AutoChina International Limited Executive Employment Agreement
Exhibit
4.6
AutoChina International Limited
This
EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement"), entered into as of
May 9, 2015, by and between AutoChina International Limited, a
company organized under the laws of the Cayman Islands (the
"Company") and Xxx
Xxxx (the "Executive") (collectively, the
"Parties").
RECITALS
A. The
Company desires to employ the Executive as its Senior Vice
President and to assure itself of the services of the Executive for
the Period of Employment (as defined below).
B. The
Executive desires to be employed by the Company as its Senior Vice
President for the Period of Employment and upon the terms and
conditions of this Agreement.
AGREEMENT
ACCORDINGLY, the
Parties agree as follows:
1. Term
of Employment. The Company shall employ the Executive to
render services to the Company in the position and with the duties
and responsibilities described in Section 2 for a period of
three (3) years starting from the date of this Agreement (the
"Period of
Employment"), unless the Period of Employment is terminated
sooner in accordance with Sections 4 or 5 below or extended
upon mutual agreement of the Parties.
2. Position,
Duties, Responsibilities.
2.1 Position.
The Executive shall render services to
the Company in the position of Senior Vice President and shall
perform all services appropriate to that position as well as such
other services as may reasonably be assigned by the Company,
including serving as the Senior Vice President of
Hebei Chuanglian Finance Leasing Co.,
Ltd.
(河北创联融资租赁有限公司),
an indirectly wholly-owned subsidiary of the Company established in
the People's Republic of China (the "PRC") ("Chuanglian")
and any other direct or indirect subsidiary of the Company. The
Executive's principal place of employment shall be at any location
decided by the board of directors of the Company. The Executive
shall devote his best efforts and full-time attention to the
performance of his duties. The Executive shall report to
the board of directors of the
Company.
2.2 Other
Activities. Except upon the
prior written consent of the board of directors of the Company, the
Executive shall not (i) accept any other employment (except
for academic employment, position in industrial or professional
associations, non-executive director of other companies which do
not compete with the Company's business provided that such other
companies purchase director liability insurance), (ii) engage,
invest or assist, directly or indirectly, in any other business
activity (whether or not pursued for pecuniary advantage)
that is or may be in conflict with, or that might place the
Executive in a conflicting position to that of the Company or (iii)
act as the legal representative or an executive officer of another
company (excluding any affiliates of the Company) within or outside
the PRC.
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2.3 Execution
of Chuanglian Employment Agreement. The Executive shall upon request of the Company
execute an employment agreement with Chuanglian or any other direct
or indirect subsidiary of the Company (in each case, a
"Subsidiary Employment
Agreement") in accordance with
PRC laws and regulations, in the form substantially identical to
this Agreement except for adjustments or alterations required to
comply with the relevant laws and regulations of the
PRC.
3. Compensation
and Holiday. In consideration of the services to be rendered
under this Agreement, the Executive shall be entitled to the
following:
3.1 Base
Salary. The Company and the
Executive shall agree to a "Base
Salary," subject to adjustment
in accordance with Section 3.2 below. The Base Salary shall be paid
in accordance with the Company's regularly established payroll
practices.
3.2 Salary
Adjustment. The Executive's
Base Salary will be reviewed from time to time in accordance with
the established procedures of the Company for adjusting salaries
for similarly situated employees and may be adjusted in the sole
discretion of the Company.
3.3 Benefits.
The Executive shall be eligible to participate in the benefits made
generally available by the Company to similarly-situated
executives, in accordance with the benefit plans established by the
Company (including the Company’s Equity Incentive Plan), and
as may be amended from time to time in the Company's sole
discretion.
3.4 Bonus.
The Executive shall not be entitled to any bonus unless otherwise
approved by the board of directors of the Company in its sole
discretion.
3.5 Holidays.
The Executive shall be entitled, in addition to applicable
statutory public holidays, to take (14) working days as paid
holiday in each full calendar year. If the Executive's employment
commences or terminates part way through a calendar year, his
entitlement to holidays will be assessed on a pro-rata basis in
accordance with the Company's holiday policy, as it may change from
time to time.
3.6 Insurance.
The Company shall purchase life insurance and medical insurance for
the Executive pursuant to applicable standards.
3.7 Others.
The salary and welfare provided respectively in the Subsidiary
Employment Agreements and this Agreement shall not be cumulative.
If there is any discrepancy between the above provisions in Article
3 herein and the salary and other welfare provided in the
Subsidiary Employment Agreements, the Executive shall, in addition
to the salary and welfare provided in the Subsidiary Employment
Agreements, be entitled to the additional amount of the salary and
welfare (if any) provided in this Agreement only to the extent it
exceeds those provided in the Subsidiary Employment
Agreements.
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4. Termination
By Company.
4.1 Termination for
Cause. For purposes of this Agreement, "For Cause" shall mean the
occurrence of any of the following, subject only to any statutory
requirement of any applicable law: (i) the failure of the Executive
to properly carry out his duties after notice by the Company of the
failure to do so and a reasonable opportunity for the Executive to
correct the same within a reasonable period specified by the
Company; (ii) any breach by the Executive of one or more provisions
of any written agreement with, or written policies of, the Company
or his fiduciary duties to the Company likely to cause material
harm to the Company and its affiliates, at the Company's reasonable
discretion, or (iii) any theft, fraud, dishonesty or serious
misconduct by the Executive involving his duties or the property,
business, reputation or affairs of the Company and its affiliates.
The Company may terminate the Executive's employment For Cause at
any time, without any advance notice or payment in lieu of notice.
The Company shall pay to the Executive all compensation prescribed
under Section 3 hereof to which the Executive is entitled up
through the date of termination, subject to any other rights or
remedies of the Company under law, and thereafter all obligations
of the Company under this Agreement shall cease.
4.2 By
Death. The Executive's employment shall terminate
automatically upon the Executive's death. The Company shall pay to
the Executive's beneficiaries or estate, as appropriate, any
compensation then due and owing under Section 3 hereof to which the
Executive is entitled up through the date of termination, subject
to any other rights or remedies of the Company under law, and
thereafter all obligations of the Company under this Agreement
shall cease. Nothing in this section shall affect any entitlement
of the Executive's heirs or devisees to the benefits of any life
insurance plan or other applicable benefits, if any. If the
Executive dies during the course of or in connection with the
performance of his duty, subject to applicable laws, the Company
shall pay to the Executive's beneficiaries or estate, as
appropriate, a special compensation not exceeding the annual Base
Salary as provided in Article 3.1 above, as decided by the board of
directors of the Company.
4.3 By Disability.
If the Executive becomes eligible for the Company's long-term
disability benefits or if, in the sole opinion of the Company, the
Executive is unable to carry out the responsibilities and functions
of the position held by the Executive by reason of any physical or
mental impairment for more than ninety (90) consecutive days or
more than one hundred twenty (120) days in any twelve-month period,
then, to the extent permitted by law, the Company may terminate the
Executive's employment. The Company shall pay to the Executive all
compensation prescribed under Section 3 hereof to which the
Executive is entitled up through the date of termination, and
thereafter all obligations of the Company under this Agreement
shall cease. Nothing in this section shall affect the Executive's
rights under any disability plan in which the Executive is a
participant, if any.
4.4 Other
Termination by Company. In addition to Sections 4.1 through
4.3, the Company may at any time terminate the employment of the
Executive without cause by giving one (1) month written notice to
the Executive, in which case the Executive will be eligible to
receive an amount equal to three (3) months of the then-current
Base Salary of the Executive payable in the form of salary
continuation. Such severance shall be reduced by any remuneration
paid to the Executive because of the Executive's employment or
self-employment during the severance period, and the Executive
shall promptly report all such remuneration to the Company in
writing. The Executive's eligibility for severance is conditioned
on the Executive having first signed a Termination Certificate in
the form attached as Exhibit A. The Executive shall
not be entitled to any severance payments if the Executive's
employment is terminated For Cause, by death or by disability (as
provided above) or if the Executive's employment is terminated by
the Executive for any reason other than Good Reason, as defined
below.
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5. Termination
By Executive.
5.1 Termination
by Executive other than for Good Reason. The Executive may
terminate employment with the Company at any time for any reason or
no reason at all, upon three (3) months' advance written notice.
During such notice period the Executive shall continue to
diligently perform all of the Executive's duties hereunder. The
Company shall have the option, in its sole discretion, to make the
Executive's termination effective at any time prior to the end of
such notice period as long as the Company pays the Executive all
compensation under Section 3 hereof to which the Executive is
entitled up through the last day of the three (3) months' notice
period. Thereafter all obligations of the Company shall cease.
Unless the Executive terminates his employment for Good Reason, as
provided in Section 5.2, no severance or other separation benefits
shall be paid to the Executive.
5.2 Termination
for Good Reason
After Change in Control. The Executive's termination shall
be for Good Reason (as defined below) if the Executive provides
written notice to the Company of the Good Reason within three (3)
months of the event constituting Good Reason and provides the
Company with a period of twenty (20) days to cure the Good Reason
and the Company fails to cure the Good Reason within that period.
For purposes of this Agreement, "Good Reason" shall mean a
material reduction in the Executive's Base Salary, except for
reductions that are comparable to reductions generally applicable
to similarly situated executives of the Company if (i) such
reduction is effected by the Company without the consent of the
Executive and (ii)
such event occurs within three (3) months after a Change in Control
(as hereinafter defined). For purposes of this Agreement, a
"Change in Control"
of the Company shall be deemed to have occurred when: (i) the
shareholders of the Company approve a merger or consolidation of
the Company with any other corporation, other than a merger or
consolidation which would result in the shareholders of the Company
immediately prior thereto holding fifty percent (50%) or more of
the outstanding voting securities of the Company or the surviving
entity immediately after such merger or consolidation; or
(ii) the shareholders of the Company
approve either a plan of liquidation or dissolution of the Company
or an agreement for the sale, lease, exchange or other transfer or
disposition by the Company of fifty-percent (50%) or more of the
Company's assets. If the Executive terminates his employment
for Good Reason, the Executive will be eligible to receive an
amount equal to one (1) month of the Executive's then-current Base
Salary payable in the form of salary continuation. Thereafter all
obligations of the Company or its successor under this Agreement
shall cease. Any severance shall be reduced by any remuneration
paid to the Executive because of the Executive's employment or
self-employment during the severance period, and the Executive
shall promptly report all such remuneration to the Company or its
successor in writing. The Executive's eligibility for severance is
conditioned on the Executive having first signed a Termination
Certificate in the form attached as Exhibit A.
6. Termination
Obligations.
The
Executive agrees that on or before termination of employment, he
will promptly return to the Company all documents and materials of
any nature pertaining to his work with the Company, including all
originals and copies of all or any part of any Proprietary
Information or Inventions (as defined below) along with any and all
equipment and other tangible and intangible property of the
Company. The Executive agrees not to
retain any documents or materials or copies thereof containing any
Proprietary Information or Inventions.
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The
Executive further agrees that: (i) all representations,
warranties, and obligations under Articles 6, 7, 8, 10, 11, 12,
14.1, 14.2 and 14.3 contained in this Agreement shall survive the
termination of the Period of Employment; (ii) the Executive's
representations, warranties and obligations under Articles 6, 7, 8,
10, 11, 12, 14.1, 14.2 and 14.3 shall also survive the expiration
of this Agreement; and (iii) following any termination of the
Period of Employment, the Executive shall fully cooperate with the
Company in all matters relating to his continuing obligations under
this Agreement, including but not limited to the winding up of
pending work on behalf of the Company, the orderly transfer of work
to the other employees of the Company, and the defense of any
action brought by any third party against the Company that relates
in any way to the Executive's acts or omissions while employed by
the Company. The Executive also agrees to sign and deliver the
Termination Certificate attached hereto as Exhibit A prior to his
termination of employment with the Company.
7. Post-Termination
Activity.
7.1 No
Use of Proprietary Information. The Executive acknowledges
that the pursuit of the activities forbidden by this subsection
would necessarily involve the use or disclosure of Proprietary
Information in breach of this Agreement, but that proof of such a
breach would be extremely difficult. To forestall such disclosure,
use, and breach, and in consideration of the employment under this
Agreement, the Executive also agrees that while employed by the
Company, and for a period of one (1) year after termination of the
Executive's employment, the Executive shall not, directly or
indirectly:
(i) divert
or attempt to divert from the Company or any Affiliate
("Affiliate" shall
mean any person or entity that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under
common control with such entity). For the purposes of this
definition "control" means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, whether
through the ownership of voting securities, by contract or
otherwise, and includes (x) ownership directly or indirectly of 50%
or more of the shares in issue or other equity interests of such
person, (y) possession directly or indirectly of 50% or more of the
voting power of such person or (z) the power directly or indirectly
to appoint a majority of the members of the board of directors or
similar governing body of such person, and the terms "controlling" and "controlled" have meanings
correlative to the foregoing) any business of any kind in which it
is engaged, including, without limitation, soliciting business from
or performing services for, any persons, company or other entity
which at any time during the Executive's employment by the Company
is a client, supplier, or customer of the Company or prospective
client, supplier, or customer of the Company if such business or
services are of the same general character as those engaged in or
performed by the Company;
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(ii) solicit
or otherwise induce any person to terminate his employment or
consulting relationship with the Company or any Affiliate;
and
(iii) engage,
invest or assist in any business activity that directly or
indirectly competes with any business plan of the Company or any
Affiliate.
In
addition, because the Executive acknowledges the difficulty of
establishing when any intellectual property, invention, or
proprietary information is first conceived or developed by the
Executive, or whether it results from access to Proprietary
Information or the Company equipment, supplies, facilities, or
data, the Executive agrees that any intellectual property,
invention, or proprietary information shall be reported to the
Company and, unless proven otherwise to the reasonable satisfaction
of the Company, shall be presumed to be an Invention for the
purpose of this Agreement and shall be subject to all terms and
conditions hereof, if reduced to practice by the Executive or with
the aid of the Executive within one (1) year after termination of
the Period of Employment.
7.2 No
Competition. Notwithstanding Section 7.1 above, while
employed by the Company and for a period equal to the greater of
one (1) year after the termination of the Executive's employment
with the Company for any reason whatsoever, the Executive shall
not, directly or indirectly, as an executive, employer, employee,
consultant, agent, principal, partner, manager, stockholder,
officer, director, or in any other individual or representative
capacity, engage or participate in any business within the PRC
and/or Hong Kong that is competitive with the business of the
Company or any Affiliate. Notwithstanding the foregoing, the
Executive may own less than one percent (1%) of any class of stock
or security of any corporation listed on an internationally
recognized securities exchange which competes with the
Company.
7.3 Enforceability.
The covenants of this Article 7 are several and separate, and the
unenforceability of any specific covenant shall not affect the
provisions of any other covenant. If any provision of this
Article 7 relating to the time period or geographic area of
the restrictive covenants shall be declared by a court of competent
jurisdiction to exceed the maximum time period or geographic area,
as applicable, that such court deems reasonable and enforceable,
then this Agreement shall automatically be considered to have been
amended and revised to reflect the maximum time period or
geographic area that such court deems enforceable.
7.4 Independent
Covenants. All of the covenants in this Article 7 shall
be construed as an agreement independent of any other provision in
this Agreement, and the existence of any claim or cause of action
of the Executive against the Company or any of its Affiliates,
whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of such
covenants.
8. Proprietary
Information.
The
Executive agrees during his employment with the Company and within
three (3) years thereafter, to hold in strictest confidence and
trust, and not to use or disclose to any person, firm or
corporation any Proprietary Information without the prior written
consent of the Company, except as necessary in carrying out his
duties as an employee of the Company for the benefit of the
Company. "Proprietary
Information" means any information of a proprietary,
confidential or secret nature that may be disclosed to the
Executive that relates to the business of the Company or of any
parent, subsidiary, Affiliate, customer or supplier of the Company
or any other party with whom the Company agrees to hold information
of such party in confidence ("Relevant Parties"). Such
Proprietary Information includes, but is not limited to, Inventions
(as defined below), research, product plans, products, services,
business strategies, personnel information, customer lists,
customers, markets, technical information, forecasts, marketing,
finances or other business information of the Company and its
Affiliates. This information shall remain confidential whether it
was disclosed to the Executive either directly or indirectly in
writing, orally or by drawings or observation. The Executive
understands that Proprietary Information does not include any of
the foregoing items which has become publicly known and made
generally available through no wrongful act of the Executive or
others who were under confidentiality obligations as to the items
involved.
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9. Former
Employer Information.
The
Executive agrees that he will not, during his employment with the
Company, improperly use or disclose any proprietary information or
trade secrets, or bring onto the premises of the Company any
unpublished document or proprietary information belonging to any
former or concurrent employer or other person or entity (excluding
Chuanglian and any other direct or indirect subsidiary of the
Company).
10. Third
Party Information.
The
Executive recognizes that the Company has received and in the
future will receive confidential or proprietary information from
third parties. The Executive agrees to hold all such confidential
or proprietary information in the strictest confidence and trust,
and not to disclose it to any person, firm or corporation or to use
it except as necessary in carrying out his work for the Company
consistent with the Company's agreement with such third
party.
11. No
Conflict.
The
Executive represents and warrants that the Executive's execution of
this Agreement, his employment with the Company, and the
performance of his proposed duties under this Agreement shall not
violate any obligations he may have to any former employer or other
party, including any obligations with respect to proprietary or
confidential information or intellectual property rights of such
party.
12. Inventions.
12.1 Inventions
Retained and Licensed. The Executive has attached, as
Exhibit C, a list
describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by
the Executive prior to the Executive's employment with the Company
("Prior
Inventions"), which belong to the Executive, and which
relate to the Company's actual and/or proposed business, products
or research and development. If, in the course of his employment
with the Company, the Executive incorporates into a Company
product, process or machine a Prior Invention owned by the
Executive or in which the Executive has an interest, the Company is
hereby granted and shall have a non-exclusive, royalty-free,
irrevocable, perpetual, worldwide license to make, have made,
modify, use and sell such Prior Invention as part of or in
connection with such product, process or machine.
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12.2 Assignment
of Inventions. The Executive agrees that he will promptly
make full written disclosure to the Company, will hold in trust for
the sole right and benefit of the Company, and hereby irrevocably
assign to the Company, or its designee, all the Executive's right,
title, and interest in and to any and all inventions, original
works of authorship, developments, concepts, improvements, designs,
drawings, discoveries, ideas, formulas, processes, compositions of
matter, software, databases, mask works, computer programs
(including all source codes) and related documentation, algorithms,
engineering and reverse engineering, technology, hardware
configuration information, logos, trade names, trademarks, patents,
patent applications, copyrights, trade secrets or know-how, which
the Executive may solely or jointly conceive or develop or reduce
to practice, or cause to be conceived or developed or reduced to
practice ("Inventions"), while the
Executive is employed by the Company. The Executive further
acknowledges that all original works of authorship which are made
by the Executive (solely or jointly with others) within the scope
of and during his employment with the Company and which are
protectible by copyright are "works made for hire," as that
term is defined in the United States Copyright Act and that the
Company will be considered the author and owner of such works. The
Executive understands and agrees that the decision whether or not
to commercialize or market any Invention developed by the Executive
solely or jointly with others is within the Company's sole
discretion and for the Company's sole benefit and that no royalty
will be due to the Executive as a result of the Company's efforts
to commercialize or market any such Invention.
12.3 Waiver
of Moral Rights. To the utmost extent legally permitted, the
Executive also hereby forever waives and agrees never to assert any
and all Moral Rights (as defined below) he may have in or with
respect to any Invention, even after termination of his work on
behalf of the Company. "Moral Rights"
mean any rights to claim authorship of an Invention 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."
12.4 Maintenance
of Records. The Executive agrees to keep and maintain
adequate and current written records of all Inventions made by the
Executive (solely or jointly with others) during the Executive's
employment with the Company. The records will be in the form of
notes, sketches, drawings, and any other format that may be
specified by the Company. The records will be provided to, and
remain the sole property of, the Company at all times.
12.5 Patent
and Copyright Registrations. The Executive agrees to assist
the Company, or its designee, at the Company's expense, in every
proper way, to secure the Company's rights in the Inventions and
any copyrights, patents, mask work rights, trade secret rights or
other intellectual property rights relating thereto in any and all
countries. The Executive will disclose to the Company all pertinent
information and data which the Company deems necessary for the
execution of all applications, specifications, oaths, assignments
and execute all instruments necessary to apply for and obtain such
rights and in order to assign and convey to the Company, its
successors, assigns, and nominees, the sole and exclusive right,
title and interest in and to such Inventions, and any copyrights,
patents, mask work rights, or other intellectual property rights
relating thereto. The Executive further agrees that the Executive's
obligation to execute or cause to be executed, when it is in the
Executive power to do so, any such instrument or papers shall
continue after the termination of this Agreement. If the Company is
unable, because of the Executive's mental or physical incapacity or
for any other reason, to secure his signature to apply for or to
pursue any application for any patents or copyright registrations
covering the Inventions assigned to the Company as above, then the
Executive hereby irrevocably designates and appoints the Company
and its duly authorized officers and agents as his agent and
attorney in fact, to act for and in the Executive's behalf and
stead to execute and file any such applications and to do all other
lawfully permitted acts to further the prosecution and issuance of
letters, patent or copyright registrations thereon with the same
legal force and effect as if executed by the
Executive.
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13. Alternative
Dispute Resolution.
The
Company and Executive mutually agree that any controversy or claim
arising out of or relating to this Agreement or the breach thereof,
or any other dispute between the parties, shall be submitted to
mediation before a mutually agreeable mediator, which cost is to be
borne equally by the parties hereto. In the event the Parties fail
to agree on a mediator, or mediation is unsuccessful in resolving
the claim or controversy within one (1) month after the
commencement of mediation, such claim or controversy shall be
resolved by arbitration in Hong Kong under the auspices of the Hong
Kong International Arbitration Centre.
14. Miscellaneous.
14.1 Continuing
Obligations. The obligations in
this Agreement will continue in the event that the Executive is
hired, renders services to or for the benefit of or is otherwise
retained at any time by any present or future Affiliates of the
Company. Any reference to the Company in this Agreement will
include such Affiliates. Upon the expiration or termination for any
reason whatsoever of this Agreement, the Executive shall forthwith
resign from any employment of office with an Affiliate of the
Company unless the board of directors of the Company requests
otherwise.
14.2 Notification.
The Executive hereby authorizes the Company to notify his actual or
future employers of the terms of this Agreement and his
responsibilities hereunder.
14.3 Name and
Likeness Rights. The Executive
hereby authorizes the Company to use, reuse, and to grant others
the right to use and reuse, his name, photograph, likeness
(including caricature), voice, and biographical information, and
any reproduction or simulation thereof, in any media now known or
hereafter developed (including but not limited to film, video and
digital or other electronic media), both during and after his
employment, for whatever purposes the Company deems
necessary.
14.4 Injunctive
Relief. The Executive understands that in the event of a
breach or threatened breach of this Agreement by him, the Company
may suffer irreparable harm and will therefore be entitled to
injunctive relief to enforce this Agreement.
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14.5 Legal
Fees. In any dispute arising
under or in connection with this Agreement, the prevailing party
shall be entitled to recover reasonable attorney's
fees.
14.6 Entire
Agreement. This Agreement,
including the exhibits attached hereto, is intended to be the
final, complete, and exclusive statement regarding their subject
matter, except for other agreements specifically referenced herein.
Unless otherwise specifically provided for herein, this Agreement
supersedes all other prior and contemporaneous agreements and
statements pertaining to this subject matter, and may not be
contradicted by evidence of any prior or contemporaneous statements
or agreements. To the extent that the practices, policies, or
procedures of the Company, now or in the future, apply to the
Executive and are inconsistent with the terms of this Agreement,
the provisions of this Agreement shall control.
14.7 Amendments,
Renewals and Waivers. This
Agreement may not be modified, amended, renewed or terminated
except by an instrument in writing, signed by the Executive and by
a duly authorized representative of the Company other than the
Executive. No failure to exercise and no delay in exercising any
right, remedy, or power under this Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under this Agreement preclude any other or
further exercise thereof, or the exercise of any other right,
remedy, or power provided herein or by law or in
equity.
14.8 Assignment;
Successors and Assigns. The
Executive agrees that he will not assign, sell, transfer, delegate
or otherwise dispose of, whether voluntarily or involuntarily, or
by operation of law, any rights or obligations under this
Agreement, nor shall the Executive's rights be subject to
encumbrance or the claims of creditors. Any purported assignment,
transfer, or delegation shall be null and void. Nothing in this
Agreement shall prevent the consolidation of the Company with, or
its merger into, any other corporation, or the sale by the Company
of all or substantially all of its properties or assets, or the
assignment by the Company of this Agreement and the performance of
its obligations hereunder to any successor in interest. In the
event of a change in ownership or control of the Company, the terms
of this Agreement will remain in effect and shall be binding upon
any successor in interest. Notwithstanding and subject to the
foregoing, this Agreement shall be binding upon and shall inure to
the benefit of the parties and their respective heirs, legal
representatives, successors, and permitted assigns, and shall not
benefit any person or entity other than those enumerated
above.
14.9 Notices.
All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been duly given or
made as of the date delivered or mailed if delivered personally or
by nationally recognized courier or mailed by registered mail
(postage prepaid, return receipt requested) or by telecopy to the
parties at the following addresses (or at such other address for a
party as shall be specified by like notice, except that notices of
changes of address shall be effective upon receipt):
To:
Company
Contact
Address: AutoChina International Limited
27F
Kaiyuan Center
Attention: Senior
Vice President
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To:
Executive
Contact
Address: AutoChina International Limited
27F
Kaiyuan Center
Xx.0
Xxxx Xxxx Xxxxxx, Xxxxxxxxxxxx Xxxx
Xxxxx
Xxxxxxxx 000000, People’s Republic of China
Attention: Xxx
Xxxx
14.10 [Reserved.]
14.11 Waiver
of Immunity. To the
extent that any Party (including its assignees of any such rights
or obligations hereunder) may be entitled, in any jurisdiction, to
claim for itself (or himself or herself) or its revenues or assets
or properties, immunity from service of process, suit, the
jurisdiction of any court, an interlocutory order or injunction or
the enforcement of the same against its property in such court,
attachment prior to judgment, attachment in aid of execution of an
arbitral award or judgment (interlocutory or final) or any other
legal process, and to the extent that, in any such jurisdiction
there may be attributed such immunity (whether claimed or not),
such Party hereby irrevocably waive such immunity.
14.12 Severability;
Enforcement. If any provision
of this Agreement, or its application to any person, place, or
circumstance, is held by an arbitrator or a court of competent
jurisdiction to be invalid, unenforceable, or void, such provision
shall be enforced (by blue-penciling or otherwise) to the maximum
extent permissible under applicable law, and the remainder of this
Agreement and such provision as applied to other persons, places,
and circumstances shall remain in full force and
effect.
14.13 Governing
Law. This Agreement shall in all respects be construed and
enforced in accordance with and governed by the laws of Hong
Kong.
14.14 Interpretation.
This Agreement shall be construed as a whole, according to its fair
meaning, and not in favor of or against any party. Sections and
section headings contained in this Agreement are for reference
purposes only, and shall not affect in any manner the meaning or
interpretation of this Agreement. Whenever the context requires,
references to the singular shall include the plural and the plural
the singular. References to one gender include both
genders.
14.15 Obligations
Survive Termination of Employment. The Executive agrees that
any and all of the Executive's obligations under this Agreement
capable of execution after the termination of the Executive
employment, including but not limited to those contained in
exhibits attached hereto, shall survive the termination of
employment and the termination of this Agreement.
14.16 Counterparts.
This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original of this Agreement, but all of
which together shall constitute one and the same
instrument.
11
EXECUTIVE
ACKNOWLEDGEMENT. The Executive acknowledges (i) that he has
consulted with or has had the opportunity to consult with
independent counsel of his own choice concerning this Agreement and
has been advised to do so by the Company, and (ii) that he has read
and understands the Agreement, is fully aware of its legal effect,
and has entered into it freely based on his own judgment. The
Executive hereby agrees that his obligations set forth in Sections
7, 8, and 9 hereof and the definitions of Proprietary Information
and Inventions contained therein shall be equally applicable to
Proprietary Information and Inventions relating to any work
performed by the Executive for the Company prior to the execution
of this Agreement.
The
parties have duly executed this Agreement as of the date first
written above.
EXECUTIVE:
Name:
COMPANY:
AUTOCHINA
INTERNATIONAL LIMITED
By:
Name:
Xxxxx Sha
Title:
Director
12
EXHIBIT A
TERMINATION CERTIFICATE
This is to certify that I have returned all
personal property of AutoChina International Limited (the
"Company")
and the Relevant Parties, including, without limitation, all books,
manuals, records, models, drawings, reports, notes, contracts,
lists, blueprints, and other documents and materials, electronic
data recorded or retrieved by any means, Proprietary Information,
and equipment furnished to or prepared by me in the course of or
incident to my employment with the Company, and that I did not make
or distribute any copies of the foregoing.
I further certify that I have reviewed the
Executive Employment Agreement (the "Agreement")
signed by me and that I have complied with and will continue to
comply with all of its terms, including, without limitation,
(i) the reporting of any Inventions or any improvement,
rights, or claims related to the foregoing, conceived or developed
by me and covered by the Agreement; (ii) the preservation as
confidential of all Proprietary Information pertaining to the
Company and the Relevant Parties; (iii) not participating in any
business competitive with the business of the Company; (iv) not
acting as the legal representative or an executive officer of any
other company within and outside the People’s Republic of
China, and (v) the reporting of any remuneration paid to me due to
any employment or self-employment during the severance period, if
any. This certificate in no way limits my responsibilities or the
Company's rights under the Agreement.
On termination of my employment with the Company,
I will be employed by [name of new employer]
in the [division name]
division and I will be working in
connection with the following projects:
[generally describe the projects]
Date:
Print
Executive's Name
Executive's
Signature
13
EXHIBIT C
LIST OF PRIOR INVENTIONS
AND ORIGINAL WORKS OF AUTHORSHIP
Title Date Identifying
Number or Brief Description
____________
No inventions or improvements
____________
Additional
Sheets Attached
Signature of
Executive:
Printed Name of Executive:
Date:
14
