EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.1
This
EXECUTIVE EMPLOYMENT AGREEMENT ("EA") is made and entered into this 31st day of
July, 2008, by and among Xxxxx Xx ("EXECUTIVE"), a resident of Shenzhen, China,
and DIGUANG INTERNATIONAL DEVELOPMENT CO., LTD.., a Nevada corporation (the
"COMPANY").
I. EMPLOYMENT.
A. Commencing
on September 1, 2008 ("Effective Date"), and for an indefinite period
thereafter, Executive shall be employed pursuant to this EA by the Company, or
by a designated subsidiary of the Company (the Company or such subsidiary, as
the case may be, that employs Executive will be hereinafter referred to as the
"EMPLOYER"). Executive's employment pursuant to this EA shall continue for an
indefinite period, until terminated by either Executive or
Employer.
B. Subject
only to the provisions of Sections III. and VII., Executive's employment shall
be "at-will," meaning that either Executive or Employer may terminate it at any
time, with or without any advance notice and with or without any particular
reason or cause or advance procedures. It also means that Executive's job
duties, responsibilities, title, reporting level, regular place of employment,
compensation, benefits and Employer's policies and procedures can be changed, in
the sole discretion of Employer, at any time, with or without advance notice and
with or without any particular reason or cause or advance
procedures.
C. In
agreeing to be employed pursuant to this EA, Executive represents and warrants
that Executive has not previously entered into, and in the future shall not
enter into, any agreement, either written or oral, that conflicts with any of
Executive's obligations under this EA or may be an impediment to Executive
providing services under this EA.
II. POSITION.
A. Executive
shall be employed by Employer on a regular full-time basis, with the job title
of Executive Vice President, reporting to the Chief Executive Officer. Executive
shall have such job duties and responsibilities commensurate with such position,
which may change as Employer's business needs and market conditions change from
time-to-time.
B. Executive's
initial, regular place or base of employment shall be at the Company's main
business office in Shenzhen, China.
C. During
Executive's employment with Employer, Executive shall devote Executive's full
business time, best efforts, abilities, energies and skills to the good faith
performance of Executive's job duties and responsibilities hereunder, and shall
perform said duties and responsibilities at all reasonable times and places in
accordance with reasonable directions and requests made by the Employer
consistent with Executive's position and Employer's business needs as determined
by Employer. Executive shall not engage in any other employment, business, or
business-related activity unless Executive receives prior written approval from
Employer's Board of Directors to hold such outside employment or engage in such
business or activity, which written approval shall not be unreasonably withheld
if such outside employment, business or activity would not in any way be
competitive with the business or proposed business of Employer or otherwise
conflict with or adversely affect in any way Executive's ability to fulfill
Executive's obligations under this EA. Executive shall not be required to
receive prior written approval for activities related to family investments or
charitable organizations.
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III. CASH
COMPENSATION.
A. Salary
Compensation.
1. Executive
shall earn and be paid a salary, at a monthly rate of Seventy thousand (70,000)
RMB. Payments to Executive shall be denominated in RMB, USD or
HKD of the equivalent amount.
2. Executive's
salary shall be paid at periodic intervals in accordance with Employer's regular
payroll schedule and practices.
3. Executive's
salary rate shall be reviewed from time-to-time, generally on an annual basis,
and may be increased by the Compensation Committee of Company's Board of
Directors ("Compensation Committee") in its sole discretion.
B. Annual
Bonus Compensation Opportunities. As a performance and retention incentive,
Executive shall be eligible to earn an annual bonus award. The terms
and conditions of each such annual bonus award opportunity shall be provided in
writing to Executive not later than January 31 of each calendar year for that
calendar year and shall be attached to this Agreement each year as Attachment 1.
However, the following will apply to each annual bonus award opportunity made
available to Executive during Executive's employment with Employer.
1. Each
annual bonus award opportunity will be conditioned on Employer's achievement of
calendar year revenue and net income objectives, and any other objectives,
established in the discretion of the Board for the calendar year.
2. Each
annual bonus award opportunity also will be conditioned on Executive's full-time
active services to Employer continuously through the calendar year. However,
should the Executive be terminated without cause, leave for good reason, die or
become permanently disabled, the Executive or his estate will be entitled to all
bonus compensation that has been earned in accordance with the terms of the then
applicable annual bonus award opportunity but not yet paid at the time of
Executive's departure, death or permanent disability, including any bonus
compensation earned for partial portions of a calendar year.
3. It
is the intent of Employer, generally, to pay annual bonuses no later than March
15 of the next calendar year, after Employer's audited financial statements for
the calendar year just ended have been prepared and approved by the
Board.
4. The
Employer may provide for periodic progress bonus awards against the total annual
bonus opportunity.
C. Discretionary
Bonuses. To the extent Employer exceeds both of its revenue and net income
and/or any other objectives established for a calendar year by the Board,
Executive shall be eligible for a discretionary bonus award, which would be in
addition to Executive's annual bonus award opportunity. Whether to grant such
additional bonus award and, if so, in what form and amount, shall be
determinations made by the sole discretion of the Board.
D. Guaranteed
Compensation. Executive shall be paid cash compensation as outlined
in Section III A. above for a period of 3 years after the Effective Date as
defined in Section I.B of this EA, regardless of Executive’s employment status
with the company, unless Executive has been terminated with CAUSE.
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E. Withholdings.
All cash compensation paid to Executive pursuant to this EA, including any
Severance Benefits per Section VII.B., shall be subject to (i) any and all
applicable federal, state and local income and employment withholding taxes;
(ii) other amounts required to be deducted or withheld by Employer under
applicable law or order requiring the withholding or deduction of amounts
otherwise payable as compensation or wages to employees; (iii) such other
withholdings and deductions as may be allowed by applicable law; and (iv) such
other withholdings and deductions as may be authorized in writing by
Executive.
IV. EMPLOYEE
BENEFITS & EXPENSES.
A. Employee
Benefits. Executive shall be eligible to participate in all employee benefits
and benefit plans generally made available to executive employees of Employer
from time-to-time, subject to the terms, conditions and relevant qualification
criteria for such benefits and benefit plans. Employer, in its discretion, may
change from time-to-time the employee benefits and benefit plans it generally
makes available to its executive employees.
B. Expenses
& Expense Reimbursement. Executive shall be entitled to reimbursement from
Employer of all reasonable and necessary business, travel and entertainment
expenses incurred by Executive in the performance of Executive's job
responsibilities hereunder, subject to the expense reimbursement policies and
procedures of Employer in effect from time-to-time which, at minimum, shall
require completion and submission of expense reimbursement request forms and
receipts evidencing such expenses.
V. EQUITY
X. Xxxxx.
Executive shall be granted shares of Company common stock ("Stock Grant") as to
be determined by the Company’s Board of Directors for each year (12 months) of
service with the Company. The Stock Grant will be granted to the extent
permissible under applicable law. Each annual Stock Grant will vest
over one (1) year in four (4) quarterly installments , provided that Executive
has continuously provided active services to Employer throughout each relevant
quarter. The Stock Grant will be evidenced by the Company's form of stock grant
agreement, and will be subject to the terms and conditions of that agreement.
Executive will be eligible for future additional stock grants and stock option
grants at the discretion of the Board of Directors.
B. Stock
Grant and Options & Change in Control. Each stock grant and stock option
granted shall contain the following terms relative to a "Change in Control"
(defined in Section VI.B.2., below).
1. Immediately
upon a "Change in Control," fifty percent
(50%) of all of Executive's then-outstanding stock grant and stock option
shares, under each stock grant and stock option granted to Executive, shall
immediately vest and be exercisable, unless Executive's then-outstanding options
are not assumed by the surviving entity in such Change in Control transaction,
in which case, one hundred percent (100%) of Executive's then-outstanding stock
grant and stock option shares, under all stock grants and stock options granted
to Executive, shall immediately vest and be exercisable.
2. If
Executive's employment with the Company or a successor is terminated "Without
Cause" (defined in Section VI.C., below) by the Company
or its successor within 12 months after the effective date of a "Change in
Control," or if Executive terminates his employment with the Company or its
successor for "Good Reason" within 12 months after the effective date of a
"Change in Control", then one hundred percent (100%) of Executive's
then-outstanding stock grant and stock option shares, under each stock grant and
stock option granted to Executive, shall immediately vest and be exercisable as
of the effective date of Executive's termination of employment ("TERMINATION
DATE") provided that the conditions of Section VII.A.2. and Section
VII.B.2.a.-b., below, have been satisfied by Executive no later than 90 days
after the Termination Date.
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C. Stock
Grant at Death or Permanent Disability. The terms of the Stock
Grant and each stock grant or stock option granted after the Stock Grant shall
provide that one hundred percent (100%) of Executive's then-outstanding stock
grant share and option shares, under all stock grants and stock options granted
to Executive, shall immediately vest and become exercisable in the event of
Executive's death or permanent disability.
VI. TERMINATION
OF EMPLOYMENT
Although
Executive's employment shall be "at-will," termination of the employment
relationship between Executive and Employer shall be classified in one of the
following categories, for the limited purpose only of the Severance Benefit
Opportunity of Section VII.B., below:
A. By
Employer for Cause. Termination of Executive's employment by Employer for
"CAUSE" means a termination by Employer of Executive's employment for any of the
following reasons, upon written notice to Executive at any time:
1. Executive's
conviction or plea of nolo contendre to a felony offense or crime of violence or
dishonesty; or
2. The
Company's good faith determination, upon majority vote of Company's Board of
Directors, that:
a. Executive
has engaged in theft, fraud, embezzlement or dishonest conduct with respect to
any property or funds of Employer,
any affiliate, subsidiary or parent of Employer, or of any vendor, partner,
employee or customer of Employer that is harmful to Employer, to an affiliate,
subsidiary or parent of Employer or to the business, operations, reputation or
business prospects of any of them;
b. Executive
has breached any of his obligations under the Confidential Information Agreement
signed by Executive as a condition of this EA;
c. Executive
has engaged in an act of misconduct which has had an adverse effect on the
business, operations, reputation or business prospects of Employer or of an
affiliate, subsidiary or parent of Employer; or
B. By
Executive for Good Reason.
1. Termination
of Executive's employment by Executive shall qualify as a termination by
Executive for "GOOD REASON" if all of the following conditions are
met:
a. Executive
shall have given advance written notice of termination to Employer ("NOTICE"),
in accordance with Section VIII.H., below, that includes the
following:
(1) a
description of the act, omission or breach giving rise to the Notice,
and
(2) a
date on which Executive intends the termination to be effective ("Termination
Date"), that is no earlier than 30 days
after the date the Notice is delivered to the Employer;
b. The
act, omission or breach described in the Notice is
one of the following:
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(1) A
reduction, without Executive's consent, of Executive's salary rate or bonus
award opportunity by more than ten percent (10%), unless the salary rates of all
Employer's executive-level employees also have been reduced by at least such
percent;
(2) A
relocation, without Executive's consent, of Executive's regular place or base of
employment by more than fifty
(50)
miles; or
(3) A
breach by Employer of one or more of its obligations under this EA;
and
c. The
act, omission or breach described in the Notice
first occurred:
(1) During
the 12 months after the effective date of a "Change in Control" of the Company,
or
(2) No
earlier than 90 days before the date the Notice is delivered to the Employer;
and
d. The
Employer failed to remedy, before the Termination Date, the act, omission or
breach described in the Notice.
2. A
"CHANGE IN CONTROL" means a change in the ownership or control of the Company,
effected through any of the following transactions first occurring after the
Company's IPO, and excluding the Company's IPO:
a. A
merger, consolidation or reorganization approved by the Company's stockholders,
unless securities representing more than fifty percent (50%) of the total
combined voting power of the outstanding voting securities of the successor
entity are immediately thereafter beneficially owned, directly or indirectly and
in substantially the same proportion, by the persons who beneficially owned the
outstanding voting securities of the Company immediately prior to such
transaction;
b. Any
stockholder-approved sale, transfer or other disposition of all or substantially
all of the Company's assets in complete liquidation or dissolution of the
Company; or
c. The
acquisition, directly or indirectly, by any person or related group of persons
(other than the Company or 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 Securities Exchange Act of
1934, as amended) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding
securities.
C. Without
Cause. Executive's employment is terminated "WITHOUT CAUSE" if
it is terminated in any of the following circumstances:
1. Due
to Executive's death; or
2. Due
to Executive's "DISABILITY" which shall mean a termination upon written notice,
or on such prospective date specified in such notice, delivered by the Employer
to Executive, due to Executive's inability, either with or without reasonable
accommodation, by reason of any physical or mental injury, illness or
impairment, to substantially perform the essential functions required of
Executive under this EA for a period of six (6) months during any rolling 12
month period; or
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3. upon
any notice, written notice, or on such prospective date specified in such
notice, delivered by the Employer to Executive, for a reason other than any of
the reasons described as "Cause" in Section VI.A., above; or
4. upon
any notice, written notice, or on such prospective date specified in such
notice, delivered by Executive to the Employer, for a reason other than a
reasons and the conditions that qualify as "Good Reason" under Section VI.B.1.,
above.
VII. OBLIGATIONS
UPON TERMINATION.
A. Any
Termination. In addition to any other obligations that may apply under the
Confidential Information Agreement and/or under this EA, the Parties shall have
the following obligations upon any termination of their employment relationship
pursuant to this EA:
1. Employer:
a. Employer
shall pay Executive (or Executive's estate) any unpaid cash compensation earned
by Executive pursuant to this EA through the Termination Date if the Termination
date is greater than 3 years after the Effective Date; and
b. Employer
shall pay Executive (or Executive’s estate) cash compensation equivalent to 3
years remuneration as outlined in Section III above if the Termination date is
less than 3 years after the Effective Date regardless of the reason for
termination of the employment relationship between Executive and Employer;
and
c. Employer
shall allow Executive and/or Executive's dependents, at their sole cost and
expense, to continue participation after the Termination Date in those group
health benefit plan in which Executive and/or Executive's dependents are
entitled to participate pursuant to the terms and conditions of the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA").
d. Employer
shall allow Executive and/or Executive's estate, at their sole cost and expense,
to exercise all of Executive's vested stock grant and stock option shares,
including those vested consistent with Section V.B., in accordance with the
terms and conditions of the applicable stock grant and stock option agreements
that govern such shares.
2. Executive:
a. No
later than fifteen (15) days after the Termination Date, Executive shall return
to Employer all items of property that had been provided for Executive's use
during employment with Employer or with any of its predecessors, or had been
paid for by Employer or any of its predecessors, and
b. No
later than fifteen (15) days after the Termination Date, Executive shall return
to Employer all documents created or received during the course of Executive's
employment with Employer or with any of its predecessors, except Executive may
retain Executive's personal copies of documents evidencing Executive's hire,
compensation, benefits, stock options, this EA, the Confidential Information
Agreement and any documents that may have been received by Executive as a
shareholder of the Company.
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Benefit Opportunity. Subject to the conditions of Section
VII.B.2.-3., below, Employer shall provide Severance Benefits to Executive for
the Severance Period in the event that Executive's employment with Employer (i)
is terminated by Employer without Cause or (ii) is terminated by Executive for
Good Reason. Such Severance Benefits, if and to the extent provided, are not
compensation for past services or labor performed by Executive, but to preserve
the goodwill existing between the Parties, to resolve any disputes or
disagreements that may exist between them relating to Executive's employment and
the termination thereof, and to assist Employer and Executive to move onto other
business and employment opportunities, respectively.
1. Severance
Benefits during Severance Period. The "SEVERANCE
PERIOD" shall be twelve (12) months measured from the Effective Date
of the
Post Termination General Release of All Claims Agreement. If the start-date of
the SEVERANCE PERIOD begins before the 2 year anniversary of the Effective Date
as defined in Section I.B of this EA, then no SEVERANCE BENEFITS shall be due to
Executive. If the start-date of the SEVERANCE PERIOD begins at or
after the 2 year anniversary of the Effective Date as defined in Section I.B of
this EA, then all SEVERANCE BENEFITS shall be due to Executive as defined below
for the entire SEVERANCE PERIOD. If SEVERANCE BENEFITS are due, then they will
supersede and replace the guaranteed compensation as defined in Section III.D of
this EA. “SEVERANCE BENEFITS" shall consist of the
following:
a. Post-Termination
Payments. Periodic payments, at the Executive's monthly salary rate in effect
just prior to the time of the act or omission resulting in Executive's
termination ("SEVERANCE PAYMENTS"). Such payments shall be paid at periodic
intervals in accordance with Employer's regular payroll schedule and
practices.
b. COBRA
Premium Payments. At Employer's full expense, continuation coverage for
Executive and Executive's eligible dependent(s), existing as of the Termination
Date, under Employer's group health plans, subject to the terms, conditions and
election requirements of COBRA or applicable state law counterpart to COBRA
("PAID HEALTH PLAN COVERAGE"). Any additional period of post-termination health
plan coverage to which Executive and Executive's dependents may be eligible
under COBRA, or under a state law counterpart to COBRA, after expiration of
COBRA Premium Benefits provided under this Section VII.B.1.b., shall be at
Executive's full personal cost and expense.
2. Severance
Benefit Conditions & Limitations.
a. Executive
shall provide, cooperatively and in good faith, to those person(s) designated by
Employer, all information necessary to effectively transition to others
Executive's job, technical, operational and financial information and knowledge,
work product and pending work, as and to the extent requested by Employer during
the 60 day period after the Termination Date.
b. In
order to receive and continue to receive Severance Benefits, Executive must
comply with Executive's obligations under the Confidential Information Agreement
in accordance with its terms, and must comply with the restrictions of this
Section VII.B.2.c. For the purposes of this Section VII.B.2.c., the following
definitions shall apply: (i) "BUSINESS" means the development, marketing and
sales of technology-based processing solutions for the execution, clearing,
custody and settlement of securities, commodities and/or foreign exchange
transactions; (ii) "CUSTOMER" means any person, entity or business that
was a customer, or was specifically targeted to become a customer, of the
Employer or the Company during the one (1) year period prior to the Termination
Date; (iii) "TERRITORY" means and includes each of the fifty (50) states of the
United States of America, and China; and (iv) "SERVICE PROVIDER," means any
person who is during the Severance Period, and was at any time during the one
(1) year period prior to the Termination Date, an employee, consultant, or
independent contractor of the Employer or the Company.
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(1) Non-Solicitation
of Service Providers. During the Severance Period, Executive shall not, anywhere
in the Territory, on Executive's own behalf or on behalf of any other person or
entity, either directly or indirectly recruit, encourage or solicit any Service
Provider to leave or reduce that Service Provider's employment with or services
to the Employer or to the Company
(2) Non-Solicitation
of Customers. During the Severance Period, Executive shall not, anywhere in the
Territory, on Executive's own behalf or on behalf of any other person or entity,
either directly or indirectly, contact, recruit, encourage or solicit any
Customer with respect to the Business.
(3) Non-Competition.
During the Severance Period, Executive shall not, anywhere in the Territory,
whether as an employee, agent, consultant, advisor, independent contractor,
proprietor, partner, officer, director, joint venture partner, trustee,
stockholder, investor, lender or guarantor of any corporation, partnership or
other entity, or in any other capacity, either directly or indirectly (on
Executive's own behalf or on behalf of any other person or entity) (a) engage in
the Business or (b) permit Executive's name to be used in the Business.
Notwithstanding the foregoing, Executive may own, directly or indirectly, solely
as an investment, up to two percent (2%) of any class of "publicly traded
securities" of any business that is competitive with or similar to the Business
or any person who owns a business that is competitive with or similar to the
Business. Executive acknowledges and agrees that each of the
restrictions of Section VII.B.2.c. is reasonable with respect to subject matter,
length of time, and geographic area, and will not prevent Executive from
pursuing an occupation or living during the Severance Period.
d. In
the event that Executive breaches any of Executive's obligations under Section
VII.B.2.c., above, prior to expiration of the Severance Period:
(1) Executive
shall cease to be entitled to any further Severance Benefits, otherwise to be
provided under Section VII.B.1., above, except that Executive shall be eligible
to receive or retain, as the case may be, Severance Benefits equal to fifty
percent (50%) of the total amount of Severance Benefits to which Executive
otherwise would have been eligible to receive in the absence of such breach;
and
(2) Employer
shall be entitled to recover from Executive any and all amounts that may have
been paid to or on behalf of Executive as Severance Benefits in excess of fifty
percent (50%) of the total amount of Severance Benefits to which Executive
otherwise would have been eligible to receive in the absence of Executive's
breach; and
(3) Employer
shall be entitled to take any and all action(s) necessary to pursue legal and
equitable remedies against Executive, including, without limitation, injunctive
relief.
x. Xxxxxxxxx
Benefits provided under Section VII.B.1., above, shall in all cases be reduced
by any payments or benefits to which Executive may be entitled under the federal
Worker Adjustment Retraining Notification Act, and/or under any applicable state
law counterpart statute.
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Benefits under Section VII.B.1., above, shall be the only severance and/or
measure of damages or loss, to which Executive shall be entitled upon any
termination of Executive's employment with Employer. Except as set forth in
Section VII.A.1., above, no other amounts or benefits shall be owed to Executive
including, but not limited to, under any other plan, program or practice of
Employer or of any subsidiary, affiliate or parent of Employer.
3. Delayed
Commencement Date for Severance Benefits.
Notwithstanding
any provision to the contrary in this EA, no Severance Benefits to which
Executive otherwise becomes entitled under this EA, shall be made or provided to
Executive prior to the EARLIER of (i) the expiration of the six (6)-month period
measured from the date of his "separation from service" with the Employer (as
such term is defined in Treasury Regulations issued under Section 409A of the
Internal Revenue Code("Code")) or (ii) the date of his death, if Executive is
deemed at the time of such separation from service to be a "key employee" within
the meaning of that term under Code Section 416(i) and such delayed commencement
is otherwise required in order to avoid a prohibited distribution under Code
Section 409A(a)(2). Upon the expiration of the applicable Code Section
409A(a)(2) deferral period, all Severance Benefits that otherwise would have
payable to Executive during the deferral period shall be paid or reimbursed to
Executive in a lump sum, and any remaining Severance Benefits due to Executive
pursuant to this EA shall be paid or provided in accordance with Section
VII.B.1.
VIII.
MISCELLANEOUS.
A. Governing
Law. This EA shall be construed and interpreted in accordance with the laws of
State of Nevada.
B. Severability.
Should any provision (or portion of provision) of this EA become or be deemed
unenforceable, such unenforceability will not affect any other provision and
this EA shall be construed as if such unenforceable provision (or portion of
provision) had never been contained herein, except that if the restrictions of
VII.B.2.c.(2)-(3)., are found to be unenforceable, Executive shall not be
entitled to more than 50% of the Severance Benefits provided by Section
VII.B.1.
C. Remedies.
Except as otherwise provided herein, all rights and remedies provided pursuant
to this EA or by law shall be cumulative, and no such right or remedy shall be
exclusive of any other. Either of the Parties may pursue any one or more rights
or remedies hereunder or may seek damages or specific performance in the event
of the other party's breach hereunder or may pursue any other available
remedy.
D. Arbitration.
Any and all disputes by and among any of the Parties that arise from or relate
to this EA shall be resolved through final and binding arbitration which shall
be instead of any civil litigation, except to the extent specifically set forth
in Section VIII.D.5., below. Each of the Parties hereby waives their respective
right to a jury trial as to such disputes, and understands and agrees that the
arbitrator's decision shall be final and binding to the fullest extent permitted
by law and enforceable by any court having jurisdiction thereof. The provisions
of this Section VIII D. shall replace and supersede the provisions of Section 5
of the Confidential Information Agreement in its entirety.
1. Arbitration
shall be conducted in Las Vegas, Nevada, in accordance with the National Rules
for the Resolution of Employment Disputes of the American Arbitration
Association ("AAA Rules") then in effect and to the extent consistent with
applicable law, although the arbitrator shall be selected by mutual agreement of
the parties and need not be a panel member of the American Arbitration
Association. It is the Parties' intent that, prior to initiating arbitration
proceedings, the Parties shall mediate their dispute with one another in a good
faith attempt to avoid the necessity of resolving their disputes through
arbitration proceedings.
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Executive Employment Agreement
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2. The
arbitrator shall allow the discovery authorized and/or required by applicable
law in arbitration proceedings, including but not limited to discovery available
under applicable State and/or federal arbitration statutes, including the
Federal Arbitration Act.
3. The
arbitrator shall issue a written award that sets forth the essential findings of
fact and conclusions of law on which the award is based. The arbitrator shall
have the authority to award any relief authorized by applicable law in
connection with the asserted claims or disputes. The arbitrator's award shall be
subject to correction, confirmation, or vacation, as provided by any applicable
law setting forth the standard of judicial review of arbitration
awards.
4. Each
party to the arbitration shall bear their own respective attorneys' fees and
costs incurred in connection with the arbitration; and the parties shall share
equally the arbitrator's fees, unless law applicable at the time of the
arbitration hearing requires otherwise. The arbitrator shall award attorneys'
fees and costs of arbitration to the prevailing party. If there is a dispute as
to which of the Parties is the prevailing party in the arbitration, the
Arbitrator will decide this issue.
5. Any
dispute or controversy arising out of or relating to any interpretation,
construction, performance or breach of Sections 2 and 4 of the Confidential
Information Agreement may, at the election of the Company in its sole
discretion, be brought in any state or federal court of competent jurisdiction.
In connection therewith, Executive acknowledges that his breach of or other
failure to comply with any provision of the foregoing Sections would cause
irreparable harm to the Company for which there is no adequate remedy at law,
and that in the event of such breach or failure the Company shall have, in
addition to any and all remedies at law, the right to an injunction, specific
performance, or other equitable relief to prevent the violation of his
obligations thereunder.
6. To
the extent that any of the AAA Rules or anything in this Section VIII.D.
conflicts with any arbitration procedures required by applicable law, the
arbitration procedures required by applicable law shall govern. In the event
Executive is a registered representative under the rules of the National
Association of Securities Dealers, Inc. ("NASD"), then notwithstanding anything
to the contrary in this Section, if required by the rules of the NASD, the
arbitration shall be conducted in accordance with the rules and procedures of
the NASD, the Company's Employee Handbook and other Company documentation (each
of which contain policies and procedures relating to NASD
arbitration).
E. Assignment;
Successors. This EA may not be assigned by Executive. This EA may be assigned by
Employer, upon written notice to Executive, and shall be binding on the
successors of Employer.
F. Changes
to Agreement. This EA may only be changed by another written agreement signed by
Executive and by a duly authorized representative of Company. Notwithstanding
the foregoing, the Company reserves the right to amend this EA in any way that
the Company in good faith determines may be advisable to help ensure compliance
with Section 409A of the Code and any regulations or other guidance thereunder
(together, "Section 409A"). Any such amendment shall preserve, to the extent
reasonably possible and in a manner intended to satisfy Section 409A and avoid
the imputation of penalties or taxes under Section 409A, the original intent of
the parties and the level of benefits hereunder.
G. Counterparts.
This EA may be executed in more than one counterpart, each of which shall be
deemed an original, but all of which together shall constitute but one and the
same instrument.
H. Notices.
Notice under this EA, including any change to the following and assignment of
this EA by the Company, shall be delivered as follows:
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Page 10 of 11
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Xxxxx Xx
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Executive Employment Agreement
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To
the Company: DIGUANG INTERNATIONAL DEVELOPMENT CO.,
LTD..
23rd Floor,
Building A, Galaxy Century
3069
Caitian Road, Futian District
Attn:
Board Chairman
To:
Executive: Xxxxx Xx
00xx Xxxxx,
Xxxxxxxx X, Xxxxxx Century
3069
Caitian Road, Futian District
I. Complete
Agreement. There are no promises, representations or commitments made by,
between or among Executive and Employer regarding the subjects covered by this
EA that do not appear expressly written in this EA. In executing this EA, each
of the Parties represents and warrants to the others that it is not relying on
any promises, representations, negotiations, statements or commitments that are
not expressly set forth in this EA. This EA supersedes, cancels and replaces any
and all prior verbal and written agreements between the Parties regarding any of
the subjects covered by this EA.
IN
WITNESS WHEREOF, the Parties have executed this EA as of the date first above
written.
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EXECUTIVE:
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| /s/ Xxxxx Xx |
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Name:
Xxxxx Xx
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July
31, 2008
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THE
COMPANY
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/s/
Xx Xxxx
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By: Xx
Xxxx
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Title: Board
Chairman, President and Chief Executive Officer
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July
31,
2008
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Page 11 of 11
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Executive Employment Agreement
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