AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT BY AND KEVIN MA AND SHANGHAI CENTURY ACQUISITION CORPORATION Dated: April __, 2008
Exhibit
10.3
AMENDMENT
NO. 1 TO EMPLOYMENT AGREEMENT
BY
AND
XXXXX
XX
AND
Dated:
April __, 2008
THIS
AMENDMENT
NO.1 TO EMPLOYMENT AGREEMENT (“Amendment”)
is
made
and entered into this
____ day
of April 2008
by
and
Xxxxx
Xx
(the
“Employee”)
and
BACKGROUND
WHEREAS
the Employee and the Company have entered into an Employment Agreement dated
as
of February 20, 2008 ( the “Original Employment Agreement”); and
WHEREAS,
the Employee and the Company desire to amend the Original Employment Agreement
on the terms and subject to the conditions set forth in this Amendment (the
Original Employment Agreement as amended by this Amendment shall be referred
to
as the “Agreement”);
NOW,
THEREFORE, intending to be legally bound, and in consideration of the premises
and the mutual promises set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
Company and Employee agree as follows (Capitalized terms used herein without
definition shall have the meanings ascribed to such terms in the Original
Employment Agreement):
DEFINITIONS
“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;
or
(vi) 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.
ARTICLE
1. AMENDMENTS
TO ORIGINAL EMPLOYMENT AGREEMENT
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1.1
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Section
2.2(a) of the Original Employment Agreement is hereby amended by
(i)
deleting the words “4,000,000 newly issued Ordinary Shares of the Company
free and clear of all liens and encumbrances and” in the first and second
lines thereof and (ii) deleting the word “US$20” in the tenth line thereof
and substituting therefor the word
“US$10”.
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2
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1.2
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Section
2.2(a)(ii) of the Original Employment Agreement is hereby amended
by
deleting the word “US$20” in the second line thereof and substituting
therefor the word “US$10”. Section 2.2(a) (ii) of the Original Employment
Agreement is hereby further amended by amending the second sentence
thereof in its entirety to read as follows: “By way of example, (x) if the
2008 pro forma combined net after-tax income is US$12,500,000, an
additional 1,000,000 warrants will be transferred to the Management
Trust;
(y) if the 2008 pro forma combined net after-tax income is US$7,500,000,
1,000,000 warrants will be deducted with the result that only 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$17,500,000, only an
additional 2,000,000 warrants will be transferred to the Management
Trust.”
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1.3
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Section
2.2(b) of the Original Employment Agreement is hereby amended by
(i)
deleting the word “4,000,000” in the first line thereof and substituting
therefor the word “2,000,000” and (ii) deleting the word “$34,000,000 in
the fifth and eighth lines thereof and substituting therefor the
word
“$25,000,000”.
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1.4
|
Section
2.2(c) of the Original Employment Agreement is hereby amended by
(i)
deleting the word “4,000,000” in the first line thereof and substituting
therefor the word “2,000,000” and (ii) deleting the word “$57,800,000 in
the fifth and eighth lines thereof and substituting therefor the
word
“$43,000,000”.
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1.5
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A
new Section 2.2(e) shall be added to the Agreement to read in its
entirety
as follows:
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“(e)
For purposes of this Section 2.2, there shall be excluded from the
calculation of net after-tax income any amounts that may have been
recorded on the Company’s audited financial statements as either (i) any
compensation costs associated with a Share Bonus or (ii) any liabilities
associated with the warrants due to the application of EITF No.
00-19.”
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ARTICLE
2.
EFFECTIVENESS AND CONTINUED EFFECTIVENESS
2.1 Effectiveness
This
Amendment shall become effective as of the date first above
written.
2.2. Continued
Effectiveness of the Original Employment Agreement Except
as
expressly amended herein, all terms and provisions of the Original Employment
Agreement are and shall continue to be in full force and effect and the parties
hereto shall be entitled to the full benefits thereof.
ARTICLE
3.
MISCELLANEOUS
3.1. Governing
Law This
Amendment shall be governed by and construed in accordance with the laws of
the
State of New York without giving effect to any principles of conflicts of laws
that would result in the application of the law of any other
jurisdiction.
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3.2. Counterparts
This
Amendment may be executed by the parties hereto in any number of separate
counterparts.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
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EMPLOYEE
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By:
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Xxxxx
Xx
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By:
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Name:
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Xxxxxxxx
X. Xxx
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Title:
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Co-Chief
Executive Officer
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