EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “Agreement”) is effective as of March 12,
2008,
Between:
|
(1)
|
China
Architectural Engineering, Inc. (CAE) a company incorporated in
the USA
whose office is at Unit B, 63/17, Bank of Xxxxx Xxxxx, 0 Xxxxxx
Xxxx, Xxxx
Xxxx (the “Company”), and
|
|
(2)
|
Xxxxxxx
Xxxx Xxxxxxxx whose address is located in Tampa Florida, USA
(the “Employee”).
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It
is
agreed as follows:
Definitions:
In
this
agreement the following expressions shall have the following
meanings:
“Business”
means all and any
business, trade or other commercial activities of the Company
or any Group Company;
“Board”
means the Board of Directors of the Company or a duly authorized committee
of
the Board of Directors;
“Confidential
Information” means all and any information, knowledge or data (whether or not
recorded in documentary form or on computer disk or tape) not generally known
or
available to the public which Employee may have learned, discovered,
developed, conceived, originated or prepared during or as a result of the
Employment
relating to the operations, business methods, corporate plans, management
systems, finances, new business opportunities, products, services, technology,
customers, clients, policies, procedures, accounts, personnel, techniques,
concepts,
or research and development projects, of the Company or any Group Company
and any
and all trade secrets, secret formulae, process, inventions, designs,
know-how,
discoveries, technical specifications, and other technical information
relating
to the creation, production or supply of any past, present or future product
or
service of the Company or any Group Company;
“Employment”
means the Employees employment in accordance with the terms and conditions
of this Agreement;
“Group
Company” means the Company and any company which is a direct or indirect
subsidiary of the Company from time to time;
“Termination
Date” means the date on which the Employment is terminated howsoever
caused.
TERM
AND
APPOINTMENT
According
to the terms of this Agreement, the Employee shall be appointed as the President
of “CAE Building Systems, Inc. (U.S.A.)”, a subsidiary company to be
incorporated in and according to the laws of the United States of America
upon
the execution of this Agreement.
Subject
to the terms of this Agreement, employment shall commence on March 3, 2008,
and
shall continue for a period of five (5) years from such date unless or until
terminated by either party according to the terms of this Agreement. Thereafter,
this Agreement shall automatically be renewed for successive one-year terms
for
a period of three (3) years unless either party shall give the other no less
than one hundred eighty (180) days prior written notice of intent not to
renew
this Agreement.
Employee
shall bear his individual income tax by himself according to the applicable
law
and shall be responsible to properly report his personal income tax to his
country or place of residency. Notwithstanding the Employee's reporting and
payment obligations with respect to income taxes, Employee agrees that the
Company or Group Company is entitled to withhold the tax according to applicable
law.
DUTIES
During
the Employment the Employee will:
Devote
his best efforts, energies, skills and attention on a full-time basis to
the
business and affairs of the Company and Group Company;
Faithfully
and diligently perform all such duties and exercise all such powers that
are
commensurate with Employee's position and as are lawfully and properly assigned
to him from time to time by the Chief Executive Officer or the Board, whether
such duties or powers relate to the Company or any other Group
Company;
Comply
with all directions lawfully and properly given to him by the Chief Executive
Officer or the Board as they may from time to time deem in the best interest
of
the Company;
Devote
the whole of his time, attention and abilities to the business of the Company
or
any other Group Company for which he is required to perform duties and shall
not
without the Company's prior written consent, be directly or indirectly engaged
in any other business activity, trade or occupation;
Promptly
provide the Company with all such information as it may require in connection
with the business or affairs of the Company and of any other Group Company
for
which he is required to perform duties;
Comply
with any and all governmental laws, regulations, and policies in connection
with
his actions as an employee of the Company and conduct himself in accordance
with
the highest business standards as are reasonably and customarily expected
of
such position; and
2
Fully
cooperate and participate in any investigation
conducted by
the
Company relating
to
its
interests or as may be required by applicable law.
The
Employee shall be required to work during the Company's normal business hours
together with such additional hours as are required in the proper performance
of
his duties. The Employee acknowledges that he has no entitlement to additional
remuneration for any hours worked in excess of the Company's normal business
hours.
The
Employee's normal place of business will be located in the United States
of
America and the Employee acknowledges and accepts that the proper execution
of
his duties will include domestic and international travel.
COMPENSATION
Base
Salary:
The
Employee's base salary shall be one-hundred-ninety-thousand U.S. dollars
($190,000) per annum payable in regular installments in accordance with the
customary payroll practices of the Company and subject to all legally required
deductions and withholdings. Employee's base salary shall be reviewed by
the
Company's Compensation Committee annually in a manner that is consistent
with
the Company's compensation policy. The base salary may be increased from
time to
time by the Compensation Committee in its absolute discretion, the determination
of which shall be based upon such standards, guidelines and factual
circumstances as the Compensation Committee deems relevant.
Medical
Health Insurance:
The
Company acknowledges that the Employee has procured an Insurance Policy,
which
is currently in existence and operational. The Employee shall be fully
reimbursed on a monthly basis for the entire costs of a comprehensive Medical
Health Care Insurance policy including coverage for the Employee and his
Spouse.
The Employee shall have sole discretion for the selection of the Health Care
Insurance policy, provided that insurance coverage and the premium attached
thereto subject to standard adjustments in costs by the insurer, is commensurate
to that which is in operation at time of employment. The Employee shall present
a monthly expense statement for the costs of the policy and the Company shall
reimburse the full amount as expenditure.
Vehicle:
The
Employee shall be fully reimbursed on a monthly basis for the entire costs
of a
motor-vehicle including the cost of the vehicle, insurance, maintenance and
operational expenses. The company shall pay the Employee a monthly allowance
amount of one-thousand dollars U.S. ($1,000.00) for vehicle payment and
insurance and reimburse other operational costs as presented in accordance
with
expense reimbursement as stated herein.
3
Commission:
The
Employee shall be paid a commission on all cash received by the Company on
all
sales of the Company or Group Company's goods or services made pursuant to
contracts originated primarily as the result of the efforts of the Employee
during the term hereof (“Employee Sales”). The commission amount shall be
calculated and paid as follows:
The
Employee shall be paid a cash payment in US dollars an amount equal to one-half
percent (0.50%) of Employee Sales up to Twenty-million dollars U.S.
($20,000,000) per annum. Thereafter, with the commission rate adjusted to
one-quarter percent (0.25 %) for Employee Sales in excess of Twenty-million
dollars U.S. ($20,000,000) per annum.
The
Company’s payment of commissions to Employee for the Employee Sales shall occur
in three payments as follows:
(i)
the
first payment (the “First Payment”) shall consist of 50% of the total
commissions for a contract and shall occur once the Company receives the
first
payment from the customer under such contract, provided
that,
however, the First Payment on each contract for the Employee Sales shall
not
exceed a total of U.S. ($100,000) ;
(ii)
the
second payment shall consist of 80% of total commissions, on a cumulative
basis,
of a such contract, including any amounts paid in the First Payment for such
contract, and shall occur once the Company receives payment of at least 50%
of
the total payments due under such contract; and
(iii)
the
third and final payment shall consist of the remaining 20% of the total
commissions for such contract and shall occur once the Company receives the
last
payment from the customer as required under such contract.
In
addition to the foregoing, the Employee shall be issued shares of the Company
Stock at the end of each fiscal year, which will be valued at the share price
at
closing of 31' December each year and at a total amount equivalent to 2 times
the commission entitled to and received by the Employee during that fiscal
year
up to a limit of Fifty (50) Million dollars ($50,000,000) of Employee Sales
per
annum.
All
stock
issued in relation to commission payments shall have a twelve-month
lock-up period
and shall have no expiration date.
Vacation
The
Employee shall be entitled to fifteen (15) working days paid vacation per
calendar year during his Employment to be taken at time or times convenient
to
the Company. The right to vacation
time shall accrue pro rata during each calendar year of Employment and shall
not
accrue in
excess
of fifteen days in any calendar
year. Vacation time not used in a calendar year shall not be
carried over from year to year and will be forfeited. No payment shall be
made
for vacation not taken. Upon termination of the Employment the Employee shall
be
entitled to payment in lieu of accrued but untaken vacation not including
any
forfeited vacation.
4
Bonus:
The
Company at the sole discretion of the Chief Executive Officer or Board may
from
time to time pay the Employee bonuses in the form of cash and or company
stock
as reward for the Employees individual performance and the Performance of
the
Company.
Holidays
and Sick Days:
The
Employee shall be paid for all standard Holidays observed in the country
of his
domicile. The Employee shall be paid up to ten (10) sick days per year for
time-off required due to illness or injury. The Company may at the discretion
of
the Chief Executive Officer or Board pay the Employee
for additional time-off required as a result of illness or incapacitation
due to
illness or injury.
Reimbursement
for Company Business Expenses:
The
Employee shall be reimbursed for all reasonable and necessary business expenses
incurred by the Employee in connection with the performance of the Employees
duties. Reimbursement shall be made in accordance with the Company's policy
and
procedures upon presentation of itemized statements of such business expenses
in
such detail as the Company may reasonably require consistent with applicable
Company policy. In order to facilitate the Company's prompt reimbursement
of the
Employee's business related expenses as well as the prompt reimbursement
of
other Employees under the direct control and supervision of the Employee,
the
Company shall
provide
the Employee a cash advance from which the Employee shall pay applicable
expenses and be responsible for the accurate accounting of said funds. At
the
earliest possible date, the Company shall provide the Employee with Company
credit card(s) to be used in the course of carrying-out company
business.
INTELLECTUAL
PROPERTY
The
Employee shall disclose full details of any inventions, designs, know-how,
or
discoveries, whether register able or not, or whether patentable or a copyright
work (“Inventions”) in confidence to the Company and shall regard himself in
relation thereto as a trustee for the Company.
All
intellectual property rights in such Inventions shall vest absolutely in
the
Company which shall be entitled, so far as the law permits, to the exclusive
use
thereof.
Notwithstanding
anything stated herein, the Employee shall assign to the Company the copyright
(by way of assignment of copyright) and other intellectual property rights,
if
any, in respect of all
works
written, originated, conceived or made by the Employee (except only those
works
written, originated, conceived or made by the Employee wholly outside his
normal
working hours hereunder and wholly unconnected with the Employment) during
the
continuance of the Employment.
The
Employee agrees that during or after the termination of his Employment he
will
execute such deeds or documents and cooperate in all such acts and things
as the
Company may deem necessary or desirable to substantiate the Company's rights
in
respect of the Inventions and other intellectual property rights referred
to
herein including for the purpose of obtaining letters patent or other privileges
in all such countries as the Company may require.
5
TERMINATION
Either
party may terminate the Employment by providing the other party one hundred
twenty days (120 days) written notice. The Company may, in its sole discretion,
also terminate the Employment immediately without prior written notice by
making
a payment of the base salary and all other compensation and expense amounts
due
Employee in lieu of prior written notice.
Notwithstanding
the foregoing, at any time during the Employment the Company may also terminate
the Employment immediately and with no liability to make further payment
to the
Employee (other than in respect of amounts accrued) for serious misconduct
including without limitation, if the Employee;
Commits
any serious or repeated breach of any of his obligations under this Agreement
or
his Employment;
Is
guilty
of serious misconduct which, in the Board's reasonable opinion, has damaged
or
may damage the business or affairs of the Company or Group Company;
Is
guilty
of conduct which, in the Board's reasonable opinion, brings or is likely
to
bring himself, the Company or Group Company into disrepute;
Is
charged with a criminal offense (other than a road traffic offense not subject
to a custodial sentence);
Is
or
becomes incapacitated or ill to the extent that he is unable to perform the
inherent duties and obligations of the Employment and the Employee has exhausted
all of his entitlement to paid sickness leave as setout herein;
Is
declared bankrupt or makes any arrangement with or for the benefit of his
creditors;
Any
delay
or forbearance by the Company in exercising any right of termination shall
not
constitute a waiver of it.
On
termination of the Employment for whatever reason (and whether in breach
of
contract or otherwise) the Employee will:
Immediately
deliver to the Company all books, documents, papers, computer records, computer
data, credit cards and any other property relating to the business of or
belonging to the Company or Group Company which is in his possession or under
his control. The Employee is not entitled to retain copies or reproductions
of
any documents, papers or computer records relating to the business of or
belonging to the Company or Group Company;
Immediately
resign from any office he holds with the Company or Group Company (and from
related trusteeships) without any compensation for loss of office. Should
the
Employee fail to do so he hereby irrevocably authorizes the Company to appoint
some person in his name and on his behalf to sign any documents and do anything
to give effect to his resignation from office; and
6
Immediately
pay to the Company or, as the case may be, Group Company all outstanding
amounts
due or owed to the Company or Group Company. The Employee confirms that,
should
he fail to do so, the Company is to be treated as authorized to deduct from
any
amounts due or owed to the Employee by the Company (or Group Company) a sum
equal
to
such
amounts.
The
Employee will not at any time after termination of the Employment represent
himself as being in any way concerned with or interested in the business
of, or
employed by, the Company or Group Company.
The
Employee agrees that any payments pursuant to this termination clause will
be in
full and final settlement of any and all claims the Employee may have against
the Company or Group Company arising out of or in connection with his Employment
or its termination, and Employee and the Company agree to execute a general
mutual release in favor of the other and their successors, affiliates and
estates to the fullest extent permitted by law, drafted by and in a form
reasonably satisfactory to the Company and Employee.
SUSPENSION
Where
notice of termination has been served by either party whether in accordance
with
the Termination clause herein or otherwise, the Company shall be under no
obligation to provide work for or assign any duties to the Employee for the
whole or part of the relevant notice period and may require him:
Not
to
attend any premises of the Company or Group Company; and / or
To
resign
with immediate effect from any offices he holds with the Company or Group
Company (and any trusteeships); and or
To
take
any vacation which has accrued in accordance with this Agreement during any
period of suspension as defined herein.
The
Confidentiality provisions of this Agreement shall remain in full force and
effect during any period of suspension.
Any
suspension under this agreement shall be on full salary and benefits during
any
period of suspension.
CONFIDENTIAL
INFORMATION
The
Employee acknowledges:
That
Confidential Information is valuable to the Company and Group
Companies;
That
the
Company will provide the Employee with access to Confidential Information
so
that
the
Employee is properly able to carry out the duties pursuant to this
Agreement;
7
That
the
Employee owes, without limitation, a duty of trust and confidence to the
Company
and a duty to act at all times in the best interest of the Company;
and
That
the
disclosure of Confidential Information to any customer or actual or potential
competitor of the Company or Group Company would place the Company at a serious
competitive disadvantage and would cause immeasurable damage to the Business
and
therefore the restrictions contained herein are reasonable to protect the
Company.
The
Employee undertakes that he will not at any time (whether during the Employment
or for a period of twelve (12) months form Termination date) use for his
own or
another's advantage, or reveal to any third-party person, firm, company or
organization and shall use his best efforts to prevent the publication or
disclosure of any Confidential Information to any third party.
The
limitations imposed on the Employee pursuant to the Confidential Information
clause of this
agreement
shall not apply to Employee's compliance with legal process or subpoena,
or
statements in response to inquiry from a court or regulatory body, provided
that
Employee gives the Company reasonable prior written notice of such process,
subpoena or request. In addition, the restrictions in this clause shall not
apply so as to prevent the Employee from ‘using his own personal skill in
business in which he may be lawfully engaged after the Employment is
ended.
RESTRICTIVE
COVENANTS
The
Employee covenants with the Company (for itself and as trustee and agent
for
other Group Company) that, for the period during the Employment and the twelve
(12) months following the Termination date, he shall not, whether directly
or
indirectly, on his own behalf or on behalf of or in conjunction with any
other
person, firm, company or other entity (except on behalf of the
Company):
Solicit
or entice away or attempt to solicit or entice away from the Company or any
Group Company any person, firm, company or other entity who is, or was, a
client
of the Company or Group Company with whom the Employee had business dealings
during the course of his Employment or in the twelve (12) month period prior
to
the Termination date;
Solicit
or entice away or attempt to solicit or entice away any individual person
who is
employed or engaged by the Company or Group Company either as a director,
or in
a managerial or technical capacity; or who is in possession of Confidential
Information and with whom the Employee had business dealings during the course
of his Employment or the twelve (12) month period immediately prior to the
Termination date;
Carry
on,
set up, be employed engaged or interested in a business in Hong Kong, the
People's Republic of China, and any other geographic locations where the
Company's business is conducted, that is in competition with, whether directly
or indirectly, the Business as at the Termination date. It is agreed that
if
such company ceases to be in competition with the Company and Group Companies
this clause shall, with effect from that date, cease to apply in respect
of such
company. The provisions of the Restrictive Covenants clause shall not, at
any
time following the Termination date, prevent the Employee from owning an
interest in the Company, and owning an interest in any company that competes
with the Company. Nothing in the Restrictive Covenants clause of this agreement
shall prohibit Employee from seeking or doing business not in direct or indirect
competition with the Business.
8
While
the
parties agree that the restrictions contained in the Confidential Information
clause and the Restrictive Covenants clause are reasonable in all circumstances,
it is agreed that if any court of competent jurisdiction holds that the length
of post-termination covenants contained herein are not reasonable, the parties
agree that;
The
covenants are to apply for a period of nine (9) months for the Termination
date;
or, if this period is held to be unreasonable,
For
a
period of six (6) months from the Termination date; or if this period is
held to
be unreasonable,
For
such
period as any court of competent jurisdiction decides is
reasonable.
The
period during which the restrictions referred to in the Restrictive Covenants
clause of this Agreement which apply following the Termination date shall
be
reduced by the amount of time during which, if at all, the Company suspends
the
Employee under the provisions of the Suspension clause of this
Agreement.
The
Company acknowledges and accepts that the Employee has skill and expertise
gained through prior experience within the industry and that there shall
be no
restriction placed upon the employee as a result of this Agreement, to be
gainfully employed by any company within the industry of the Employee's skill
and expertise. The Company agrees that the Employee shall be compensated
in
accordance with the Compensation clause of this Agreement during and for
the
full term of any restrictive period of employment placed upon the Employee
as a
result of this Agreement.
MISCELLANEOUS
This
Agreement, together with any other documents referred to in this Agreement,
supersedes all
other
employment agreements both oral and in writing between the Company and the
Employee. The Employee acknowledges that he has not entered into this Agreement
in reliance upon any representation, warranty or undertaking which is not
set
out in this Agreement or expressly referred to in it as forming part of the
Employee's contract of employment.
The
Employee represents and warrants to the Company that he will not by reason
of
entering into the Employment, or by performing any duties under this Agreement,
be in breach of any terms of employment with a third party whether express
or
implied or of any other obligation binding on him.
Any
notice to be given under this Agreement to the Employee may be served by
being
handed to him personally or by being sent by registered post to him at his
usual
or last known address; and any notice to be given to the Company may be served
by being left at or by being sent by registered post to its registered office
for the time being. Any notice served by registered post shall be deemed
to have
been served two days (excluding Sundays and statutory holidays) after the
date
of the registered post receipt.
The
provisions contained in the Confidential Information, Restrictive Covenants,
and
the Miscellaneous clauses shall remain in full force and effect after the
Termination Date.
9
This
Agreement and the relationship between the parties shall be governed by,
and
interpreted in accordance with, the laws of the State of Delaware, U.S.A.
Each
of the parties agrees that the courts of the State of Delaware are to have
non-exclusive jurisdiction to settle any disputes (including claims for set-off
and counterclaims) which may arise in connection with the creation, validity,
effect, interpretation or performance of, or the legal relationships established
by, this Agreement or otherwise arising in connection with this -Agreement,
and
for such purposes irrevocably submit to the non-exclusive jurisdiction of
the
courts of the State of Delaware.
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.
The
waiver by any party to a breach of any provision of this Agreement must be
in
writing and signed by such party to be effective, and shall not operate or
be
construed as a waiver of any subsequent breach of this Agreement.
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.
This
Agreement may be executed in one or more facsimile counterparts, and by the
parties hereto in separate facsimile counterparts, each of which when executed
shall be deemed to be an original while all of which taken together shall
constitute one and the same instrument.
(SIGNATURE
PAGE TO FOLLOW)
10
IN
WITNESS WHEREOF
this
AGREEMENT
has been
signed on the date the day and year first above written.
| SIGNED by (the Employee) | /s/ Xxxxxxx Xxxx Xxxxxxxx | |
|
Xxxxxxx Xxxx Xxxxxxxx |
||
| in the presence of: | /s/ Xxxxxx X. Xxxxxxx | |
|
Name: Xxxxxx X. Xxxxxxx |
| /s/ Luo Xxx Xx | ||
|
Name:
Luo Xxx Xx
Title:
Chief Executive Officer
|
||
| in the presence of: | /s/ Tang Xxxx Xxxxx | |
|
Name: Tang Xxxx Xxxxx |
11
