AMENDMENT TO
Exhibit
10.4
AMENDMENT
TO
This
Amendment to Employment Agreement (this “Amendment”), dated November 15, 2009,
is made by and among American Oriental Bioengineering Inc., a Nevada corporation
(the “Company”), and Xxxxxxxx Xx, xxxxxxxx xx Xxxxxxx Xxxxxxxx, Xxxxxx,
Xxxxx (the
“Executive”). Any capitalized term not defined herein shall have the
meaning for such term specified in the Employment Agreement (as defined
below).
WHEREAS, the Executive and the
Company entered into an Employment Agreement dated April 9, 2008, and effective
as of April 20, 2008 (the “Employment Agreement”);
WHEREAS, under the
Employment Agreement, the Executive was initially granted an option to
purchase a certain number of shares of common stock (the "Initial Option
Grant"), which number was based upon the Company's internal method for
valuing each share of common stock underlying the stock option at the time
of the grant (the "Per Share Value"), to reach a total annual compensation
value for accounting purposes (the "Total Value") ;
WHEREAS, as the result of an
error in the calculation of the Per Share Value, the number of shares
issuable under the Initial Option Grant was incorrect and should have been lower
although the Total Value remains unchanged and the exercise price remains
unchanged from the date of the Initial Option Grant;
WHEREAS, the Initial
Option Grant should be reduced and the Compensation Committee of the Board of
Directors has ratified, approved and confirmed in all respects, the
reduction in the Initial Option Grant;
NOW
THEREFORE, in consideration of the foregoing and for other
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as
follows:
1. Section
7 of the Employment Agreement is hereby amended by deleting “167,771” as the
number of shares of common stock that the Executive can purchase under the stock
options, and replacing it with “61,040.”
2. Except
as specifically amended hereby, the Employment Agreement shall continue in full
force and effect unmodified and the parties hereby reaffirm the
same.
3. This
Amendment shall be construed in accordance with and governed by the laws of the
State of New York, without giving effect to the conflict of laws principles
thereof.
4. This
Amendment may be signed in any number of counterparts, each of which shall be an
original and all of which shall be deemed to be one and the same instrument,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. A facsimile signature shall be deemed to be an original
signature for purposes of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first above written.
| AMERICAN ORIENTAL BIOENGINEERING, INC. | |
| By: /s/ Xxxx Xxx | |
| Name: Xxxx Xxx | |
| Title: Chairman and Chief Executive Officer |
EXECUTIVE:
/s/
Xxxxxxxx
Xx
Xxxxxxxx
Xx
