Exhibit 10.1
EXECUTIVE EMPLOYMENT AGREEMENT
XXXXXX XXXXXX
This Executive Employment Agreement ("Agreement") is made and entered into as of
November 1, 2006, by and between China Direct Trading Corporation ("Company")
and Xxxxxx Xxxxxx, a natural person (the "Executive"). The Company and the
Executive may also hereinafter be referred to individually as a "party" and
collectively as the "parties."
RECITALS:
WHEREAS, the Company desires to employ Executive on a full-time basis and
Executive wishes to be employed by the Company on the terms and conditions set
forth in this Agreement; and
WHEREAS, the parties wish this Agreement to supersede all prior employment
agreements between the parties.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Company and Executive agree as follows:
1. TERM OF EMPLOYMENT.
1.1 Initial Employment Period. The Company agrees to employ the Executive as the
Chief Executive Officer and President of the Company, and the Executive accepts
employment with the Company, upon the terms set forth in this Agreement, for the
period beginning on 12:01 a.m., local Miami, Florida time, on November 1, 2006,
and ending on 11:59 p.m., local Miami, Florida time, on November 1, 2011 (the
"Employment Period"), during which time Executive will devote his full business
time to providing services hereunder. During the Employment Period, this
Agreement shall remain in force unless sooner terminated in accordance with the
provisions of this Agreement pursuant to Section 5 below. The Executive also
agrees to serve as Chairman of the Board of Directors of the Company and
Souvenir Direct, Inc., a Florida corporation and a wholly-owned subsidiary of
the Company as well as a co-Manager of Overseas Building Supplies, LLC, a
Florida limited liability company and a wholly-owned subsidiary of the Company.
The Executive agrees that the consideration provided hereunder is fair and
adequate consideration for all services provided in each of the aforesaid
capacities with named, other companies. Executive further agrees that this
Agreement shall not constitute an employment agreement for services rendered to
any company other than the Company. Any employment agreement with any other
company shall be and must be a separate written agreement with such other
company or companies.
1.2 Extension of the Employment Period. The parties may extend the Employment
Period of this Agreement by mutual agreement, provided that such agreement must
be approved by the Company Board of Directors in writing and no extension may
exceed five (5) years in length.
1.3 Termination of all Prior Employment Agreement. Executive hereby knowingly,
intentionally and voluntarily terminates any and all prior employment agreements
between the Company or any of its subsidiaries and the Executive. Executive
agrees and understands that this Agreement sets forth all of the terms and
conditions of his employment by the Company and that all rights, benefits and
claims under any prior employment agreement, whether written or oral, are
expressly waived and terminated by this Agreement.
2. EMPLOYMENT.
2.1 Position and Duties. During the Employment Period, the Company hereby agrees
to employ Executive as Chief Executive Officer and President on the terms set
forth herein. In such capacity, Executive has responsibility for the executive
oversight and strategic planning for the Company and its subsidiaries,
especially in terms of producing and implementing the Company's and its
subsidiaries' strategic marketing and sales plan and strategic business
development plan. The Company may also assign Executive to other duties
commensurate with Executive's skills and experience. Executive reports to, and
is directed by, the Board of Directors of the Company or such other person as is
designated in the discretion of the Company's Board of Directors. During the
Employment Period, Executive agrees to devote his full business time, ability,
knowledge and attention solely to the Company's business affairs and interests
and to faithfully and diligently perform such services and assume such duties
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and responsibilities as are assigned to the best of Executive's abilities,
skills and efforts and to abide by applicable Company policies and directives as
they exist from time to time.
2.2 Location. The Executive shall render his services under this Agreement in
the principal executive offices of the Company which shall be in the greater
Fort Lauderdale-Miami consolidated metropolitan area. Under no circumstances
shall the Executive be required to relocate from more than twenty miles (20)
from said metropolitan area or provide services under this Agreement in any
other location other than in connection with reasonable and customary business
travel. The Company reserves the right to make a temporary reassignment of the
location for the performance of Executive's services hereunder for a period not
to exceed forty five (45) days, which relocation shall not constitute a breach
of this Agreement.
2.3 Limitations on Outside Activities. Nothing in this Agreement shall preclude
the Executive from devoting reasonable time and attention to (i) serving, with
the approval of the Company's Board of Directors, which shall not be
unreasonably withheld, as a director, trustee or member of any committee of any
organization, (ii) engaging in charitable and community activities and (iii)
managing his personal investments and affairs; provided that such activities do
not involve any material conflict of interest with the interests of the Company
or, individually or collectively, interfere materially with the performance by
the Executive of his duties and responsibilities under this Agreement.
Notwithstanding the foregoing and except as expressly provided herein, during
the Employment Period, the Executive may not accept employment with any other
individual or entity, or engage in any other venture which is directly or
indirectly in conflict or competition with the business of the Company.
3. COMPENSATION.
3.1 Base Salary. In consideration of Executive's services to the Company, the
Company will pay Executive a gross base salary of ONE HUNDRED THOUSAND DOLLARS
AND NO CENTS ($100,000.00) per annum. The Executive's base salary will be paid
in equal installments in accordance with the Company's standard payroll
schedule, and the Company will withhold from such salary all applicable federal,
state and local taxes as required by applicable laws. The Company will review
Executive's base salary at least annually during his/her employment and make
such adjustments as determined in its discretion. Executive agrees that the
Company may from time to time, if the Company lacks sufficient cash flow from
operations to pay the cash compensation due to the Executive hereunder for any
month or months during the term hereof in "restricted" (as defined in Rule 144
under the Securities Act of 1933, as amended) shares of Company Common Stock,
$0.0001 par value, ("Shares"), which payments shall be made in semi-annual
installments. The Company hereby grants "piggy-back" registration rights to the
Executive for all such Shares that are issued hereunder (expressly excepting any
registration on Form S-8 or Form S-4, or any successor form to those two forms).
The value of the Shares in respect of the cash compensation being replaced by
such Shares shall be determined by the average closing BID price for the Shares
(as quoted on xxx.xxxxxxxxx.xxx) for the first twenty (20) consecutive trading
days for each month in which Shares will be substituted for cash compensation
hereunder.
3.2 Bonus. In addition, Executive will participate in any bonus program adopted
by the Company for senior officers in accordance with its terms as they exist
from time to time, or such other bonus or incentive compensation plan or
arrangement that is made available to full-time executive officers of the
Company.
4. BENEFITS AND REIMBURSEMENTS.
4.1 Insurance. Executive shall be entitled to participate in any fringe benefit
programs, including health insurance, dental insurance, vision insurance, life
insurance, accident insurance and short and long term disability insurance, as
well as any similar insurance programs offered by the Company to individuals
employed by the Company as executives or in otherwise similar positions.
4.2 Leave. Executive shall be entitled to twenty five (25) days of paid vacation
and seven (7) days of paid personal leave each year (during which time his
compensation shall continue to be paid in full). Executive shall also be
entitled to five (5) days of sick leave, during which time his compensation
shall continue to be paid in full. Executive may carry over up to five (5) days
of unused vacation/personal leave from contract year to contract year. For
purposes of this Agreement, "contract year" means from 12:01 a.m., local Miami,
Florida time, on November 1st to 11:59 p.m., local Miami, Florida time, on the
November 1st of the immediately following year.
4.3 Stock Option, Savings or Retirement Plans. Executive shall be entitled to
participate in any pension, profit-sharing, deferred compensation plans,
bonuses, stock option or other incentive compensation plans as are offered by
the Company to individuals employed by the Company as full-time executive and
subject to the same qualifications as other full-time executive employees.
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4.4 Expenses. The Company shall reimburse Executive for the reasonable amount of
hotel, travel, entertainment and other expenses necessarily incurred by
Executive in the discharge of his duties to the Company, subject to the
Company's expense policy.
4.5 Technology. The Company shall provide Executive with a laptop computer and a
cellular phone for his use during the Employment Period. These shall remain the
property of the Company, and shall be returned to the Company upon the
termination of the Executive's employment.
5. TERMINATION.
The employment of Executive by Company and the
Employment Period shall terminate upon the
occurrence of any of the following conditions:
5.1 Expiration. Immediately upon the expiration of the Employment Period set
forth in Section 1 above, including any extension of the Employment Period as
agreed upon in writing pursuant to Section 1.2 above or automatically extended
pursuant to Section 1.3 above.
5.2 Death. Immediately upon the death of Executive.
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5.3 Disability. Immediately upon the Disability of Executive. Immediately upon
the death or disability of the Executive. As used herein, the term "Disability"
shall mean either (i) the Executive's inability, by reason of physical or mental
incapacity or impairment, to perform his duties and responsibilities under this
Agreement for a period of more than 120 consecutive days, or for more than 180
days, whether or not consecutive, within the preceding 365-day period, or (ii)
the receipt by the Executive of disability benefits for permanent and total
disability under any long-term disability income policy held by or on behalf of
the Executive.
5.4 By the Company for Cause. Immediately upon provision of written notice to
the Executive by the Company that his employment is being terminated for Cause,
as defined below. "Cause" for termination means:
(i) Executive's willful and intentional refusal to perform or
observe any of his material duties, responsibilities or obligations set
forth in this Agreement; provided, however, that the Company shall not
be deemed to have Cause pursuant to this clause (i) unless the Company
gives the Executive written notice that the specified conduct has
occurred and making specific reference to this Section 5.4(i) and the
Executive fails to cure the conduct within thirty (30) days after
receipt of such notice;
(ii) any willful and intentional act of the Executive
involving fraud, theft, misappropriation of funds, or embezzlement
affecting the Company or its subsidiaries;
(iii) Executive's conviction of, or a plea of guilty or NOLO
CONTENDERE to, an offense which is a felony or a misdemeanor evincing
moral turpitude;
(iv) Executive's material breach of this Agreement which is
not remedied within fifteen (15) days after receipt of a written demand
to remedy from the Company; or
(v) Gross misconduct by Executive that is of such a serious or
substantial nature that a substantial likelihood exists that such
misconduct would injure the public business reputation of the Company
if the Executive were to remain employed by the Company; or
(vi) Issuance of any prohibition by the U.S. Securities and
Exchange Commission or "SEC" against the Executive serving as an
officer or director of a public company and the period for appeal of
such prohibition has expired without the Executive filing an appeal; or
(vii) the Company files for Chapter 7 protection from
creditors and the bankruptcy petition is not withdrawn or dismissed
within sixty days after the filing date; or
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(viii) Executive intentionally refuses to follow a lawful,
commercially reasonable directive of the Company Board of Directors,
such directive concerns an action or matter within the purview of the
Executive's customary and usual duties and the refusal of the Executive
results in the Company or any of its subsidiaries suffering a material
liability or loss (for purposes of this Agreement, "material" shall
mean an amount equal to or exceeding One Hundred Thousand Dollars and
No Cents ($100,000.00).
5.4A Termination of the Executive for Cause shall be communicated by a Notice of
Termination. For purposes of this Agreement, a "Notice of Termination" shall
mean delivery to the Executive of written notice from duly authorized officers
of the Company stating that in the good faith determination of the Company the
Executive was guilty of conduct constituting Cause and failed to cure such
conduct within the applicable time period. For purposes of this Agreement, no
such purported termination of the Executive's employment shall be effective
without such Notice of Termination.
5.5 By Company Without Cause. At the election of the Company after serving the
Executive with at least three (3) months notice of the Company's intent to
termination his employment Without Cause. The Company shall have the right to
pay the Executive the notice period in lieu of notice.
5.6 By Executive for Good Reason. As used herein, the term "Good Reason" means
the occurrence of any of the following, without the prior written consent of the
Executive:
(i) assignment to the Executive of duties materially
inconsistent with the Executive's positions as described in Section 2.1
hereof, or any significant diminution in the Executive's duties or
responsibilities, other than in connection with the termination of the
Executive's employment for Cause, Disability or as a result of the
Executive's death or by the Executive other than for Good Reason;
(ii) the change in the location of the Company's principal
executive offices or of the Executive's principal place of employment
to a location outside the greater Fort Lauderdale-Miami, Florida
metropolitan area/more than twenty five miles from the current
location;
(iii) any material breach of this Agreement by the Company
which is continuing;
(iv) a Change in Control, provided that a Change of Control
shall only constitute Good Reason if the Executive terminates his
employment within six (6) months following a Change of Control;
provided, however, that the Executive shall not be deemed to
have Good Reason pursuant to clauses (i) or (iii) above unless the
Executive gives the Company written notice that the specified conduct
or event has occurred and the Company fails to cure such conduct or
event within thirty (30) days of the receipt of such notice. A "Change
of Control" shall be deemed to have occurred when any person, other
than Executive or his respective affiliates, associates, or estate,
becomes, after the date of grant, the beneficial owner, directly or
indirectly, of securities of the Company representing 50% or more of
the combined voting power of the Company's then-outstanding securities;
6. EFFECT OF TERMINATION AND SEVERANCE.
6.1 If the Employment Period is terminated by the Company for Cause, the Company
will pay to the Executive his accrued and unpaid base salary as well as all
accrued but unused vacation through the date of such termination;
6.2 If the Employment Period is terminated by the Executive other than because
of death, Disability or for Good Reason, the Company will pay to the Executive
his accrued and unpaid base salary as well as all accrued but unused vacation
through the date of such termination;
6.3 If the Employment Period is terminated upon the Executive's death or
Disability,
(i) the Company will pay to the Executive's estate or the
Executive, as the case may be, a lump sum payment equal to the
Executive's base salary through the termination date, plus a pro rata
portion of the Executive's bonus for the fiscal year in which the
termination occurred;
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(ii) the Company will pay to the Executive's estate or the
Executive, as the case may be, a lump sum payment equivalent to the sum
of (x) one-year's base salary at the annual base salary rate Executive
was earning as of the date of termination; (y) the bonus payment(s)
Executive received in the preceding fiscal year; and (z) the cost of
Executive's health and dental insurance premiums for the preceding
fiscal year.
6.4 If the Employment Period is terminated by the Company without Cause or if
the Executive terminates for Good Reason,
(i) the Company shall pay the Executive a lump sum payment equal to the greater
of: (A) the sum of (x) one-year's base salary at the annual base salary rate
Executive was earning as of the date of termination and (y) the bonus payment(s)
Executive received in the preceding fiscal year; and (B) the sum of (x) the base
salary Executive would have earned had he remained employed through the
remainder of the Employment Period and (y) the bonus payment(s) Executive
received in the preceding fiscal year multiplied by the number of years
remaining in the Employment Period (and adjusted on a pro rata basis for any
partial year remaining in the Employment Period);
(ii) the Company shall also continue in effect the Executive's health and dental
benefits (or similar health and dental benefits paid to senior executives noted
in Section 3(c)) as follows: If Executive is eligible for continued health
insurance benefits under the federal law known as COBRA and Executive timely
elects COBRA coverage and makes timely payment of required premiums, the Company
will reimburse Executive the cost of such COBRA coverage until the earlier of
(x) eighteen (18) months from the termination date or (y) the date on which the
Executive obtains health insurance coverage from a subsequent employer. If
Executive is not eligible for COBRA benefits, the Company will reimburse
Executive the cost of similar coverage Executive obtains until the earlier of
(x) eighteen (18) months from the termination date or (y) the date on which the
Executive obtains health insurance coverage from a subsequent employer.
6.5 If at any time the Employment Period is not extended pursuant Section 1.3 as
a result of the Company giving notice thereunder that it elects to permit the
Agreement to expire without extension, the Company shall be deemed to have
terminated the Executive's employment without Cause and Executive shall be
entitled to the severance benefits set forth in Section 6.4.
7. CONFIDENTIAL INFORMATION.
Executive acknowledges that he will occupy a position of
trust and confidence with respect
to the Company's affairs and business and that, in connection with the
performance of his services on behalf of the Company, Executive will be provided
access to the Company's confidential and proprietary information and trade
secrets ("Company Confidential Information") and confidential and proprietary
information of third parties ("Third Party Information").
7.1 Confidential Information Defined. The term "Company Confidential
Information" shall mean any and all confidential and/or proprietary information
of the Company. By way of illustration but not limitation, Company Confidential
Information includes: information and materials related to proprietary computer
software, hardware, including hard drives, electronic files and websites,
research, business procedures and strategies, marketing plans and strategies,
member lists and business histories, analyses of member information, employee or
prospective employee information, financial data of the Company or its customers
or employees, and any other information that is not generally known to the
public or within the industry in which the Company competes. Executive further
acknowledges that the Company has and in the future will receive from third
parties confidential and proprietary information ("Third Party Information"),
including but not limited to confidential and proprietary information of the
Company's customers, subject to a duty on the Company's part to maintain the
confidentiality of such information and to use it for certain limited purposes
for a period of two (2) years thereafter.
7.2 Executive's Obligations.
(i) Non-Disclosure. Executive agrees that during Executive's
employment with the Company and thereafter, Executive will not use,
disclose, lecture upon, publish or transfer directly or indirectly any
Company Confidential Information or Third Party Information other than
as authorized by the Company, nor will Executive accept any employment
or other professional engagement that likely will result in the use or
disclosure, even if inadvertent, of Company Confidential Information or
Third Party Information. Executive agrees that he will not use in any
way other than in furtherance of the Company's business any Company
Confidential Information or Third Party Information. Executive will
obtain the Company's written approval before publishing or submitting
for publication any material (written, verbal, or otherwise) that
relates to Executive's work at the Company and/or incorporates any
Confidential Information. Executive hereby assigns to the Company any
rights Executive may have or acquire in such Confidential Information
and recognizes that all Confidential Information shall be the sole
property of the Company and its/their assigns.
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(ii) Disclosure Prevention. Executive agrees to take all
reasonable steps to preserve the confidential and proprietary nature of
Company Confidential Information and Third Party Information and to
prevent the inadvertent or accidental disclosure of Company
Confidential Information and Third Party Information.
(iii) Removal of Materials. Executive agrees that Executive
will not remove any Company Confidential Information or Third Party
information from the Company's premises or make copies of such
materials except for use in the Company's business.
(iv) Return of Materials. Executive agrees not to retain and
further agrees to return to the Company any tangible or intangible
originals or copies of any Company Confidential Information or Third
Party Information after termination of Executive's employment, or
earlier at the Company's request for any reason. Executive further
agrees to provide the Company with access to any personal computer
equipment and/or devices that Executive has used during the term of
this Agreement, so that the Company may verify that all of its Company
Confidential Information or Third Party Information has been deleted
from this equipment.
(v) Copying. Executive agrees that copying of Company
Confidential Information or Third Party Information shall be done only
as needed in furtherance of and for use in the Company's business.
Executive further agrees that copies of Company Confidential
Information and Third Party Information shall be treated with the same
degree of confidentiality as the original information and shall be
subject to the same restrictions herein.
(vi) Continuation of Obligations. Executive agrees that the
obligations of this Section shall continue after termination or
Executive's employment.
(vii) Computer Security. Executive agrees that, during his
employment with the Company, he will use computer resources (both on
and off of the Company's premises) for which Executive has been granted
access and then only to the extent authorized. Executive agrees to
comply with the Company's policies and procedures concerning computer
security. Executive further acknowledges that Executive will not alter,
remove or destroy any Company Confidential Information or Third Party
Information stored on any electronic storage devices, including, but
not limited to, electronic media stored on servers, local hard drives,
lap-tops, "PDAs" or any other similar devices except in accordance with
the Company's record retention and destruction policy.
(viii) Email and Internet. Executive understands that the
Company maintains an electronic mail and Internet/World Wide Web
("Internet") system, and related facilities, for the purpose of
business communications. Executive acknowledges that the Company owns
such a system and facilities, and that the Company retains the right to
review any and all electronic mail and Internet communications, and to
review his use of the Internet, with or without notice, at any time.
Executive further acknowledges that he has no right to privacy to any
e-mail or Internet communications, or to his use of the Internet.
Executive further agrees to comply with the Company's procedures
concerning the use of e-mail and the Internet, including compliance
with any destruction and/or retention policies for e-mail
communications.
7.3 Known Knowledge. Subject to the foregoing obligations, it is understood that
Executive is free at all times to use information which is generally known in
the trade or industry (except such information which becomes so because of a
breach of this Agreement by Executive) and further that Executive's general
knowledge, skill and experience shall not be deemed to be Confidential
Information.
8. ASSIGNMENT OF INVENTIONS.
8.1 Definitions. The term "Proprietary Rights" shall mean all trade secret,
patent, copyright, mask work and other intellectual property rights or "moral
rights" throughout the world. "Moral rights" refers to any rights to claim
authorship of an Invention or to object to or prevent the modification of any
Invention, or to withdraw from circulation or control the publication or
distribution of any Invention, and any similar right, existing under judicial or
statutory law of any country in the world, or under any treaty, regardless of
whether or not such right is denominated or generally referred to as a "moral
right."
8.2 Assignment of Inventions. Executive hereby assigns and agrees to assign in
the future (when any such Inventions or Proprietary Rights are first reduced to
practice or first fixed in a tangible medium, as applicable) to the Company all
his or her right, title and interest in and to any and all Inventions (and all
Proprietary Rights with respect thereto) whether or not patentable or
registrable under copyright or similar statutes, made or conceived or reduced to
practice or learned by the Executive, either alone or jointly with others,
during the period of his or her employment with the Company. Inventions assigned
to the Company, or to a third party as directed by the Company, are hereinafter
referred to as "Company Inventions."
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8.3 Unassigned Inventions. This Agreement will not be deemed to require
assignment of any invention that was (1) developed entirely on the Executive's
own time without using the Company's equipment, supplies, facilities, or
Proprietary Information and (2) is not related to the Company's actual or
anticipated business, research or development and (3) has not resulted from work
performed by Executive for the Company. Attached as Exhibit One hereto is a
complete list of all Inventions that the Executive has conceived, developed or
reduced to practice prior to the Effective Date of this Agreement, alone or
jointly with others, that are the Executive's sole property or the property of
third parties and which are excluded from the scope of this Agreement.
8.4 Works for Hire. Executive acknowledges that all original works of authorship
which are made by the Executive (solely or jointly with others) within the scope
of Executive's employment and which are protectable by copyright are "works made
for hire," pursuant to United States Copyright Act (17 U.S.C., Section 101).
8.5 Enforcement of Proprietary Rights. Executive agrees to assist the Company in
every proper way to obtain, and from time to time enforce, United States and
foreign Proprietary Rights relating to Company Inventions in any and all
countries. To that end Executive agrees to execute, verify and deliver such
documents and perform such other acts (including appearances as a witness) as
the Company may reasonably request for use in applying for, obtaining,
perfecting, evidencing, sustaining and enforcing such Proprietary Rights and the
assignment thereof. In addition, Executive will execute, verify and deliver
assignments of such Proprietary Rights to the Company or its designee.
Executive's obligation to assist the Company with respect to Proprietary Rights
relating to such Company Inventions in any and all countries shall continue
beyond the termination of his or her employment, but the Company shall
compensate Executive at a reasonable rate after Executive's termination for the
time actually spent by Executive at the Company's request on such assistance.
9. RESTRICTIVE COVENANTS.
9.1 Acknowledgements. Executive acknowledges that (i) his services to the
Company will be special and unique and that he will occupy a position of trust
and confidence with respect to the business affairs of the Company; (ii) that
his engagement for the Company will allow him access to the Company's
Confidential Information; (iii) that he will have access to the customers and
clients of the Company and will be working to develop business relationships for
the Company; (iv) that the Company would not have entered into this Agreement
with Executive, or engaged Executive, but for the covenants and agreements
contained in this Section; and (v) that the agreements and covenants contained
in this Section are essential to protect the business, good will, and
confidential information of the Company.
9.2 Non-Competition. During the Employment Period and for eighteen (18) months
thereafter, Executive shall not, directly or indirectly, in any geographic area
in which the Company operates compete with the Company in the development,
marketing, or sale of products that compete with those developed, marketed, or
sold by the Company.
9.3 Non-Solicitation of Employees. During the Employment Period and for eighteen
(18) months thereafter, Executive shall not, directly or indirectly, on his own
behalf or on behalf of any other person or entity, solicit for employment, hire,
or engage, whether on a full-time, part-time, consulting, advising, or any other
basis, any persons who were employees or Executives of the Company during the
Employment Period.
9.4 Non-Solicitation of Customers. During the Employment Period and for [twelve
(12) months] thereafter, Executive shall not, in competition with the Company,
directly or indirectly, on his own behalf or on behalf of any other person or
entity, solicit, accept business from, or conduct business with, (i) any
customer or client served by the Company prior to or during the Employment
Period with which Executive had contact or about which Executive received
information or knowledge during the Employment Period, or (ii) any prospective
customer or client of the Company with which Executive had contact or about
which Executive received information or knowledge during the Employment Period.
9.5 Independent Covenants.
The Restrictive Covenants set forth herein are each to be construed as a
separate agreement, independent of any other provisions of this Agreement.
Therefore, the Executive agrees that the existence of any claim or cause of
action that Executive may have against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by the
Company of any provision of this Section 9 against the Executive.
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10. ENFORCEMENT.
10.1 Equitable Relief Authorized. Executive acknowledges that in the event of a
violation of the provisions of Sections 7, 8 or 9 of this Agreement, Company's
business interests will be irreparably injured, the full extent of Company's
damages will be impossible to ascertain, monetary damages will not be an
adequate remedy for Company, and Company will be entitled to enforce this
Agreement to prevent a breach or threatened breach of the Agreement by
temporary, preliminary or permanent injunction or other equitable relief without
the necessity of proving actual damage and without the necessity of posting bond
or security, which Executive expressly waives. Executive also agrees that
Company may, in addition to injunctive relief, seek monetary damages for any
breach of the provisions contained in this Agreement in addition to equitable
relief and that the granting of equitable relief shall not preclude Company from
recovering monetary damages.
10.2 Modification. Company and Executive represent that in entering into this
Agreement it is their intent to enter into an agreement that contains reasonable
employment and post-employment restrictions and that such restrictions be
enforceable under law. In the event that any court or other enforcement
authority determines that any provision of this Agreement is overbroad or
unenforceable by reason of the geographic scope, scope of prohibited activities,
time frame, or any other reason, the parties authorize such court or other
enforcement authority to modify the scope of the restriction so that it is
enforceable to the greatest extent permissible.
10.3 Severability. If any provision of the Agreement is held to be invalid,
illegal or unenforceable for any reason, the validity, legality and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
10.4 Notification of New Employer. In the event that Executive leaves the employ
of the Company for any reason, Executive agrees to inform any subsequent
employer of his rights and obligations under this Agreement. Executive further
hereby authorizes the Company to notify his new employer about Executive's
rights and obligations under this Agreement, including by delivering a copy of
this Agreement, and any written modifications thereto, to any subsequent
employer.
11. GENERAL TERMS.
11.1 No Prior Agreements. Executive hereby represents and warrants to the
Company that the execution of this Agreement by Executive and his/her employment
by the Company and the performance of his/her duties hereunder will not violate
or be a breach of any agreement with or obligation to a former employer, client
or any other person or entity, and Executive agrees to indemnify the Company for
any costs and expenses arising out of a claim by any such third party has
against the Company based upon or arising out of any non-competition agreement
or other restrictive covenant, invention or confidentiality agreement between
Executive and such third party which was in existence as of the date of this
Agreement and which Executive is alleged to be in violation of.
11.2 Indemnification; Insurance Against Liability. Executive will be entitled to
such prevailing rights and entitlements to indemnification, defense of claims
and insurance against liability as are generally provided to executives of the
Company, consistent with Company bylaws, insurance policies and contracts, and
applicable law.
11.3 Governing Law; Interpretation. This Agreement will be governed by the
substantive laws of the State of Florida, without regard to the principles of
conflicts of laws. This Agreement will be construed as a whole, according to its
fair meaning, and not in favor of or against any party, regardless of which
party may have initially drafted certain provisions set forth herein.
11.4 Choice of Law and Forum: This Agreement shall be construed according to the
laws of the United States of America and the State of Florida, without regard to
its conflict of laws provisions. Executive hereby expressly consent to the
personal jurisdiction of the state and federal courts for Broward County,
Florida in any lawsuit filed there against the Executive by the Company arising
from or related to this Agreement, including any claims for infringement of the
Company's Confidential Information, Inventions or Works for Hire or any update
thereto. Executive agrees that if Executive is not a resident of the State of
Florida, USA, at the time of such action, then Executive hereby irrevocably
appoints the Secretary of the State of Florida, as agent for the purpose of
accepting service of process in Florida and the United States. Executive waives
trial by jury in any action, proceeding, claim, or counterclaim brought by any
party in connection with any matter arising out of or in any way connected with
this Agreement, the relationship of Executive to the Company and /or any claim
of injury or damage arising in any way between and among the Company and
Executive. Provided, however, that Executive agrees that nothing in this Section
shall prohibit the Company from initiating legal action in any court which has
personal and subject matter jurisdiction over me in the event that it is
necessary for the Company to pursue equitable relief against me for a breach of
this Agreement.
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11.5 Assignment. This Agreement is personal to Executive and he may not assign
it without prior written consent of the Company. The Company may, without
Executive's consent, assign the Agreement to any successor entity, including the
Restrictive Covenants of Section 9.
11.6 Notices. Any notice required or permitted hereunder will be in writing and
will be deemed to have been duly given if delivered by hand or if sent by
certified mail, postage and certification prepaid, to Executive at his residence
(as noted in the Company's records), or to the Company address, or to such other
address or addresses as either party may have furnished to the other in writing.
11.7 Entire Agreement; Amendments. This Agreement and any other exhibits and
attachments hereto constitutes the final and complete expression of all of the
terms of the understanding and agreement between the parties hereto with respect
to the subject matter hereof, and this Agreement replaces and supersedes any and
all prior or contemporaneous negotiations, communications, understandings,
obligations, commitments, agreements or contracts, whether written or oral,
between the parties respecting the subject matter hereof. This Agreement may not
be modified, amended, altered or supplemented except by means of the execution
and delivery of a written instrument mutually executed by both parties. No
action or omission by the Company shall be deemed to be a waiver of any of its
rights under this Agreement unless such waiver is set forth in writing and
identified as a waiver. Any waiver by the Company of any rights under this
Agreement shall not be deemed to be a waiver of any other right.
11.8 Counterparts. This Agreement may be executed simultaneously in two (2)
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
11.9 Survival. The provisions of the various sections of this Agreement which by
their terms call for performance subsequent to the expiration or termination of
this Agreement or the Employment Period shall survive such expiration or
termination.
11.10 Withholdings. The parties agree that all payments to be made to the
Executive by the Company pursuant to this Agreement shall be subject to all
applicable withholdings.
11.11 Headings. The Section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.12 No CONTRA PROFERENTUM. The parties agree that they have been represented
by counsel during the negotiation and execution of this Agreement, and,
therefore, waive the application of any law, regulation or holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
11.13 Capacity. Each of the parties hereto warrants that they are legally
competent to execute this Agreement and accepts full responsibility therefor.
12. RESOLUTION OF DISPUTES.
Except as provided, herein, and in the event of any claim, cause of
action, dispute or controversy arising under this Agreement or otherwise related
to the parties' employment relationship, the parties shall negotiate in good
faith for the purpose of resolving such dispute. In the event that the parties
cannot resolve the claim, cause of action, dispute or controversy informally
within fifteen (15) days, then such claim, cause of action, dispute or
controversy arising out of or relating to this Agreement or the breach,
termination, enforcement, interpretation or validity thereof, including the
determination of the scope or applicability of this agreement to arbitrate,
shall be determined by a mandatory arbitration in Miami, Florida before one (1)
arbitrator. The arbitration shall be administered by JAMS pursuant to its
Comprehensive Arbitration Rules and Procedures (Streamlined Arbitration Rules
and Procedures). Judgment on the Award may be entered in any court having
jurisdiction. This clause shall not preclude parties from seeking provisional
remedies in aid of arbitration from a court of appropriate jurisdiction. Each
party shall bear its own costs in the arbitration and shall share equally the
costs of the arbitration itself. Notwithstanding the foregoing, and without
undermining the agreement to arbitrate on any other claim, cause of action,
dispute or controversy, the Company shall at all times have and retain the
exclusive and unilateral right to seek immediate temporary and preliminary
injunctive relief in a court of law in the event of a violation or alleged
violation by the Executive of Sections 7, 8, or 9 of this Agreement. In the
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event such judicial relief is granted, such relief shall remain binding on the
parties pending the outcome of arbitration. THE COMPANY AND EXECUTIVE
ACKNOWLEDGE THAT EACH HAD THE OPPORTUNITY TO CONSULT WITH LEGAL AND FINANCIAL
COUNSEL CONCERNING THE RIGHTS AND OBLIGATIONS ARISING UNDER THIS AGREEMENT, THAT
EACH HAS READ AND UNDERSTANDS THIS AGREEMENT, AND THAT EACH ENTERS INTO IT
WILLINGLY.
This Agreement is duly executed as of the day and year of the last signature
below.
CHINA DIRECT TRADING CORP. XXXXXX XXXXXX
By:___________________________________ Sign:_________________________________
Title:________________________________
Date:_________________________________ Date:_________________________________
EXHIBIT ONE: INVENTIONS OF EXECUTIVE: NONE
