EXECUTIVE EMPLOYMENT AGREEMENT
This
AGREEMENT is made as of the 23rd day of
April 2010 (the “Agreement”), by and
between KINGTONE WIRELESSINFO
SOLUTION HOLDING LTD, a British Virgin Islands corporation (the “Company”), and Ying
Yang, an individual resident of Colorado, USA (the “Executive”).
WITNESSETH:
WHEREAS,
the Company is engaged in the business of research, development, and application
of mobile software solutions (the “Business”);
and
WHEREAS,
Executive has represented that she has the experience, background and expertise
necessary to enable her to be the Company’s Chief Financial Officer;
and
WHEREAS,
based on such representation, and the Company’s reasonable due diligence, the
Company wishes to employ Executive as its Chief Financial Officer, and Executive
wishes to be so employed, in each case, upon the terms hereinafter set
forth.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements herein contained, and other good and valuable consideration, the
Parties agree as follows:
1. DEFINITIONS. As
used herein, the following terms shall have the following meanings:
1.1 “Affiliate” means any
Person controlling, controlled by or under common control with the
Company.
1.2 “Board” means the
Board of Directors of the Company.
1.3 “Ordinary Shares”
means the Company’s $.001 par value per share ordinary shares.
1.4 “Option” has the same
meaning ascribed to it under the Plan.
1.5 “Cause” means (i)
conviction of any crime whether or not committed in the course of her employment
by the Company; (ii) Executive’s refusal to carry out instructions of the Chief
Executive Officer or the Board which are consistent with Executive’s role as
Chief Financial Officer; or (iii) the breach of any representation, warranty or
agreement between Executive and the Company.
1.6 “Date of Termination”
means (a) in the case of a termination for which a Notice of Termination (as
hereinafter defined in Section 5.3) is required, 30 days from the date of actual
receipt of such Notice of Termination or, if later, the date specified therein,
as the case may be, and (b) in all other cases, the actual date on which the
Executive’s employment terminates during the Term of Employment (as hereinafter
defined in Section 3) (it being understood that nothing contained in this
definition of “Date of Termination” shall affect any of the cure rights provided
to the Executive or the Company in this Agreement).
1.7 “Disability” means
Executive’s inability to render, for a period of three consecutive months,
services hereunder due to her physical or mental incapacity.
1.8 “Effective Date” means
April 23, 2010.
1.9 “Person(s)” means any
individual or entity of any kind or nature, including any other person as
defined in Section 3(a)(9) of the Securities Exchange Act of 1934, and as used
in Sections 13(d) and 14(d) thereof.
1.10 “Plan” means the
Company’s 2010 Omnibus Incentive Plan.
1.11 “Prospective Customer”
means any Person which has either (a) entered into a nondisclosure agreement
with the Company or any Company subsidiary or Affiliate or (b) has within the
preceding 12 months received a currently pending and not rejected written
proposal in reasonable detail from the Company or any of the Company’s
subsidiary or Affiliate.
1.12 “Restricted Stock” has
the same meaning ascribed to it under the Plan.
2. EMPLOYMENT.
2.1 Agreement to Employ.
Effective as of the Effective Date, the Company hereby agrees to employ
Executive, and Executive hereby accepts employment on the terms and conditions
hereinafter set forth.
2.2 Duties and Schedule.
Executive shall serve as the Company’s Chief Financial Officer and shall have
such responsibilities as designated by the Company’s Chief Executive Officer or
the Board that are not inconsistent with applicable laws, regulations and
rules. Executive shall report directly to the Company’s Chief
Executive Officer or the Board, or the Audit Committee thereof, as circumstances
may require.
3. TERM OF EMPLOYMENT.
Unless Executive’s employment shall sooner terminate pursuant to Section 5, the
Company shall employ Executive for a term commencing on the Effective Date and
ending on the first anniversary thereof (the “Term”). The
term shall automatically renew for an additional year unless either Party
provides notice to the other that the Term shall not continue within 60 days
prior to the end of the prior Term. The period during which Executive
is employed pursuant to this Agreement shall be referred to as the “Term” or the “Term of
Employment”.
4. COMPENSATION.
4.1 Salary. Executive’s
salary during the Term shall be $160,000 per year (the “Salary”), payable in
bi-monthly payments and in US Dollars beginning the Effective Date. All
applicable withholding taxes shall be deducted from such
payments. The Board or the compensation committee of the Company will
review Executive’s Salary at least once per year and may, in its discretion,
increase the Salary in accordance with the Company’s compensation policies. A
discretionary bonus, if any, may be paid each year as determined solely by the
Board.
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4.2 Sign-on Bonus. In
addition to Executive’s Salary, a payment of $20,000 will be made to the
Executive upon the execution of this Agreement.
4.3 Options/Restricted
Stock. On the Effective Date, the Company hereby grants 100,000
Restricted Stock (the “Stock Award”) and Option (the “Option Award”) to purchase
150,000 shares of Company’s Ordinary Shares under the Plan. The per share
exercise price of the Option equals to the price the Company will offer to
investors during its initial public offering (the “IPO”). The Stock Award and
the Option Award shall be granted on the date of the IPO (the “Grant Date”) and
shall become vested and exercisable at the following schedule:
|
Stock
Award and/or Option Award
|
Vesting
Date
|
|
Option
to purchase 50,000 shares
|
the
Grant Date
|
|
50,000
shares of Restricted Stock and Options to purchase 50,000
shares
|
April
23, 2011
|
|
50,000
shares of Restricted Stock and Options to purchase 50,000
shares
|
April
23, 2012
|
4.4 Vacation. Executive
shall be entitled to three (3) weeks of paid vacation per year taken at such
times so as not to materially impede her duties hereunder. Vacation days that
are not taken may not be carried over into future years. Sick leaves
shall be consistent with the Company’s standard policies and applicable U.S.
law. Executive should be entitled to standard U.S. federal government
holidays in addition to vacation or sick leaves.
4.5 Business Expenses.
Executive shall be reimbursed by the Company for all ordinary and necessary
expenses incurred by Executive in the performance of her duties hereunder on
behalf of the Company.
4.6 Death During
Employment. If Executive dies during the Term, Company shall
pay to the estate of Executive (i) any accrued and unpaid salary and (ii) any
accrued and unpaid bonus for any prior fiscal year, and (iii) any granted
restricted shares and options will become immediately vested. This Agreement
shall thereupon terminate, and Company shall have no further obligation to the
estate of Executive.
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5. TERMINATION.
5.1 Termination Due to Death or
Disability.
5.1.1 Death. This Agreement
shall terminate immediately upon the death of Executive.
5.1.2 Disability. In the
event of Executive’s Permanent Disability, Executive shall be entitled to (a)
accrued and unpaid vacation through the first date that a Disability is
determined; and (b) all other compensation and benefits that were vested through
the first date that a Disability has been determined.
5.2 Termination. Both
the Company and the Executive may terminate the employment hereunder by delivery
of written notice to the other party at least thirty (30) days prior to
termination date or with a shorter notice period if agreed upon by the Parties
provided, however, that in the event of a breach of this Agreement by the
Executive or an event which would constitute “Cause”, the Company may
immediately terminate this Agreement upon written notice with no waiting period.
Upon the effective date of termination under this Section 5.2, Executive shall
be entitled to (a) accrued and unpaid vacation through such effective date; and
(b) all other compensation and benefits that were vested through such effective
date.
5.3 Notice of
Termination. Any termination of the Employment by the Company
or the Executive shall be communicated by a notice in accordance with Section
8.4 of this Agreement (the “Notice of
Termination”).
5.4 Payment. The
Executive shall not be entitled to severance payments upon any termination
provided in Section 5 herein. Except as otherwise provided in this Agreement,
any payments to which the Executive shall be entitled under this Section 5,
including, without limitation, any economic equivalent of any benefit, shall be
made as promptly as possible following the Date of Termination, but in no event
more than 30 days after the Date of Termination. If the amount of any
payment due to the Executive cannot be finally determined within 30 days after
the Date of Termination, such amount shall be reasonably estimated on a good
faith basis by the Company and the estimated amount shall be paid no later than
thirty (30) days after such Date of Termination. As soon as
practicable thereafter, the final determination of the amount due shall be made
and any adjustment requiring a payment to Executive shall be made as promptly as
practicable. The payment of any amounts under this Section 5 shall
not affect Executive’s rights to receive any workers’ compensation
benefits. Notwithstanding any provision to the contrary in this
Agreement, the vesting or termination of vested Option Award and Stock Award
shall be solely governed by the terms of the Option Grant Agreement and
Restricted Stock Grant Agreement.
6. EXECUTIVE’S
REPRESENTATION. The Executive represents and warrants to the Company
that: (a) she is subject to no contractual, fiduciary or other obligation which
may affect the performance of her duties under this Agreement; (b) she has
terminated, in accordance with their terms, any contractual obligation which may
affect her performance under this Agreement; and (c) her employment with the
Company will not require her to use or disclose proprietary or confidential
information of any other person or entity.
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7. NON-COMPETITION:
NON-DISCLOSURE; INVENTIONS.
7.1 Trade
Secrets. Executive acknowledges that her employment position
with the Company is one of trust and confidence. Executive further understands
and acknowledges that, during the course of Executive's employment with the
Company, Executive will be entrusted with access to certain confidential
information, specialized knowledge and trade secrets which belong to the
Company, or its subsidiaries, including, but not limited to, their methods of
operation and developing customer base, its manner of cultivating customer
relations, its practices and preferences, current and future market strategies,
formulas, patterns, patents, devices, secret inventions, processes, compilations
of information, records, and customer lists, all of which are regularly used in
the operation of their business and which Executive acknowledges have been
acquired, learned and developed by them only through the expenditure of
substantial sums of money, time and effort, which are not readily ascertainable,
and which are discoverable only with substantial effort, and which thus are the
confidential and the exclusive Property of the Company and its subsidiaries
(hereinafter “Trade Secrets”). Executive covenants and agrees to use her best
efforts and utmost diligence to protect those Trade Secrets from disclosure to
third parties. Executive further acknowledges that, absent the
protections afforded the Company and its subsidiaries in Section 7, Executive
would not be entrusted with any of such Trade Secrets. Accordingly, Executive
agrees and covenants (which agreement and covenant shall survive the termination
of this Agreement regardless of the reason) as follows:
7.1.1 Executive
will at no time take any action or make any statement that will disparage or
discredit the Company, any of its subsidiaries or their products or
services;
7.1.2 During
the period of Executive's employment with the Company and for 24 months
immediately following the termination of such employment, Executive will not
disclose or reveal to any person, firm or corporation other than in connection
with the business of the Company and its subsidiaries or as may be required by
law, any Trade Secret used or useable by the Company or any of its subsidiaries,
divisions or Affiliates (collectively the “Companies”) in
connection with their respective businesses, known to Executive as a result of
her employment by the Company, or other relationship with the Companies, and
which is not otherwise publicly available. Executive further agrees that during
the term of this Agreement and at all times thereafter, he will keep
confidential and not disclose or reveal to any person, firm or corporation other
than in connection with the business of the Companies or as may be required by
applicable law, any information received by him during the course of her
employment with regard to the financial, business, or other affairs of the
Companies, their respective officers, directors, customers or suppliers which is
not publicly available;
7.1.3 Upon the
termination of Executive's employment with the Company, Executive will return to
the Company all documents, customer lists, customer information, product
samples, presentation materials, drawing specifications, equipment and other
materials relating to the business of any of the Companies, which Executive
hereby acknowledges are the sole and exclusive property of the Companies or any
one of them. Nothing in this Agreement shall prohibit Executive from
retaining, at all times any document relating to her personal entitlements and
obligations, her rolodex, her personal correspondence files; and any additional
personal property;
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7.1.4 During
the term of the Agreement and, for a period of three (3) months immediately
following the termination of the Executive's employment with the Company,
Executive will not: compete, or participate as a shareholder, director, officer,
partner (limited or general), trustee, holder of a beneficial interest,
Executive, agent of or representative in any business competing directly with
the Companies without the prior written consent of the Company, which may be
withheld in the Company’s sole discretion; provided, however, that nothing
contained herein shall be construed to limit or prevent the purchase or
beneficial ownership by Executive of less than five percent of any security
registered under Section 12 or 15 of the Securities Exchange Act of
1934;
7.1.5 During
the term of the Agreement and, for a period of eighteen (18) months immediately
following the termination of the Executive's employment with the Company,
Executive will not:
7.1.5.1 solicit
or accept competing business from any customer of any of the Companies or any
person or entity known by Executive to be or have been, during the preceding 18
months, a customer or Prospective Customer of any of the Companies without the
prior written consent of the Company;
7.1.5.2 encourage,
request or advise any such customer or Prospective Customer of any of the
Companies to withdraw or cancel any of their business from or with any of the
Companies; or
7.1.6 Executive
will not during the period of her employment with the Company and, subject to
the provisions hereof for a period of eighteen (18) months immediately following
the termination of Executive's employment with the Company,
7.1.6.1 conspire
with any person employed by any of the Companies with respect to any of the
matters covered by this Section 7;
7.1.6.2 encourage,
induce or solicit any person employed by any of the Companies to facilitate
Executive's violation of the covenants contained in this Section 7;
7.1.6.3 assist
any entity to solicit the employment of any Executive of any of the Companies;
or
7.1.6.4 employ or
hire any Executive of any of the Companies, or solicit or induce any such person
to join the Executive as a partner, investor, coventurer, or otherwise encourage
or induce them to terminate their employment with any of the
Companies.
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7.2 Executive
expressly acknowledges that all of the provisions of this Section 7 of this
Agreement have been bargained for and Executive's agreement hereto is an
integral part of the consideration to be rendered by the Executive which
justifies the rate and extent of the compensation provided for
hereunder.
7.3 Executive
acknowledges and agrees that a violation of any one of the covenants contained
in this Section 7 shall cause irreparable injury to the Company, that the remedy
at law for such a violation would be inadequate and that the Company shall thus
be entitled to temporary injunctive relief to enforce that covenant until such
time that a court of competent jurisdiction either (a) grants or denies
permanent injunctive relief or (b) awards other equitable remedy(s) as it sees
fit.
7.4 Successors.
7.4.1 Executive. This
Agreement is personal to Executive and, without the prior express written
consent of the Company, shall not be assignable by Executive, except that
Executive’s rights to receive any compensation or benefits under this Agreement
may be transferred or disposed of pursuant to testamentary disposition,
intestate succession or a qualified domestic relations order or in connection
with a Disability. This Agreement shall inure to the benefit of and
be enforceable by Executive’s estate, heirs, beneficiaries, and/or legal
representatives.
7.4.2 The Company. This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
7.5 Inventions and
Patents. The Company shall be entitled to the sole benefit and exclusive
ownership of any inventions or improvements in products, processes, or other
things that may be made or discovered by Executive while he is in the service of
the Company, and all patents for the same. During the Term, Executive shall do
all acts necessary or required by the Company to give effect to this section
and, following the Term, Executive shall do all acts reasonably necessary or
required by the Company to give effect to this section. In all cases,
the Company shall pay all costs and fees associated with such acts by
Executive.
8. MISCELLANEOUS.
8.1 Indemnification. The
Company and each of its subsidiaries shall, to the maximum extent provided under
applicable law, indemnify and hold Executive harmless from and against any
expenses, including reasonable attorney’s fees, judgments, fines, settlements
and other legally permissible amounts (“Losses”), incurred in
connection with any proceeding arising out of, or related to, Executive’s
employment by the Company, other than any such Losses incurred as a result of
Executive’s negligence or willful misconduct. The Company shall, or
shall cause a subsidiary thereof to, advance to Executive any expenses,
including attorney’s fees and costs of settlement, incurred in defending any
such proceeding to the maximum extent permitted by applicable
law. Such costs and expenses incurred by Executive in defense of any
such proceeding shall be paid by the Company or applicable subsidiary in advance
of the final disposition of such proceeding promptly upon receipt by the Company
of (a) written request for payment; (b) appropriate documentation evidencing the
incurrence, amount and nature of the costs and expenses for which payment is
being sought; and (c) an undertaking adequate under applicable law made by or on
behalf of Executive to repay the amounts so advanced if it shall ultimately be
determined pursuant to any non-appealable judgment or settlement that Executive
is not entitled to be indemnified by the Company or any subsidiary
thereof. the Company will provide Executive with coverage under all
director’s and officer’s liability insurance policies which is has in effect
during the Term, with no deductible to Executive.
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8.2 Applicable
Law. Except as may be otherwise provided herein, this
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, applied without reference to principles of conflict of
laws.
8.3 Amendments. This
Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors or legal
representatives.
8.4 Notices. All
notices and other communications hereunder shall be in writing and shall be
given by hand-delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
If to the
Executive:
Ying
Yang
00000
X Xxxxxxx Xxx.,
Xxxxxx,
XX 00000
With a
copy to (which shall not constitute a notice):
If to the
Company:
0xx Xxxxx,
Xxxxxxx X, Xxxxx A. No.181, South Taibai Road,
Xi’an,
Shaanxi Province,
People’s
Republic of China 710065
Attn: Mr.
Xxx Xx
Tel:
(00-00) 0000-0000
With a
copy to (which shall not constitute notice):
Xxxxx
Xxxxxxx, LLP.
0 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000-0000
Direct
Dial: 000-000-0000
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Direct
Fax: 000-000-0000
Email:
xxxxx@xxxxxxxxxxxx.xxx
Or to
such other address as either party shall have furnished to the other in writing
in accordance herewith. Notices and communications shall be effective
when actually received by the addressee.
8.5 Withholding. The
Company may withhold from any amounts payable under the Agreement, such federal,
state and local income, unemployment, social security and similar employment
related taxes and similar employment related withholdings as shall be required
to be withheld pursuant to any applicable law or regulation.
8.6 Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this Agreement,
and any such provision which is not valid or enforceable in whole shall be
enforced to the maximum extent permitted by law.
8.7 Captions. The
captions of this Agreement are not part of the provisions and shall have no
force or effect.
8.8 Entire
Agreement. This Agreement contains the entire agreement among
the parties concerning the subject matter hereof and supersedes all prior
agreements, understandings, discussions, negotiations and undertakings, whether
written or oral, between the parties with respect thereto.
8.9 Survivorship. The
respective rights and obligations of the parties hereunder shall survive any
termination of this Agreement or the Executive’s employment hereunder to the
extent necessary to the intended preservation of such rights and
obligations.
8.10 Waiver. Either
Party's failure to enforce any provision or provisions of this Agreement shall
not in any way be construed as a waiver of any such provision or provisions, or
prevent that party thereafter from enforcing each and every other provision of
this Agreement.
8.11 Joint
Efforts/Counterparts. Preparation of this Agreement shall be
deemed to be the joint effort of the parties hereto and shall not be construed
more severely against any party. This Agreement may be signed in two
or more counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
8.12 Representation by
Counsel. Each Party hereby represents that it has had the
opportunity to be represented by legal counsel of its choice in connection with
the negotiation and execution of this Agreement.
--
Signature page follows --
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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the day and year first above
written.
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EXECUTIVE:
/s/ Ying Xxxx
Xxxx
Xxxx
|
By: /s/ Xxxx Xxxxx
Xxxx
Xxxxx
Chief
Executive Officer
|
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