this Agreement, including failure to
perform his job duties satisfactorily or failure to follow Company policies or
any directive of the Company; or
(iv) Employee’s
willful or gross misconduct in connection with his employment
duties.
Section
5.3 Company’s
Right to Terminate Without Cause. The Company may terminate the
Employee’s employment under this Agreement at any time during the Term at the
discretion of the Company, without Cause, after the Employee has received thirty
(30) days prior written notice from the Company.
Section
5.4 Death or
Disability. The Employee’s employment under this Agreement
shall also terminate upon the occurrence of the following:
(i) the
Employee’s employment under this Agreement shall automatically terminate upon
the occurrence of the death of the Employee during the Term of this Agreement;
or
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(ii) notice
of termination from the Company after the Employee has become permanently
disabled, or disabled for a period exceeding 120 consecutive days or 120 days
calculated on a cumulative basis over any one year period during the Term of
this Agreement, such that Employee is no longer able to perform the essential
functions of his job even with reasonable accommodation pursuant to applicable
law.
Section
5.5 Compensation
Due to the Employee on Termination. In the event of the
termination of the Employee’s employment under this Agreement pursuant to any
provision as set forth above, the Company shall pay to the Employee on the date
of termination only the amount of Salary pursuant to Section 3.1 of this
Agreement that is earned but unpaid as of the date of termination and any
unreimbursed business expenses incurred as of the termination date pursuant to
Section 3.5 of this Agreement, but Employee shall not be entitled to receive any
other payments, compensation or benefits from the Company under this
Agreement.
Section
5.6 Payment
in Lieu of Notice. Company reserves
the right (but is not obligated) to make a payment in lieu of any notice of
termination of employment which Company or Employee is required to
give.
Section
5.7 Return of
Company Property. Upon the termination of employment for any
reason, Employee shall promptly return to Company any and all equipment or
property owned by Company including, but not limited to, any and all client
materials, copies of documents and photographs, models, prototypes, tools, and
supplies, as well as inventory, records, documents, manuals, reports, customer
lists, operations manuals, and any other written information, records, or books
relating in any manner whatsoever to the business of Company, whether prepared
by Company or otherwise coming into Employee’s possession.
ARTICLE
6
MISCELLANEOUS
Section
6.1 Notices. Any
notice given under this Agreement shall be sufficient if given in writing and
personally delivered or sent by registered or certified mail, return receipt
requested, postage prepaid, to the Company at its principal place of business or
to Employee at his last known residence address.
Section
6.2 Governing
Law. This Agreement shall be interpreted, construed, and
governed under and according to the laws of the State of Delaware.
Section
6.3 Change,
Modification, Waiver. No change or modification of this
Agreement shall be valid unless it is in writing and signed by each of the
parties hereto. No waiver of any provision of this Agreement shall be
valid unless it is in writing and signed by the party against whom the waiver is
sought to be enforced. The failure of a party of insist upon strict
performance of any provision of this Agreement in any one or more instances
shall not be construed as a waiver or relinquishment of the right to insist upon
strict compliance with such provision in the future.
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Section
6.4 Entire
Agreement. This Agreement constitutes the entire, final and
complete and exclusive agreement between the parties regarding the subject
matter hereof and supersedes all previous agreements or representations, whether
written, oral or implied, with respect to employment by the Company provided,
however, the Employee shall remain bound by any confidentiality, nondisclosure,
and invention assignment agreement(s) previously executed in favor of the
Company, to the extent such ancillary agreements exist. There are no
terms, promises, representations, agreements, or understandings between the
parties relating to the subject matter of this Agreement, which are not fully
expressed herein.
Section
6.5 Assignability. This
Agreement is personal in nature, and neither this Agreement nor any part of any
obligation herein shall be assignable by Employee. The Company shall
be entitled to assign this Agreement to any affiliate or successor of the
Company that assumes the ownership or control of the business of the Company,
and the Agreement shall inure to the benefit of any such successor or
assign.
Section
6.6 Legal
Construction. If any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof, and this Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein. In addition, if any court of competent jurisdiction
determines that any of the provisions set forth herein are unenforceable because
of the duration or geographic scope of such provision, such court shall have the
power to reduce the duration or scope of such provision as the case may be, to
the extent necessary to render such provision enforceable.
Section
6.7 Paragraph
Headings. The paragraph headings used in this Agreement are
included solely for convenience and shall not affect or be used in connection
with the interpretation of this Agreement.
Section
6.8 Legal
Fees and Costs. Except as otherwise provided herein, in the event
that any party hereto shall institute any litigation or other proceeding in
order to construe or enforce this Agreement, the prevailing party therein shall
be entitled to recover its reasonable attorney’s fees and costs incurred in
connection therewith.
Section
6.9 Interpretation.
This Agreement has been negotiated at arm’s length and between and among
parties sophisticated and knowledgeable in the matters dealt with in this
Agreement. Accordingly, none of the Parties shall be presumptively
entitled to have any provisions of the Agreement construed against any of the
other Parties in accordance with any rule of law, legal decision, or doctrine,
such as the doctrine of contra
proferentem, that would require interpretation of any ambiguities in this
Agreement against the party that has drafted it.
[SIGNATURES
ON FOLLOWING PAGE]
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WHEREFORE,
the parties hereto have executed this Agreement on the dates indicated below, to
be effective as of the Effective Date, regardless of the dates actually
signed.
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Dated: May
5, 0000
|
XXXXX
INTELLIGENT LIGHTING AND ELECTRONICS, INC.
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By:
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/s/ Xx Xxxxxx | |
| Name: Xx Xxxxxx | |||
| Title: Chief Executive Officer | |||
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Dated: May
5, 2010
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KUI
(XXXXX) JIANG
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|
/s/ Kui (Xxxxx) Jiang | ||
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