EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made on June 14, 2011 and effective as of January 1, 2011, by and between Sino Agro Food, Inc., a Nevada corporation (the “Company”), and Xx. Xxxx Bor Xxxx (the “Executive”).
WHEREAS, the Company wishes to employ the Executive pursuant to the terms and conditions of this Agreement and Executive wishes to be employed by the Company pursuant to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
(c) Reimbursement of Expenses. During the Employment Period, the Company will reimburse Executive for all reasonable out-of-pocket expenses necessarily incurred by him in the course of performing his duties under this Agreement which are consistent with the Company’s policies in effect from time to time with respect to travel, entertainment and other business expenses. Reimbursement by the Company for the expenses set forth in above will be subject to the Company’s requirements with respect to reporting and documentation of such expenses.
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4. Performance Bonuses. During the Employment Period and on an annual basis, Company shall, in the sole discretion of the Board of Directors and consistent with the best interests of the Company, the shareholders and corporate governance best practices, pay Executive an annual year-end performance bonus as deemed appropriate by the Board of Directors.
(a) The Employment Period will commence effective January 1, 2011 and will continue until the earlier of: (i) the third anniversary of the date hereof; (ii) Executive’s resignation, death or disability or other incapacity (as reasonably determined by the Board in good faith); or (iii) the giving of notice of termination by the Company or a majority of the members of the Board (A) for Cause or (B) for any other reason or for no reason (a termination described in this clause (iii) (B) being a termination by the Company without Cause). For the purposes of this Agreement, “Cause” shall mean (a) conviction of, or a plea of guilty or no-contest or similar plea with respect to, a felony or the commission of any act or omission involving actual fraud or embezzlement with respect to the Company or any of its Subsidiaries, (b) willful misconduct or breach of fiduciary duty with respect to the Company or any of its Subsidiaries or (c) material breach of Section 2 of this Agreement (provided, that to the extent a material breach of Section 2 of this Agreement may be cured, Executive shall have 20 business days to cure such breach from the date on which the Board delivers written notice to Executive reasonably identifying such breach).
(b) In the event of Executive’s resignation (other than within 30 days of a Good Reason Event), death, disability or other incapacity or the termination of the Employment Period for Cause, Executive will not be entitled to receive his Salary or any fringe benefits or Bonus for periods after the termination of the Employment Period but, in the case of death, disability or other incapacity, Executive will be entitled to receive a pro rata portion of his Bonus for the period during which Executive was employed by the Company at the time the Bonus would normally be paid and based upon the Company’s actual performance for the relevant fiscal year. In the event the Employment Period is terminated by the Company without Cause, or by Executive within 30 days after a Good Reason Event, then so long as Executive continues to comply with the terms of this Agreement, Executive shall be entitled to receive (i) severance payments in an aggregate amount equal to the greater of (A) remaining term of this Agreement or (B) one year (the greater of (A) or (B), the “Severance Period”), based on the Salary in effect at the time the Employment Period is terminated to the maximum extent possible without triggering excise taxes or limiting deductibility of the payment pursuant to Internal Revenue Code §280G, (ii) Benefits at the same level and on the same terms as they are provided from time to time to the Company’s senior management employees, for the Severance Period, and (iii) 100% acceleration of the vesting of any options granted by the Company to Executive to acquire capital stock of the Company. Any such severance payments pursuant to clause (i) will be paid in equal monthly installments; provided, that Executive shall be required to sign a release of all then existing claims against the Company and its Subsidiaries and their respective officers, directors, members, shareholders, employees and Affiliates (as defined below) as a condition to receiving such payments and benefits.
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6. Confidential Information. Executive acknowledges that the information, observations and data that have been or may be obtained by him during his employment relationship with, or through his involvement as a stockholder or director of, the Company or any Subsidiary or predecessor thereof (each of the Company, any Subsidiary or Affiliate or any such Affiliate predecessor being a “Company and its Subsidiaries”), prior to and after the date of this Agreement concerning the business or affairs of the Company and any of its Subsidiaries (collectively, “Confidential Information”) are and will be the property of the Company and its Subsidiaries. Therefore, Executive agrees that he will not disclose to any unauthorized Person or use for the account of himself or any other Person any Confidential Information without the prior written consent of the Company (by the action of the Board), unless and to the extent that such Confidential Information has become generally known to and available for use by the public other than as a result of Executive’s improper acts or omissions to act, or is required to be disclosed by law. Executive will deliver or cause to be delivered to the Company at the termination of the Employment Period, or at any other time the Company or any of its predecessors or Subsidiaries may request, all memoranda, notes, plans, records, reports, computer tapes and software and other documents and data (and copies thereof) containing or relating to Confidential Information or the business of any Company and its Subsidiaries which he may then possess or have under his control.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more of its intermediaries, controls, is controlled by or is under common control with such Person.
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“Business” means (i) any business into which any Company and its Subsidiaries enters during the Employment Period pursuant to any acquisition, joint venture, other strategic partnership or otherwise; and (ii) any other business in which the Company or its Subsidiaries engage as of the date on which Executive ceases to be employed by the Company or its Subsidiaries.
“Good Reason Event” means, during the Employment Period, (i) a substantial diminution in Executive’s professional responsibilities, (ii) the Company’s failure to timely pay any amounts due to Executive hereunder or a significant reduction in the Salary or in the aggregate of the Benefits, services, perquisites, and amenities which Executive was theretofore receiving, (iii) a change in Executive’s work location that increases the regular one-way commute distance between Executive’s residence and work location prior to such change by more than thirty (30) miles, (iv) any action or inaction that constitutes a material breach of this Agreement by the Company.
“Person” means an individual, a partnership, a corporation, an association, a limited liability company, a joint stock company, a trust, a joint venture, an unincorporated organization or any other entity (including any governmental entity or any department, agency or political subdivision thereof).
“Subsidiaries” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or (ii) if a limited liability company, partnership, association or other business entity, a majority of the partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of such Person or entity or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control any managing director, managing member, or general partner of such limited liability company, partnership, association or other business entity. Unless stated to the contrary, as used in this Agreement the term Subsidiary means a Subsidiary of the Company.
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(b) Amendment and Waiver. No modification, amendment or waiver of any provision of this Agreement will be effective unless such modification, amendment or waiver is executed by the Company (with the approval of the Board) and Executive. The failure of any party to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of such party thereafter to enforce each and every provision of this Agreement in accordance with its terms.
(h) GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEVADA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT PROVISION OR RULE (WHETHER OF THE STATE OF NEVADA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEVADA TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF NEVADA WILL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS AGREEMENT, EVEN IF UNDER THAT JURISDICTION’S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
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(A) Generally. The arbitration procedures described in this Section 13(i) will be the sole and exclusive method of resolving and remedying disputes arising out of this Agreement, other than disputes arising out of or relating to Section 6 of this Agreement. Except as otherwise provided in the JAMS’ Comprehensive Arbitration Rules and Procedures as in effect from time to time (the “JAMS Rules”), the arbitration procedures described in this Section 13(i) and any Final Arbitration Award (as defined below) will be governed by, and will be enforceable pursuant to, the Uniform Arbitration Act as in effect in the State of Nevada from time to time. Disputes that are subject to arbitration under the first sentence of this Section 13(i)(A) are referred to herein as “Eligible Disputes.”
(B) Procedures. If Executive and the Company do not amicably resolve any Eligible Dispute within thirty (30) days after delivery of a written notice by one such party to the other that an Eligible Dispute exists, then such dispute will be submitted to binding arbitration. The arbitral proceeding will take place in San Diego, Nevada or such other location agreeable to Executive and the Company, before a single arbitrator experienced in matters of the type involved in the dispute (the “Arbitrator”) and selected in accordance with the JAMS Rules.
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(j) WAIVER OF JURY TRIAL. NOTWITHSTANDING SECTION 13(i), EACH PARTY TO THIS AGREEMENT HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT OR ANY ALBGLLARY AGREEMENT OR THE VALIDITY, PROTECTION, INTERPRETATION, COLLECTION OR ENFORCEMENT THEREOF.
(l) Section 409A. The Company and Executive intend for this Agreement either to satisfy the requirements of Section 409A of the Code and all applicable guidance promulgated thereunder (“Section 409A”) or to be exempt from the application of Section 409A, and this Agreement shall be construed and interpreted accordingly. If this Agreement either fails to satisfy the requirements of Section 409A or is not exempt from the application of Section 409A, then the Company and Executive hereby agree to amend or to clarify this Agreement in a timely manner so that this Agreement either satisfies the requirements of Section 409A or is exempt from the application of Section 409A while best preserving the intention of the parties as evidenced by the terms set forth herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Employment Agreement as of the date first written above.
COMPANY:
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By: /s/ Xxx Xxx Xxx Xxxxxxx
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Name: Xx. Xxx Xxx Xxx Xxxxxxx
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Title: Chief Executive Officer and
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Director | |
By: /s/ Tan Paoy Teik
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Name: Xx. Xxx Paoy Teik
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Title: Chief Marketing Officer
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By: /s/ Chen Bor Xxxx
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Name: Xx. Xxxx Bor Xxxx
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Title: Secretary
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EXECUTIVE:
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By: /s/ Chen Bor Xxxx
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Name: Xx. Xxxx Bor Xxxx
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