Contract
EMPLOYMENT
AGREEMENT, effective as of this 1st day of February 2007 (this “Agreement”),
between Guo Fan, at 00 Xxxxxx Xxxxxx , Xxx. Xxxxxxxxx ,XX 00000 (the
“Executive”),
and
Pay88, Inc., a Nevada corporation with an office currently at 0000 Xxxxx
Xxxxxxxxx Xxxx, Xxxxxxxxx, XX 03225(the “Company”).
WITNESSETH:
WHEREAS,
the Company and the Board of Directors of the Company desire to memorialize
the
employment of the Executive on a full-time basis as its Chairman, President
and
Chief Executive Officer and the Executive desires to accept such employment
subject to the terms and conditions set forth in this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements and covenants set forth
herein, the parties hereto agree as follows:
ARTICLE
I
POSITION;
DUTIES;
1.1 Position.
The
Company hereby employs the Executive as the Chairman, President and Chief
Executive Officer of the Company, which employment the Executive hereby accepts,
all in the capacity and on the terms and conditions hereinafter set forth.
1.2 Duties.
(a)
During the Term (as defined below), the Executive shall be a full-time executive
of the Company, all under and subject to the direction and control of the Board
of Directors of the Company (the “Board”).
(b) In
his
capacity as Chairman, President and Chief Executive Officer, the Executive
shall
be the senior executive officer of the Company with principal responsibility
for
controlling the operations of the Company and shall perform such duties for
the
Company as are consistent with the foregoing, including, without limitation,
preparing and obtaining approval from the Board of the Company’s annual budget
and plan; advising management and establishing revenue models and growth
strategies, conducting market research and assessing the competitive environment
to identify opportunities; developing business plans for new business
development; advising and negotiating on financing initiatives; preparing and
making presentations to prospective customers, affiliates, investors and
partners, analyzing sales, marketing and distribution goals, establishing a
network of business opportunities for the Company and attending interviews,
conventions, trade shows, conferences or discussion panels on behalf of the
Company.
(c)
The
services to be performed by the Executive shall be commensurate with the
position of the Executive as the most senior executive executive of the Company.
In this position, during the Term (i) the Executive shall not render services
to
or for any other person, firm, corporation or business in this capacity and
(ii)
shall have no interest directly or indirectly in any other person, firm,
corporation or business whose business is related to or competitive with the
business of the Company; provided, however, that the Executive may own, directly
or indirectly, solely as an investment, securities of any entity which are
traded on any national securities exchange or which are admitted to quotation
on
The NASDAQ Stock Market Inc. if the Executive (a) is not a controlling person
of, or a member of a group which controls, such entity and (b) does not,
directly or indirectly, own one percent or more of any class of securities
of
such entity; Notwithstanding the foregoing, so long as it does not interfere
with his full time employment hereunder, the Executive may attend to outside
investments and serve as a director, trustee or officer of or otherwise
participate in charitable and civic organizations and serve as director of
corporations whose business is unrelated to the business of the Company and
continue to pursue his other business interests unrelated to the current or
future business of the Company.
ARTICLE
II
SALARY;
SHARES
2.1 Annual
Base Salary.
During
the Term, the annual base salary (the “Base
Salary”)
to be
paid by the Company to the Executive shall be One Hundred Thousand Dollars
($100,000), payable in equal bi-monthly installments, on the fifteenth and
last
days of each month, or in such other manner as the parties shall mutually agree,
subject to withholding for applicable taxes.
ARTICLE
III
BENEFITS
3.1 Business
Expenses The
Executive shall be reimbursed for all reasonable and necessary business expenses
incurred by the Executive in connection with the performance of his duties
under
this Agreement, as approved by the Company, including reasonable accommodation
expenses during travel required in connection with the performance of the
Executive’s duties.
3.2 Directors’
and Officers’ Liability Insurance.
The
Executive shall be covered by the directors’ and officers’ insurance policy to
be obtained by the Company. The Company agrees to defend the Executive from
and
against any and all lawsuits initiated against the Company and/or the
Executive.
3.3 Additional
Benefits.
The
Executive shall be entitled to participate in any pension or profit sharing
plans, group health, accident or life insurance plans, group medical and
hospitalization plan, and other similar benefits as may be available to the
executives of the Company. The Executive shall assist the Company in adopting
the proper plans for the Company.
ARTICLE
IV
TERM;
TERMINATION
4.1 Term.
The
term of employment shall commence as of the date set forth above and shall
continue until January 31, 2012 unless this Agreement is terminated prior
thereto in accordance with the terms hereof (the “Term”).
4.2 Termination. Notwithstanding
anything contained herein to the contrary, this Agreement and Executive’s
employment shall be terminated immediately upon the occurrence of any one of
the
following events:
(a)
The
death
of Executive.
(b) The
termination of the Agreement by the Company for "cause" after 30 days written
notice ("Notice of Termination") to Executive. "Cause" for purposes hereof
shall
consist of the following: (i) the willful and continuous failure of the
Executive to substantially perform the Executive’s duties to the Company (other
than any failure that results from the Executive’s having become mentally or
physically disabled or any actual or anticipated failure that results from
the
occurrence of events constituting “Good Reason” for termination by the
Executive) within 30 days after notice demanding substantial performance, which
notice shall specifically identify the duties that the Executive failed to
substantially perform, is given to the Executive by the Company; or (ii) the
Executive’s willfully engaging in conduct that the Executive knows to be
materially injurious to the Company.
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(c) The
Executive’s disability. “Disability” for purposes hereof means a physical or
mental infirmity which, in the opinion of a physician selected by the Company,
(i) shall render the Executive incapable of performing his duties hereunder
for
a continuous period of of not less than 6 months and (iii) did not result from
alcoholism or addiction to narcotics.
(d) The
termination of the Agreement by the Executive for Good Reason. “Good Reason” for
purposes hereof shall mean (i) a failure by the Company to comply with any
material provision of this Agreement which has not been cured within ten (10)
days after notice of such noncompliance has been given by the Executive to
the
Company, or (ii) any purported termination of the Executive’s employment by the
Company which is not effected pursuant to the provisions hereof (and for
purposes of this Agreement no such purported termination shall be
effective).
(e) The
resignation of the Executive without “Good Reason.”
(f) In
the
event the Company terminates, or attempts to terminate, the employment of the
Executive other than as provided above, or the Company otherwise is in breach
of
the terms of this Agreement, upon determination of a court of competent
jurisdiction or an arbitration or other similar panel that such breach has
occurred, the Executive shall be entitled to receive from the Company, and
the
Company agrees to pay or reimburse the Executive for, all legal fees, costs
and
other damages, including back-pay and benefits if applicable, incurred as a
result of such breach or wrongful termination.
4.3 Compensation
Upon
Termination or During Disability.
(a) If
the
Executive’s employment is terminated by his death pursuant to Section 4.2(a),
the Company shall pay to the Executive’s spouse, or if he leaves no spouse, to
his estate, commencing on the next succeeding day which is the fifteenth day
or
last day of the month, as the case may be, and bimonthly thereafter on the
fifteenth and last days of each month, until a total of six payments has been
made, an amount on each payment date equal to the bimonthly salary payment
payable to the Executive pursuant to Section 2.1 hereof at the time of his
death.
(b) If
the
Executive’s employment shall be terminated for cause pursuant to Section 4.2(b),
the Company shall pay the Executive his full salary through the date of the
termination, at the rate in effect at the time Notice of Termination is given,
plus all outstanding expenses payable pursuant to section 3.1 hereof through
the
date of termination. The Company shall have no further obligations to the
Executive under this Agreement.
(c) If
the
Executive’s employment shall be terminated without cause, the Company shall pay
the Executive his full salary through January ___, 2012, at the rate in effect
at the time Notice of Termination is given, plus all outstanding expenses
payable pursuant to section 3.1 hereof through the date of termination. The
Company shall have no further obligations to the Executive under this
Agreement.
(d) If
the
Executive’s employment shall terminate as a result of disability pursuant to
Section 4.2(c) hereof, the Company shall pay the Executive his full salary
through January 31, 2012 at the rate in effect at the date of termination,
plus
all outstanding expenses payable pursuant to section 3.1 hereof. During any
period that the Executive fails to perform his duties hereunder as a result
of
incapacity due to physical or mental illness ("disability period"), the
Executive shall continue to receive his full salary at the rate then in effect
for such period until his employment is terminated pursuant to section 4.2(c)
hereof, provided that payments so made to the Executive shall be reduced by
the
sum of the amounts, if any, payable to the Executive at or prior to the time
of
any such payment under disability benefit plans of the Company and which were
not previously applied to reduce any such payment.
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(e) If
the
Executive shall terminate his employment for Good Reason pursuant to Section
4.2(d), for any reason other than death or disability, then the Company shall
pay to the Executive his full salary through January 31, 2012, at the rate
in
effect at the time Notice of Termination is given, plus all outstanding expenses
payable pursuant to section 3.1 hereof through the date of
termination.
ARTICLE
V
REPRESENTATION;
NON-COMPETITION; CONFIDENTIALITY
5.1 Executive
Representation.
The
Executive represents that the Executive’s execution of this Agreement and the
performance of his duties required hereunder will neither be a breach of any
other employment or other agreement nor a breach of any non-competition or
similar agreement.
5.2 Non-Competition.
(a) The
Executive agrees that during the Term and for the period of two (2) years
thereafter, he will not engage, directly, either as principal, agent,
consultant, proprietor, creditor, stockholder, director, officer or executive,
or participate in the ownership, management, operation or control of any
business which directly or indirectly competes with the business of the Company.
The Executive acknowledges and agrees that the current market for the Company's
business extends throughout the world and that it is therefore reasonable to
prohibit the Executive from competing with the Company anywhere in such
territory. This Section shall not apply to the Executive’s ownership of less
than five percent (5%) of the capital stock of a company having a class of
capital stock which is traded on any national stock exchange or to the Executive
lecturing to any persons or organizations or consulting with other companies.
(b) During
the Term and for the period of two (2) years thereafter, the Executive agrees
that he will not, directly, (i) solicit, divert or recruit or encourage any
of
the executives or agents of the Company, or any person who was an executive
or
agent of the Company during the Term, to leave the employ of the Company or
terminate or alter their contractual relationship in a way that is adverse
to
the Company's interests, (ii) solicit or divert business from the Company,
or
assist any person or entity in doing so or attempting to do so or (iii) cause
or
seek to cause any person or entity to refrain from dealing or doing business
with the Company or assist any person or entity in doing so or attempting to
do
so.
5.3 Confidential
Information.
(a) The
Executive agrees that he shall hold in strict confidence and shall not at any
time during or after his employment with the Company, directly or indirectly,
(i) reveal, report, publicize, disclose, or transfer any Confidential
Information (as described below) or any part thereof to any person or entity,
(ii) use any of the Confidential Information or any part thereof for any purpose
other than in the course of his duties on behalf of the Company, or (iii) assist
any person or entity other than the Company to secure any benefit from the
Confidential Information or any part thereof. All Confidential Information
(regardless of the medium retained) and all abstracts, summaries or writings
based upon or reflecting any Confidential Information in the Executive’s
possession shall be delivered by the Executive to the Company upon request
therefor by the Company or automatically upon the expiration of the Term or
termination of this Agreement.
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(b) For
purposes of this Agreement, "Confidential
Information"
shall
mean any information relating to the business, operations, affairs, assets
or
condition (financial or otherwise) of the Company which is not generally known
by non-company personnel, or is proprietary or in any way constitutes a trade
secret (regardless of the medium in which information is maintained) which
the
Executive develops or which the Executive obtains knowledge of or access to
through or as a result of the Executive’s relationship with the Company.
Confidential Information specifically includes, without limitation, business
and
marketing plans, financings, cost and pricing information, supplier information,
all source code, system and user documentation, and other technical
documentation pertaining to the hardware and software programs of the Company,
including any proposed design and specifications for future products and
products in development, and all other technical and business information
considered confidential by the Company. Confidential Information shall not
include any information that is generally publicly available or otherwise in
the
public domain other than as a result of a breach by the Executive of his
obligations hereunder. For purposes of this Agreement, information shall not
be
deemed Confidential Information if (i) such information is available from public
sources, (ii) such information is received from a third party not under an
obligation to keep such information confidential, or (iii) the Executive can
conclusively demonstrate that such information had been independently developed
by the Executive.
5.4 Remedies. The
Executive agrees and acknowledges that the foregoing restrictions and the
duration and the territorial scope thereof as set forth in Sections 5.2 and
5.3
are under all of the circumstances reasonable and necessary for the protection
of the Company and its business. In the event that the Executive shall breach
or
threaten to breach any of the provisions of this Agreement, in addition to
and
without limiting or waiving any other remedies available to the Company, at
law
or in equity, the Company shall be entitled to immediate injunctive relief
in
any court, domestic or foreign, having the capacity to grant such relief, to
restrain any such breach or threatened breach and to enforce the provisions
of
this Agreement.
ARTICLE
VI
MISCELLANEOUS
6.1 Entire
Agreement.
This
Agreement constitutes the entire understanding between the Company and the
Executive with respect to the subject matter hereof and supersedes any and
all
previous agreements or understandings between the Executive and the Company
concerning the subject matter hereof, all of which are merged
herein.
6.2 Successors.
This
Agreement shall be binding upon and inure to the benefit of the Executive and
his heirs and personal representatives, and the Company and its successors
and
assigns.
6.3 Notices.
All
notices and other communications required or permitted hereunder shall be
delivered personally, sent via facsimile, certified or registered mail, return
receipt requested, or next day express mail or overnight, nationally recognized
courier, postage prepaid with proof of receipt, to the address or telephone
number (in the case of facsimile) set forth above. Such addresses and/or
telephone numbers may be changed by notice given in the manner provided herein.
Any such notice shall be deemed given (i) when delivered if delivered
personally, (ii) the day after deposit with the express or courier service
when
sent by next day express mail or courier, (iii) five (5) days after deposit
with
the postal service when sent by certified or registered mail, or (iv) when
sent
over a facsimile system with answer back response set forth on the sender's
copy
of the document.
6.4 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Nevada, without regard to choice of law principles.
6.5 Amendment
and Modification.
This
Agreement may be amended, modified or supplemented only by written agreement
executed by the Company and the Executive.
6.6 Headings.
The
section headings herein are inserted for the convenience of the parties only
and
are not to be construed as part of the terms of this Agreement or to be taken
into account in the construction or interpretation of this
Agreement.
6.7 Counterparts.
This
Agreement may be executed in counterparts and by facsimile, each of which shall
be deemed to be an original but both of which together will constitute one
and
the same instrument.
5
IN
WITNESS WHEREOF, the parties have entered into this Executive Employment
Agreement as of the day and year first above written.
| PAY88, INC. | ||
| |
|
|
| By: | /s/ Guo Fan | |
| Name: Guo Fan | ||
| Title: Chief Executive Officer | ||
| /s/ Guo Fan | ||
|
GUO
FAN
|
||
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