CHINA PRECISION STEEL, INC. EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT
(this “Agreement”) is
entered into as of January 1, 2007 (the “Effective Date”), by
and between CHINA PRECISION STEEL, INC., a Delaware corporation (along with its
successors and assigns, the “Company”), and WO
XXXX XX (“Executive”).
WHEREAS, the Company desires to
continue to employ Executive, and Executive desires to continue his employment
with the Company, on the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the
mutual promises contained herein and other good and valuable consideration, the
Company and Executive agree as follows:
1. Employment.
(a) Term. Subject
to the terms hereof, Executive’s employment hereunder shall commence as of the
Effective Date and continue until terminated by Executive or by the Company
pursuant to Section
3 of the Agreement (such period, the “Employment
Period”).
(b) Position and
Duties. During the Employment Period, Executive will serve as
the Company’s Chief Executive Officer and President, and Executive shall report
directly to the Company’s Board of Directors (the “Board”) and any
committees thereof. Executive will have the responsibilities, duties
and authority commensurate with the position of Chief Executive Officer and
President, and Executive will perform such other services of an executive nature
as may be prescribed from time to time by the Board. During the
Employment Period, Executive shall devote his full business time and efforts to
the performance of his duties hereunder. For the duration of the
Employment Period, Executive agrees not to actively engage in any other
employment, occupation or consulting activity for any direct or indirect
remuneration without the prior written approval of the Board, which approval
will not be unreasonably withheld; provided, however, that Executive may,
without the approval of the Board, serve in any capacity with any civic,
educational or charitable organization, subject to Executive’s obligations under
this Agreement.
During the Employment Period, upon and
subject to proper election and appointment by the shareholders of the Company,
Executive will serve as a member of the Company’s Board until such time as
Executive resigns or is properly removed as a member of the Board in accordance
with the Company’s Articles of Incorporation and/or
By-laws. Compensation, if any, fees and/or benefits paid to Executive
for service as a member of the Board and any committee thereof shall be
established by the Compensation Committee of the Board (the “Compensation
Committee”) from time to time.
2. Compensation.
(a) Base
Salary. During the Employment Period, the Company will pay
Executive a base salary at the annual rate of One Hundred and Forty Thousand
Dollars ($140,000), which amount will be reviewed annually and subject to
adjustment in the good faith discretion of the Board (or the Compensation
Committee), including without limitation, discretionary cost of living
adjustments (as adjusted from time to time, the “Base
Salary”). The Base Salary will be payable in substantially
equal installments in accordance with the Company’s payroll practices as in
effect from time to time.
(b) Annual
Bonus. During the Employment Period, based on Executive’s
performance relative to fixed targets set by the Compensation Committee in its
sole discretion, and subject to the overall performance of the Company,
Executive will be eligible to receive annual incentive bonuses, in the form of
cash or equity securities of the Company as may be determined by the
Compensation Committee from time to time.
(c) Vacation. During
the Employment Period, Executive will be entitled to three weeks paid vacation
in each calendar year (to be taken at such times and in such number of days as
Executive and the Company shall mutually agree), in accordance with the
Company’s policies for its senior executives as in effect from time to
time. Any accrued unused vacation may be carried over from one year
to the following year, provided that no more than five weeks vacation may be
carried over at any time.
(d) Benefits. During
the Employment Period, Executive (and his eligible dependents) will be entitled
to participate in the same manner as the Company’s other senior executives in
any employee benefit plans which the Company provides or may establish for the
benefit of its senior executives generally; provided that the Company reserves
the right to terminate or amend any of its employee benefit plans and programs
at any time.
(e) Reimbursement of
Expenses. During the Employment Period, the Company will
reimburse Executive for all out-of-pocket business expenses that are incurred by
him in furtherance of the Company’s business in accordance with the Company’s
policies with respect thereto as in effect from time to time.
3. Termination.
Executive’s employment hereunder will terminate upon the first to occur of the
following:
(a) Executive’s
death;
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(b)
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Termination
by the Company in the event of Executive’s Disability (as defined
below);
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(c) Termination
by the Company for Cause (as defined below);
(d) Termination
by the Company without Cause; or
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(e)
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Termination
by Executive, with or without Good Reason (as defined
below).
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For
purposes of this Agreement, the following terms shall have the following
meanings:
“Cause” means: (i)
Executive’s conviction of, or plea of nolo contendere to, a felony,
or a crime involving dishonesty, disloyalty or moral turpitude; (ii) Executive’s willful
disloyalty or deliberate dishonesty; (iii) the commission by Executive of an act
of fraud or embezzlement against the Company; (iv) Executive’s failure to use
his good faith efforts to perform in all material respects such duties as are
contemplated by this Agreement, or to follow any lawful direction of the Board
or any committee thereof; (v) Executive’s gross negligence in the performance of
his duties hereunder; or (vi) a material breach by Executive of any provision of
this Agreement or of any Company policy, which breach is not cured within thirty
(30) days after delivery to Executive by the Company of written notice of such
breach. Any determination of “Cause” shall be made in good faith by a
majority vote of the Board in its sole discretion.
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“Disability” means
Executive’s mental, physical or other disability, the condition of which renders
him incapable of performing his obligations under this Agreement for a period of
ninety (90) consecutive days or an aggregate of one hundred and twenty (120)
days (whether or not consecutive) in any 12-month period. Any
determination of “Disability” shall be made in good faith by a majority vote of
the Board in its sole discretion.
“Good Reason” means,
without Executive’s consent: (i) a material diminution in Executive’s Base
Salary; (ii) a material diminution in Executive’s responsibilities, duties or
authority as the Chief Executive Officer and President of the Company, which
causes Executive’s position with the Company to have less responsibility or
authority than Executive’s position immediately prior to such change, provided
that any such change is not in connection with the termination of Executive’s
employment with the Company; or (iii) a material breach by the Company of the
terms or conditions of this Agreement; provided however, if any of the
conditions described in subsections (i)-(iii) above occur, Executive is required
to provide written notice of such condition to the Board within sixty (60) days
of the initial occurrence of the condition, and, following such written
notice, the Company shall then have thirty (30) days to remedy such
condition, before the existence of any such condition (which is not otherwise
remedied by the Company) shall constitute “Good
Reason.”
4. Termination Procedures;
Effect of Termination.
(a) Notice of
Termination. Any termination of Executive’s employment by the Company or
Executive (other than termination on account of Executive’s death) shall be
communicated by written notice (a “Notice of
Termination”) to the other party hereto in accordance with Section 7(a) below,
which notice shall indicate the specific termination provision in Section 3 of this
Agreement relied upon and, if termination is by the Company for Cause or by
Executive for Good Reason, the specific reasons therefore.
(b) Date of
Termination. As used herein, “Date of Termination”
shall mean: (i) if Executive’s employment is terminated as a result of
Executive’s death, the date of Executive’s death; (ii) if Executive’s employment
is terminated by reason of Executive’s Disability, on the date Notice of
Termination is given or such later date specified in the Notice of Termination
as the effective date of termination; (iii) if Executive’s employment is
terminated by the Company for Cause, on the date Notice of Termination is given
or such later date specified in the Notice of Termination as the effective date
of termination; (iv) if Executive’s employment is terminated by the Company
without Cause, such date which is specified in the Notice of Termination as the
effective date of termination; and (v) if Executive’s employment is terminated
by Executive, with or without Good Reason, such date which is specified in the
Notice of Termination as the effective date of termination, which date shall be
at least thirty (30) days, but not more than one hundred and eighty (180) days,
following the date the Notice of Termination is given, unless the Company
demands an earlier termination date in its sole discretion (which demand will
not be deemed to be a termination “without Cause” for purposes of this
Agreement).
(c) Compensation Upon
Termination.
(i) At
any time that Executive’s employment is terminated, the Company will pay the
Accrued Obligations (as defined below) to Executive (or to his estate or legal
representative, if applicable) on or promptly following the Date of Termination,
in accordance with applicable law. For purposes of this Agreement,
“Accrued
Obligations” means (A) the portion of Executive’s Base Salary as has
accrued up through the Date of Termination which Executive has not yet been
paid, (B) an amount equal to the value of Executive’s accrued unused vacation
days, and (C) the amount of expenses incurred by Executive on behalf of the
Company prior to the Date of Termination and not yet reimbursed as of such
date.
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(ii) In
addition to the Accrued Obligations, if Executive’s employment is terminated by
the Company without Cause or by Executive for Good Reason (and other than due to
Executive’s death or Disability), then in exchange for Executive’s timely
execution and delivery to the Company of the Release required by Section 4(d) below,
the Company will pay to Executive a severance payment equal to six (6) months of
his then current Base Salary, payable in six equal installments over the
six-month period immediately following the Date of Termination in accordance
with the Company’s regular payroll schedule.
(iii) If
within twelve (12) months following a Change of Control (as defined below),
Executive's employment terminates without Cause or by Executive for Good Reason
(and other than due to Executive’s death or Disability) (each, a “Covered
Termination”), the vesting and exercisability of fifty percent (50%) of
Executive's stock options that are unvested at the time of the Covered
Termination shall accelerate and immediately become vested and exercisable as of
such date, and such options shall be exercisable for a period of twelve (12)
months following such date, but in no case beyond the relevant expiration dates
of such options. For purposes of this Agreement, a “Change of Control”
shall be deemed to have occurred if (A) a tender offer shall be made and
consummated for the ownership of more than 50% of the outstanding voting
securities of the Company, (B) the Company shall be merged or consolidated with
another corporation or entity and as a result of such merger or consolidation
less than 50% of the outstanding voting securities of the surviving or resulting
corporation or entity shall be owned in the aggregate by former shareholders of
the Company, as the same shall have existing immediately prior to such merger or
consolidation, (C) the Company shall sell, lease, or otherwise dispose of, all
or substantially all of its assets to another corporation or entity which is not
a wholly-owned subsidiary, or (D) a person, within the meaning of Section
3(a)(9) or Section 13(d)(3) (as in effect on the date hereof) of the Securities
Exchange Act of 1934 shall acquire more than 50% of the outstanding voting
securities of the Company (whether directly, indirectly, beneficially, or of
record).
Notwithstanding any other provision
with respect to the timing of payments under this Section 4(c), if, at
the time of Executive’s termination, Executive is deemed to be a “specified
employee” (within the meaning of Section 409A of the Internal Revenue Code
of 1986, as amended, and any successor statute, regulations and guidance thereto
(“Section
409A”) of the Company, then only to the extent necessary to comply with
the requirements of Section 409A, any payments to which Executive may
become entitled under this Section 4(c) which
are subject to Section 409A (and not otherwise exempt from its application) will
be withheld until the first business day of the seventh month following the Date
of Termination, at which time Executive shall be paid an aggregate
amount of any withheld payments otherwise due under this Section 4(c), as
applicable.
(d) Release. Executive
agrees, if his employment is terminated under circumstances entitling him to any
payments under Section
4(c) of this Agreement, that in consideration for such payments as
described in Section
4(c), Executive will execute and promptly deliver to the Company, a
general release (the “Release”) in form and
substance acceptable to the Company, through which Executive releases the
Company from any and all claims, known or unknown that Executive may have
against the Company, and any subsidiary or related entity, their officers,
directors, employees and agents, as may relate to or arise out of his employment
relationship or the termination thereof (excluding claims Executive may have
under any “employee pension plan” as described in Section 3(3) of ERISA or under
this Agreement).
5. Certain Covenants of the
Executive. Executive acknowledges that: (i) his work for the
Company and its subsidiaries and affiliates, will bring him into close contact
with many confidential affairs, documents, and information not readily available
to the public; and (ii) the covenants contained in this Section 5 will not
involve a substantial hardship upon his future livelihood. In order to induce
the Company to enter into this Agreement, the Executive covenants and agrees
that:
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(a) Non-Compete. During
the Term and for a period of twelve (12) months following the termination of
Executive’s employment with the Company or any of its subsidiaries or affiliates
(the “Restricted
Period”), Executive shall not, directly or indirectly, (i) in any manner
whatsoever engage in any capacity with any business competitive with the
Company, any of its subsidiaries or any of its affiliates (the “Company’s Business”)
for Executive’s own benefit or for the benefit of any person or entity other
than the Company or such subsidiary or affiliate; or (ii) have any interest as
owner, sole proprietor, shareholder, partner, lender, director, officer,
manager, employee, consultant, agent or otherwise in any business competitive
with the Company’s Business; provided, however, that
Executive may hold, directly or indirectly, solely as an investment, not more
than two percent (2%) of the outstanding securities of any person or entity
which are listed on any national securities exchange or regularly traded in the
over-the-counter market notwithstanding the fact that such person or entity is
engaged in a business competitive with the Company’s Business. In addition,
during the Restricted Period, Executive shall not develop any property or
invention for use in the Company’s Business on behalf of any person or entity
other than the Company, its subsidiaries and affiliates.
(b) Confidential
Information. During the Restricted Period, Executive shall not, directly
or indirectly, disclose to any person or entity who is not authorized by the
Company or any subsidiary or affiliate to receive such information, or use or
appropriate for his own benefit or for the benefit of any person or entity other
than the Company or any subsidiary or affiliate, any documents or other papers
relating to the Company’s Business or the customers of the Company or any
subsidiary or affiliate, including, without limitation, files, business
relationships and accounts, pricing policies, customer lists, computer software
and hardware, or any other materials relating to the Company’s Business or the
customers of the Company or any subsidiary or affiliate or any trade secrets or
confidential information, including, without limitation, any business or
operational methods, drawings, sketches, designs or product concepts, know-how,
marketing plans or strategies, product development techniques or plans, business
acquisition plans, financial or other performance data, personnel and other
policies of the Company or any subsidiary or affiliate, whether generated by
Executive or by any other person, except as required in the course of performing
his duties hereunder or with the express written consent of the Company; provided, however, that the
confidential information shall not include any information readily ascertainable
from public or published information, or trade sources (other than as a direct
or indirect result of unauthorized disclosure by Executive).
(c) Employees of and Consultants
to the Company. During the Restricted Period, Executive shall not,
directly or indirectly (other than in furtherance of the business of the
Company), initiate communications with, solicit, persuade, entice, induce or
encourage any individual who is then or who has been within the 12-month period
preceding Executive’s termination of employment with the Company, an employee of
or consultant to the Company or any of its subsidiaries or affiliates to
terminate employment with, or a consulting relationship with, the Company or
such subsidiary or affiliate, as the case may be, or to become employed by or
enter into a contract or other agreement with any other person, and Executive
shall not approach any such employee or consultant for any such purpose or
authorize or knowingly approve the taking of any such actions by any other
person.
(d) Solicitation of
Customers. During the Restricted Period, Executive shall not, directly or
indirectly, initiate communications with, solicit, persuade, entice, induce,
encourage (or assist in connection with any of the foregoing) any person within
mainland China and Taiwan, who is then or has been within the 12-month period
preceding Executive’s termination of employment with the Company a customer or
account of the Company or its subsidiaries or affiliates, or any actual customer
leads whose identity Executive learned during the course of his employment with
the Company, to terminate or to adversely alter its contractual or other
relationship with the Company or its subsidiaries or affiliates.
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(e) Rights and Remedies Upon
Breach. If Executive breaches, or threatens to commit a breach of, any of
the provisions of this Section 5
(collectively, the “Restrictive
Covenants”), the Company and its subsidiaries and affiliates shall, in
addition to the rights set forth in this Agreement, have the right and remedy to
seek from any court of competent jurisdiction specific performance of the
Restrictive Covenants or injunctive relief against any act which would violate
any of the Restrictive Covenants, it being acknowledged and agreed that any such
breach or threatened breach will cause irreparable injury to the Company and its
subsidiaries and affiliates and that money damages will not provide an adequate
remedy to the Company and its subsidiaries and affiliates.
(f) Severability of
Covenants. If any of the Restrictive Covenants, or any part thereof, is
held by a court of competent jurisdiction or any foreign, federal, state, county
or local government or other governmental, regulatory or administrative agency
or authority to be invalid, void, unenforceable or against public policy for any
reason, the remainder of the Restrictive Covenants shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and such
court, government, agency or authority shall be empowered to substitute, to the
extent enforceable, provisions similar thereto or other provisions so as to
provide to the Company and its subsidiaries and affiliates, to the fullest
extent permitted by applicable law, the benefits intended by such
provisions.
(g) Enforceability in
Jurisdictions. The parties intend to and hereby confer jurisdiction to
enforce the Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Covenants. If the courts of any one or more of such
jurisdictions hold the Restrictive Covenants wholly invalid or unenforceable by
reason of the breadth of such scope or otherwise, it is the intention of the
parties that such determination not bar or in any way affect the Company’s right
to the relief provided above in the courts of any other jurisdiction within the
geographical scope of such Restrictive Covenants, as to breaches of such
Restrictive Covenants in such other respective jurisdictions, such Restrictive
Covenants as they relate to each jurisdiction being, for this purpose, severable
into diverse and independent covenants.
6. Indemnification.
(a) General. The Company
agrees that if Executive is made a party or is threatened to be made a party to
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a “Proceeding”), other
than a Proceeding initiated by the Company or Executive to enforce their rights
under this Agreement, by reason of the fact that Executive is or was a trustee,
director or officer of the Company, or any predecessor to the Company or any of
their affiliates or is or was serving at the request of the Company, any
predecessor to the Company, or any of their affiliates as a trustee, director,
officer, member, employee or agent of another corporation or a partnership,
joint venture, limited liability company, trust or other enterprise, including,
without limitation, service with respect to employee benefit plans, whether or
not the basis of such Proceeding is alleged action in an official capacity as a
trustee, director, officer, member, employee or agent while serving as a
trustee, director, officer, member, employee or agent, Executive shall be
indemnified and held harmless by the Company to the fullest extent authorized by
Delaware law, as the same exists or may hereafter be amended, against all
Expenses incurred or suffered by Executive in connection therewith, and such
indemnification shall continue as to Executive even if Executive has ceased to
be an officer, director, trustee or agent, or is no longer employed by the
Company and shall inure to the benefit of his heirs, executors and
administrators. Notwithstanding the foregoing, Executive shall not be entitled
to indemnification by the Company in respect of, and to the extent that, any
Expenses arising as a result of the bad faith, willful misconduct or gross
negligence of Executive, or as a result of Executive’s conviction for a felony.
As used in this Agreement, and except as otherwise specifically excluded or made
inapplicable herein, the term “Expenses” shall
include, without limitation, damages, losses, judgments, liabilities, fines,
penalties, excise taxes, settlements, and costs, attorneys’ fees, accountants’
fees, and disbursements and costs of attachment or similar bonds,
investigations, and any expenses of establishing a right to indemnification
under this Agreement.
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(b) Enforcement. If a
claim or request under this Section 6 is not paid
by the Company or on its behalf, within thirty (30) days after a written claim
or request has been received by the Company, Executive may at any time
thereafter bring suit against the Company to recover the unpaid amount of the
claim or request and if successful in whole or in part, Executive shall be
entitled to be paid also the expenses of prosecuting such suit. All obligations
for indemnification hereunder shall be subject to, and paid in accordance with,
applicable Delaware law.
(c) Partial
Indemnification. If Executive is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of any
Expenses, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify Executive for the portion of such Expenses to which
Executive is entitled.
(d) Advances of Expenses.
Expenses incurred by Executive in connection with any Proceeding shall be paid
by the Company in advance upon written request of Executive that the Company pay
such Expenses, but only in the event that Executive shall have delivered in
writing to the Company (i) an undertaking to reimburse the Company for Expenses
with respect to which Executive is not entitled to indemnification and (ii) a
statement of his good faith belief that the standard of conduct necessary for
indemnification by the Company has been met.
(e) Notice of Claim.
Executive shall promptly give to the Company notice of any claim made against
him for which indemnification will or could be sought under this Agreement. In
addition, Executive shall give the Company such information and cooperation as
it may reasonably require and as shall be within Executive’s power and at such
times and places as are convenient for Executive.
(f) Defense of Claim.
With respect to any Proceeding as to which Executive notifies the Company of the
commencement thereof:
(i) the
Company will be entitled to participate therein at its own expense;
(ii) except
as otherwise provided below, to the extent that it may wish, the Company will be
entitled to assume the defense thereof, with counsel reasonably satisfactory to
Executive, which in the Company’s sole discretion may be regular counsel to the
Company and may be counsel to other officers and directors of the Company or any
subsidiary.
(iii) The
Company shall not be liable to indemnify Executive under this Agreement for any
amounts paid in settlement of any action or claim effected without its written
consent. The Company shall not settle any action or claim in any manner which
would impose any penalty that would not be paid directly or indirectly by the
Company or limitation on Executive without Executive’s written consent. Neither
the Company nor Executive will unreasonably withhold or delay their consent to
any proposed settlement.
(iv) The
right to indemnification and the payment of Expenses incurred in defending a
Proceeding in advance of its final disposition conferred in this Section 6 shall not
be exclusive of any other right which Executive may have or hereafter may
acquire under any statute or certificate of incorporation or by-laws of the
Company or any subsidiary, agreement, vote of shareholders or disinterested
directors or trustees or otherwise.
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7. General.
(a) Notices. All
notices, requests, consents and other communications hereunder will be in
writing, will be addressed to the receiving party’s address set forth below or
to such other address as a party may designate by notice hereunder, and will be
either (i) delivered by hand, (ii) sent by overnight courier, or
(iii) sent by registered or certified mail, return receipt requested,
postage prepaid. All notices, requests, consents and other
communications hereunder will be deemed to have been given either (A) if by
hand, at the time of the delivery thereof to the receiving party at the address
of such party set forth above, (B) if sent by overnight courier, on the
next business day following the day such notice is delivered to the courier
service, or (C) if sent by registered or certified mail, on the fourth business
day following the day such mailing is made. All notices, requests,
consents and other communications hereunder will be sent as
follows:
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If
to the Company:
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18th
Floor, Teda Building
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00
Xxxx Xxx Xxxxxx
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Xxxxxx
Xxx, Xxxx Xxxx
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People’s
Republic of China
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Attention: Company
Secretary
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If
to Executive:
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At
Executive’s home address, as listed in the Company’s personnel records
from time to
time.
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(b) Entire
Agreement. This Agreement (together with any other agreements
referenced herein) embodies the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersedes all
prior oral or written agreements and understandings relating to the subject
matter hereof. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in this Agreement will affect, or
be used to interpret, change or restrict, the express terms and provisions of
this Agreement.
(c) Modifications and
Amendments. The terms and provisions of this Agreement may be
modified or amended only by written agreement executed by the parties
hereto.
(d) Waivers and
Consents. The terms and provisions of this Agreement may be
waived, or consent for the departure therefrom granted, only by written document
executed by the party entitled to the benefits of such terms or
provisions. No such waiver or consent will be deemed to be or will
constitute a waiver or consent with respect to any other terms or provisions of
this Agreement, whether or not similar. Each such waiver or consent
will be effective only in the specific instance and for the purpose for which it
was given, and will not constitute a continuing waiver or consent.
(e) Successors and Assigns;
Third Party Beneficiaries. All statements, representations,
warranties, covenants and agreements in this Agreement will be binding on the
parties hereto and will inure to the benefit of the respective successors,
heirs, executors and permitted assigns of each party hereto. Any such
successor of the Company will be deemed substituted for the Company under the
terms of this Agreement for all purposes. For this purpose,
“successor” means any person, firm, corporation or other business entity which
at any time, whether by purchase, merger or otherwise, directly or indirectly
acquires all or substantially all of the assets or business of the
Company. Executive may not assign any of Executive’s rights to
compensation or other benefits under this Agreement, except by will or the laws
of descent and distribution. Any other attempted assignment,
transfer, conveyance or other disposition of Executive’s right to compensation
or other benefits will be null and void. Nothing in this Agreement
will be construed to create any rights or obligations except among the parties
hereto, and no person or entity will be regarded as a third-party beneficiary of
this Agreement.
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(f) Governing
Law. This Agreement and the rights and obligations of the
parties hereunder will be construed in accordance with and governed by the law
of the State of Delaware, without giving effect to the conflict of law
principles thereof.
(g) Severability. The
parties intend this Agreement to be enforced as written. However, if
any court of competent jurisdiction determines any provision, or any portion
thereof, of this Agreement to be unenforceable or invalid, then such provision
shall be deemed limited to the extent that such court deems it valid or
enforceable and the remaining provisions of this Agreement shall nevertheless
remain in full force and effect.
(h) Headings and
Captions. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference only and will in
no way modify or affect the meaning or construction of any of the terms or
provisions hereof.
(i) No Waiver of Rights, Powers
and Remedies. No failure or delay by a party hereto in
exercising any right, power or remedy under this Agreement, and no course of
dealing between the parties hereto, will operate as a waiver of any such right,
power or remedy of the party. No single or partial exercise of any
right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, will preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The
election of any remedy by a party hereto will not constitute a waiver of the
right of such party to pursue other available remedies. No notice to
or demand on a party not expressly required under this Agreement will entitle
the party receiving such notice or demand to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the party giving such notice or demand to any other or further action in any
circumstances without such notice or demand.
(j) Expenses. Each
party shall bear its own fees and expenses incurred in connection with the
preparation, negotiation, execution and delivery of this
Agreement. The prevailing party in any legal proceeding to enforce
this Agreement shall be entitled to legal fees and costs reasonably
incurred.
(k) Deductions and
Withdrawals. The Company will deduct from each payment to be
made to Executive under this Agreement such amounts, if any, required to be
deducted or withheld under applicable law or under any Company-sponsored
employee benefit plan in which Executive participates.
(l) Tax
Consequences. Executive hereby acknowledges and agrees that
the Company makes no representations or warranties regarding the tax treatment
or tax consequences of any compensation, benefits or other payments under the
Agreement, including, without limitation, by operation of Section
409A.
(m) Counterparts. This
Agreement may be executed in two or more counterparts, and by different parties
hereto on separate counterparts, each of which will be deemed an original, but
all of which together will constitute one and the same
instrument. This Agreement may be delivered by facsimile, and
facsimile signatures shall be treated as original signatures for all applicable
purposes.
(n) Opportunity to
Review. Executive hereby acknowledges that Executive has had
adequate opportunity to review these terms and conditions and to reflect upon
and consider the terms and conditions of this Agreement, and that Executive has
had the opportunity to consult with counsel of Executive’s own choosing
regarding such terms. Executive further
acknowledges that Executive fully understands the terms of this Agreement and
has voluntarily executed this Agreement.
[Remainder of page left intentionally
blank. Signature page to follow.]
9
IN
WITNESS WHEREOF, the undersigned have executed and delivered this Agreement as
of the date and year first above written.
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By:
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/s/ Che Xxx Xxx
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Che
Xxx Xxx
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Director
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EXECUTIVE
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/s/ Wo Xxxx Xx
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Wo
Xxxx Xx
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10
