AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This
AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made and entered into as of the
12th
day of February, 2010 (the “Agreement”), by and
between CHINA INFRASTRUCTURE CONSTRUCTION CORPORATION, a Colorado corporation
(the “Company”), having its
principal place of business at Shida Caifu Tiandi Building Suite 1906-09, 1
Hangfeng Road, Fengtai District, Beijing, 100070, China, and Mr. Xxxx Xxxx (the
“Executive”),
personal ID No. 110107196104151253 (collectively the “Parties”).
WITNESSETH:
WHEREAS,
on Xxxxx 00, 0000 Xxxxxxx Xxxxxxxx Xxxxxxx Concrete Co., Ltd., a subsidiary of
the Company, and Executive entered into that certain employment agreement
(“2009 Employment
Agreement”) whereby the Company agreed to employ Executive and Executive
agreed to accept employment with the Company as its Chief Executive Officer;
and
WHEREAS,
the Parties wish to amend and restate 2009 Employment Agreement in its entirety
by entering into this Agreement.
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
“Change of
Control” means the occurrence of any of the
following:
1.3.1 An
acquisition of any common stock or other voting securities of the Company
entitled to vote generally for the election of directors (the "Voting Securities")
by any "Person"
or "Group" (as
each such term is used for purposes of Section 13(d) or 14(d) of the Exchange
Act), immediately after which such Person or Group, as the case may be, has
"Beneficial
Ownership" (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of more than 20% of the then outstanding shares of common stock or
the combined voting power of the Company's then outstanding Voting Securities;
provided, however, that in determining whether a Change of Control has occurred,
shares of common stock or Voting Securities that are acquired in a Non-Control
Acquisition (as defined below) shall not constitute an acquisition which would
cause a Change of Control. "Non-Control
Acquisition" shall mean an acquisition by (i) the Company, (ii) any
subsidiary of the Company (“Subsidiary”) or (iii)
any employee benefit plan maintained by the Company or any Subsidiary, including
a trust forming part of any such plan (an "Employee Benefit
Plan");
1.3.2 When,
during any 2-year period, individuals who, at the beginning of the 2-year
period, constitute the Board of Directors (the "Incumbent Board of
Directors"), cease for any reason to constitute at least 50% of the
members of the Board of directors; provided, however, that (i) if the election
or nomination for election by the Company's shareholders of any new director was
approved by a vote of at least two-thirds of the Incumbent Board of directors,
such new director shall, for purposes hereof, be deemed to be a member of the
Incumbent Board of directors; and (ii) no individual shall be deemed to be a
member of the Incumbent Board of directors if such individual initially assumed
office as a result of either an actual or threatened "Election Contest" (as
described in Rule 14a-11 promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person or
Group other than the Board of directors (a "Proxy Contest")
including by reason of any agreement intended to avoid or settle any Election
Contest or Proxy Contest;
1.3.3
The consummation of:
1.3.3.1 a
merger, consolidation or reorganization involving the Company or any Subsidiary,
unless the merger, consolidation or reorganization is a Non-Control Transaction.
"Non-Control
Transaction" shall mean a merger, consolidation or reorganization of the
Company or any Subsidiary where:
1.3.3.1.1
the shareholders of the Company immediately prior to the merger, consolidation
or reorganization own, directly or indirectly, immediately following such
merger, consolidation or reorganization, at least 50% of the combined voting
power of the outstanding voting securities of the corporation resulting from
such merger, consolidation or reorganization (the "Surviving
Corporation") in substantially the same proportion as their ownership of
the common stock or Voting Securities, as the case may be, immediately prior to
the merger, consolidation or reorganization,
1.3.3.1.2
the individuals who were members of the Incumbent Board of directors immediately
prior to the execution of the agreement providing for the merger, consolidation
or reorganization constitute at least two-thirds of the members of the board of
directors of the Surviving Corporation, or a corporation beneficially owning,
directly or indirectly, a majority of the voting securities of the Surviving
Corporation, and
1.3.3.1.3
no Person or Group, other than (1) the Company, (2) any Subsidiary, (3) any
Employee Benefit Plan or (4) any other Person or Group who, immediately prior to
the merger, consolidation or reorganization, had Beneficial Ownership of not
less than 20% of the then outstanding Voting Securities or common stock, has
Beneficial Ownership of 20% or more of the combined voting power of the
Surviving Corporation's then outstanding voting securities or common
stock;
1.3.3.2 a
complete liquidation or dissolution of the Company; or
1.3.3.3 the
sale or other disposition of all or substantially all of the assets of the
Company to any Person (other than a transfer to a Subsidiary).
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Notwithstanding
the foregoing, a Change of Control shall not be deemed to have occurred solely
because any Person or Group (the "Subject Person")
acquired Beneficial Ownership of more than the permitted amount of the then
outstanding Voting Securities or common stock of the Company as a result of an
acquisition of Voting Securities or common stock by the Company which, by
reducing the number of shares of Voting Securities or common stock then
outstanding, increases the proportional number of shares beneficially owned by
the Subject Person; provided, however, that if a Change of Control would have
occurred (but for the operation of this sentence) as a result of the acquisition
of Voting Securities or common stock by the Company, and after such acquisition
by the Company, the Subject Person becomes the beneficial owner of any
additional shares of Voting Securities or common stock, which increases the
percentage of the then outstanding shares of Voting Securities or common stock
beneficially owned by the Subject Person, then a Change of Control shall be
deemed to have occurred.
1.4 "Code" means the
Internal Revenue Code of 1986, as amended.
1.5 “Common Stock” means
the Company’s common stock with no par value.
1.6 “Cause” means (i)
conviction of any crime whether or not committed in the course of his employment
by the Company; (ii) Executive’s refusal to carry out resolutions of the Board
which are consistent with Executive’s role as Chief Executive Officer; or (iii)
the breach of any representation, warranty or agreement between Executive and
Company.
1.7 “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, 15 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).
1.8 “Disability” means
Executive’s inability to render, for a period of three consecutive months,
services hereunder due to his physical or mental incapacity.
1.9 “Effective Date” means
the date hereof.
1.10 "Good Reason" means
the occurrence of one of the following without Executive’s written consent
(i) a reduction by the Company in Executive’s base compensation (base
salary and target bonus) as in effect immediately prior to such reduction; or
(ii) the failure of the Company to obtain the assumption of this Agreement
pursuant to Section 8.4.
1.11 “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.
1.12 “Prospective Customer”
shall mean 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.
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1.13 "Separation from
Service" or "Separates from
Service" means a termination of employment with the Company that the
Company determines is a Separation from Service in accordance with
Section 409A of the Code.
1.14 "Severance Payment"
means the payment of severance compensation as provided in Section 7 of
this Agreement.
2. EMPLOYMENT.
2.1 Agreement to Employ.
Effective as of the Effective Date, the Company hereby agrees to employ
Executive, and Executive hereby agrees to serve, subject to the provisions of
this Agreement, as an officer and Executive of the Company.
2.2 Duties and Schedule.
Executive shall serve as the Company’s Chief Executive Officer and shall have
such responsibilities as designated by the Board that are not inconsistent with
applicable laws, regulations and rules. Executive shall report
directly to the Board.
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 fifth 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 30 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 a gross amount of RMB 1,500,000 per annum or
such other rate as the Board of Directors may determine from time to time (the
“Salary”),
payable monthly in arrear from the Effective Date. The executive shall be
responsible in paying all applicable taxes.
4.2 Options/Restricted Common
Stock. The Company hereby grants 400,000 shares of options of the Company
to the Executive at the exercise price of $3.9 per share to be vested pursuant
to the Vesting Schedule provided in the Option Grant Agreement as defined
below. The options to the Executive shall be exclusively governed by
the terms of the Non-Qualified Stock Option Agreement, a form of which is
attached hereto as Exhibit
A (the “Option
Grant Agreement”) between the Company and the Executive.
4.3 Vacation. Executive
shall be entitled to twenty (20) days of paid vacation per year taken at such
times so as to not materially impede his duties hereunder. Vacation days that
are not taken in the current year may be carried over into future years or be
paid cash based on the annual salary rate at the executive’s
option. Sick leaves shall be consistent with the Company’s standard
policies and applicable U.S. law. Executive should be entitled to
standard PRC government holidays in addition to vacation or sick
leaves.
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4.4 Business Expenses.
Executive shall be reimbursed by the Company for all ordinary and necessary
expenses incurred by Executive in the performance of his duties hereunder on
behalf of the Company. Such expenses shall include but not be limited
to the following: (i) a fully maintained Company car and a driver; (ii) a cell
phone for the Executive’s performance of his duty hereunder; (iii) a
printer/scanner for the Executive’s performance of his duty hereunder; and (iv)
service fees of a cell phone, a landline phone and the Internet for the
Executive’s performance of his duty hereunder.
5. TERMINATION.
5.1 Termination Due to Death or
Disability.
5.1.1 Death. This Agreement
shall terminate immediately upon the death of Executive. Upon
Executive’s death, Executive’s estate or Executive’s legal representative, as
the case may be, shall be entitled to Executive’s accrued and unpaid Salary and
vacation as of the date of Executive’s death, plus all other compensation and
benefits that were vested through the date of Executive’s death.
5.1.2 Disability. In the
event of Executive’s Disability, this Agreement shall terminate and 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 fifteen (15) 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. 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.
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6. EXECUTIVE’S
REPRESENTATION. Executive hereby represents and warrants to the Company
that (i) the execution, delivery and performance of this Agreement by Executive
do not and shall not conflict with, breach, violate or cause a default under any
contract, agreement, instrument, order, judgment or decree to which Executive is
a party or by which he is bound, and (ii) upon the execution and delivery of
this Agreement by the Company, this Agreement shall be the valid and binding
obligation of Executive, enforceable in accordance with its
terms. Executive hereby acknowledges and represents that he has
consulted with independent legal counsel regarding his rights and obligations
under this Agreement and that he fully understands the terms and conditions
contained herein.
7. COMPENSATION UPON SEPARATION
FROM SERVICE FOLLOWING A CHANGE OF CONTROL. If Executive Separates from
Service on account of (i) an involuntary termination or (ii) a
voluntary termination for Good Reason, within twelve (12) months after a
Change in Control, then subject to (x) Executive’s signing and not revoking
a separation agreement and release of claims in a form reasonably satisfactory
to the Company and (y) Sections 7.4 and 7.5 below:
7.1 Executive
will be entitled to a Severance Payment in an amount computed as
follows:
7.1.1 A
lump sum payment, paid in accordance with subsection (c) below, equal to
fifteen (15) times your Annual Compensation and common stock equal to 3.0% of
the then outstanding common stock of the Company; plus
7.1.2 The
same percentage of Company-paid health and group-term life insurance benefits as
were provided to Executive and his family under plans of the Company as of the
Change of Control for a total of twenty-four (24) months, provided that all
payments be made prior to December 31 of the second year following the year
in which Executive Separates from Service. Notwithstanding the foregoing, the
Company may, at its option, satisfy any requirement that the Company provide
coverage under any plan by instead providing coverage under a separate plan or
plans providing coverage that is no less favorable.
7.2 The
Company agrees that, in addition to the payments and benefits provided under
Section 7.1, all outstanding unvested stock options, restricted stock,
performance shares and stock appreciation rights previously granted to Executive
under any Company equity or long-term incentive plan or program (a "Company Incentive
Plan") (including any stock options, restricted stock, performance shares
and stock appreciation rights assumed by the Company in connection with its
acquisition of another entity) shall immediately be 100% vested upon such
Separation from Service. Executive shall be entitled to exercise any stock
options or stock appreciation rights until the expiration of three months
following his Separation from Service (or until such later date as may be
applicable under the terms of the award agreement governing the stock option or
stock appreciation right upon termination of employment), subject to the maximum
full term of the stock option or stock appreciation right. In addition, the
Company agrees that all restricted stock units, performance-based restricted
stock units, and long-term incentive cash programs ("Long-Term
Incentives") previously granted to Executive under any Company Incentive
Plan shall immediately be 100% vested upon such Separation from Service;
however, the issuance or payment of such restricted stock units,
performance-based restricted stock units or Long-Term Incentives shall be
governed by Executive’s applicable grant or award
agreement. Notwithstanding the immediately preceding sentence, in no event
will the 100% vesting apply to restricted stock units, performance-based
restricted stock units or Long-Term Incentives if the 100% vesting would cause
adverse tax consequences under Code Sec. 409A.
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7.3 All
payments made to Executive under subsection 7.1 shall be made as soon as
administratively practicable following the six-month anniversary of the date of
his Separation from Service, provided that no Severance Payment shall be made to
Executive if the separation agreement and release of claims referenced above
have not become effective as of the six-month anniversary of the date of your
Separation from Service. Notwithstanding anything contained in subsections
7.1 and 7.2 above, the Company shall have no obligation to make any
payment or offer any benefits to Executive under this Section 7 if
Executive Separates from Service prior to a Change in Control or if he Separates
from Service within twelve (12) months after a Change in Control for Cause,
death, Disability, retirement or voluntary resignation other than for Good
Reason or if he Separates from Service for any reason after twelve
(12) months following a Change in Control.
7.4 Parachute Payments.
In the event that any payment or benefit received or to be received by Executive
in connection with his Separation from Service with the Company (collectively,
the "Severance
Parachute Payments") would (i) constitute a parachute payment within
the meaning of Section 280G of the Code or any similar or successor
provision to 280G and (ii) but for this Section 7.4, be subject to the
excise tax imposed by Section 4999 of the Code or any similar or successor
provision to Section 4999 (the "Excise Tax"), then
such Severance Parachute Payments shall be reduced to the largest amount which
would result in no portion of the Severance Parachute Payments being subject to
the Excise Tax. In the event any reduction of benefits is required pursuant to
this Agreement, Executive shall be allowed to choose which benefits hereunder
are reduced (e.g., reduction first from the Severance Payment, then from the
vesting acceleration). Any determination as to whether a reduction is required
under this Agreement and as to the amount of such reduction shall be made in
writing by the independent public accountants appointed for this purpose by the
Company (the "Accountants") prior
to, or immediately following, the Change of Control, whose determinations shall
be conclusive and binding upon Executive and the Company for all purposes. If
the Internal Revenue Service (the "IRS") determines that
the Severance Parachute Payments are subject to the Excise Tax, then the Company
or any related corporation, as their exclusive remedy, shall seek to enforce the
provisions of Section 7.5 hereof. Such enforcement of Section 7.5
below shall be the only remedy, under any and all applicable state and federal
laws or otherwise, for Executive’s failure to reduce the Severance Parachute
Payments so that no portion thereof is subject to the Excise Tax. The Company or
related corporation shall reduce the Severance Parachute Payments in accordance
with this Section 7.4 only upon written notice by the Accountants
indicating the amount of such reduction, if any. The Company shall bear all
costs the Accountants may reasonably incur in connection with any calculations
contemplated by this Agreement.
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7.5 Remedy. If,
notwithstanding the reduction described in Section 7.4 hereof, the IRS
determines that Executive is liable for the Excise Tax as a result of the
receipt of a Severance Parachute Payment, then Executive shall, subject to the
provisions of this Agreement, be obligated to pay to the Company (the "Repayment
Obligation") an amount of money equal to the Repayment Amount (defined
below). The "Repayment
Amount" with respect to the Severance Parachute Payments shall be the
smallest such amount, if any, as shall be required to be paid to the Company so
that Executive’s net proceeds with respect to any Severance Parachute Payments
(after taking into account the payment of the Excise Tax imposed on such
Severance Parachute Payments) shall be maximized. Notwithstanding the foregoing,
the Repayment Amount with respect to the Severance Parachute Payments shall be
zero if a Repayment Amount of more than zero would not eliminate the Excise Tax
imposed on such Severance Parachute Payment. If the Excise Tax is not eliminated
through the performance of the Repayment Obligation, Executive shall pay the
Excise Tax. The Repayment Obligation shall be performed within thirty
(30) days of either (i) Executive entering into a binding agreement
with the IRS as to the amount of his Excise Tax liability or (ii) a final
determination by the IRS or a decision by a court of competent jurisdiction
requiring Executive to pay the Excise Tax with respect to the Severance
Parachute Payments from which no appeal is available or is timely
taken.
7.6 No Mitigation.
Executive shall not be required to mitigate the amount of any payment provided
for in Section 7.1 hereof by seeking other employment or otherwise, nor
shall the amount of such payment be reduced by reason of compensation or other
income he receives for services rendered after his Separation from Service from
the Company.
7.7 Exclusive Remedy. In
the event of Executive’s Separation from Service on account of an involuntary
termination without Cause or a voluntary termination for Good Reason within
twelve (12) months following a Change of Control, the provisions of
Section 7.1 are intended to be and are exclusive and in lieu of any other
rights or remedies to which Executive or the Company may otherwise be entitled
(including any contrary provisions contained herein), whether at law, tort or
contract, in equity, or under this Agreement.
8. NON-COMPETITION:
NON-DISCLOSURE; INVENTIONS.
8.1 Trade
Secrets. Executive acknowledges that his 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 his 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 8, 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:
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8.1.1 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;
8.1.2 During
the period of Executive's employment with the Company and for 60 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
his 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 his
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;
8.1.3 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 his
personal entitlements and obligations, his rolodex, his personal correspondence
files; and any additional personal property;
8.1.4 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,
employee, 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;
8.1.5 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:
8.1.5.1 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;
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8.1.5.2 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
8.1.6 Executive
will not during the period of his 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,
8.1.6.1 conspire
with any person employed by any of the Companies with respect to any of the
matters covered by this Section 8;
8.1.6.2 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;
8.1.6.3 assist
any entity to solicit the employment of any Executive of any of the Companies;
or
8.1.6.4 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, co-venturer, or otherwise
encourage or induce them to terminate their employment with any of the
Companies.
8.2 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.
8.3 Executive
acknowledges and agrees that a violation of any one of the covenants contained
in this Section 8 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.
8.4 Successors.
8.4.1 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.
8.4.2 The Company. This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns. The Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company, to
expressly assume and agree to perform the obligations under this Agreement in
the same manner and to the same extent that the Company would be required to
perform if no such succession had taken place. As used in this Section 8.4,
Company includes any successor to its business or assets as aforesaid which
executes and delivers this Agreement or which otherwise becomes bound by all the
terms and provisions of this Agreement by operation of law.
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8.5 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 she 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.
9. MISCELLANEOUS.
9.1 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.
9.2 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.
9.3 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.
9.4 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:
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If to the
Executive:
Xxxx
Xxxx
1-1901,
#3 WangheYuan Shuguang Xiaoqu, Xxxxxxx Xxxxxxxx, Xxxxxxx, 000000,
Xxxxx
Telephone: 00-00000000000
Fax:00-00-00000000
If to the
Company:
Shida
Caifu Tiandi Building Suite 1906-09, 0 Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx,
000000, Xxxxx
Telephone: 00-00000000
Fax:
00-00-00000000
With a
copy to (which shall not constitute notice):
Guzov
Ofsink, LLC
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxx
Tel:
000-000-0000
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.
9.5 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.
9.6 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.
9.7 Captions.
The captions of this Agreement are not part of the provisions and shall
have no force or effect.
9.8 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.
12
9.9 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.
9.10 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.
9.11 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.
9.12 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.
|
EXECUTIVE:
|
CHINA
INFRASTRUCTURE
|
|||||
|
CONSTRUCTION
CORPORATION
|
||||||
|
By:
|
||||||
|
Xxxx
Xxxx
|
Name:
Yiru Shi
|
|||||
|
Title:
Chief Financial Officer
|
||||||
|
Acknowledged
on this 12th
day of February, 2010:
|
||||||
|
BEIJING
CHENGZHI QIANMAO
|
||||||
|
CONCRETE
CO., LTD.
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
14
EXHIBIT
A
OPTION
GRANT AGREEMENT
15
