EMPLOYMENT AGREEMENT
This employment agreement (this
“Agreement”) dated as of June 22, 2010 (the “Effective Date”), is made by and
between Emerald Acquisition Corp., a Cayman Islands corporation (the “Company”)
and Xx. Xxxx Xxxxxxxxx (the “Executive”) (collectively, the
“Parties”).
WHEREAS,
the Company is a reporting company with the Securities and Exchange Commission
and intends to list its shares on a national exchange;
WHEREAS, the Executive will have the
duties and responsibilities as described in Section 1 of the Agreement during
the period when the Executive is the Chief Financial Officer of the Company;
and
WHEREAS, the Parties wish to establish
the terms of the Executive’s employment with the Company;
NOW, THEREFORE, in consideration of the
foregoing, of the mutual promises contained herein and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties, intending to be legally bound, hereby agree as
follows:
1. EMPLOYMENT
AND TERM.
(a) Employment. During
the Employment Term, the Executive shall serve as Chief Financial Officer of the
Company. In this capacity the Executive shall be responsible to lead and manage
all of the operations of the Company that are related to finance and capital
market, including, but is not limited to:
|
|
·
|
Provide
expertise in making financial and development plan/strategy and to advise
the Board of Directors of the Company (the “BOD”) with respect to the
Company’s internal controls and procedures, including disclosure controls
and procedures;
|
|
|
·
|
Assist
the Company and its management in dealing with auditing process and with
the auditing firm including visiting the Company’s location during the
audit process and helping the Company prepare and finalize the audit in a
timely and efficient manner;
|
|
|
·
|
Assemble
the Company’s annual and quarterly financial statements, which include a
balance sheet, statement of operations, statement of stockholders’ equity,
and a statement of cash flows and footnotes for specific periods in order
to conform to generally accepting accounting principles accepting in the
United States of America. Additional, the Executive will
assist management in the preparation of financial statements and work
papers related to annual financial audits and quarterly SEC
filings. SEC filings shall include quarterly 10-Q reports
financial portions of 10-K report, management’s discussion and analysis,
8-K filings, and financial portion of registration
statements;
|
1
|
|
·
|
Work
with the Company’s U.S. legal counsel and auditors to implement, monitor
and oversee the Company’s compliance with the requirements of the
Xxxxxxxx-Xxxxx Act, Securities Act of the 1933, Exchange Act of the 1934,
and the listing rules of any national exchange on which its shares become
listed;
|
|
|
·
|
Assist
management in any communications with the United States Securities and
Exchange Commission;
|
|
|
·
|
Summarize
such adjusting entries as management deems necessary to reflect
non-monetary transactions (e.g., depreciation, capitalization of costs,
loan amortization, intercompany transactions,
etc.);
|
|
|
·
|
Assist
in communications with the BOD including set up of board meetings,
preparation for board meetings and any other board
issues;
|
|
|
·
|
Assist
the Company in performing financial analysis related to investors’
questions;
|
|
|
·
|
With
the Company’s Chief Executive Officer’s authorization, assist the
management in the Company’s stock issuance and transfer related
activities; and
|
|
|
·
|
Any
general accounting and tax management of the Company’s business
operation.
|
(b) During
the Employment Term, the Executive shall report directly to the Chief Executive
Officer and the BOD. The Executive shall lawfully obey the directions of the
Chief Executive Officer and the BOD to whom the Executive reports and shall use
his diligent efforts to promote the interests of the Company and to maintain and
promote the reputation thereof.
(c) During
the Employment Term, the Executive shall use his best efforts to perform his
duties under this Agreement and to accomplish the tasks assigned by the BOD. The
Executive shall strictly comply with national laws and regulations, and rules,
regulations, labor disciplines, work criterion and professional ethical codes
stipulated by the Company, and take good care of the Company’s
properties.
2. EMPLOYMENT
TERM. Except for earlier termination as provided in Section 5,
the Executive’s employment under this Agreement shall be for one (1) years
starting on the Effective Date and ending on June 21, 2011 (the “Initial Term”).
Subject to Section 5, at the end of the Initial Term, this Agreement may be
extended for additional terms by mutual agreement of the parties (“Additional
Term”). The amount of compensation payable to the Executive during
any extension of the Initial Term shall be discussed and agreed upon by both
parties 30 days before the Agreement termination date. The Initial
Term and any Additional Term shall be referred to herein as the “Employment
Term.”
2
3. COMPENSATION.
(a) Base
Salary and Benefits. In consideration of the services to be rendered as provided
in Section 1 and during the term that Executive serves for the Company, the
Company hereby agrees to pay the Executive Sixty Thousand Dollars ($60,000) per
year, payable in equal monthly installments in accordance with the usual
practice of the Company, which includes an annual base salary, insurance, and
the subsidy of urban traffic, phone and other miscellaneous expenses (the “Base
Salary and Benefits”). The Executive’s Base Salary and Benefits shall be subject
to annual review by the BOD. From the second year of the Employment
Term, the BOD may consider and determine certain increase of the Base Salary and
Benefits and to issue certain warrant to the Executive, which will be subject to
the annual assessment of the Executive’s performance and whether the Executive
has implemented his duties excellently in the past fiscal year.
(b) Shares.
In addition to the Base Salary, the Executive shall be granted ordinary shares
of the Company equal to $6,000 (the “Compensation Shares”) payable on the first
day of each quarter beginning November 1, 2010 (the “Share Payable Date”). The
per share price of the Compensation Shares shall be the closing bid price of the
Company’s ordinary shares on the date that is three (3) trading days prior to
the Share Payable Date.
4. BUSINESS
EXPENSES. Upon presentation of appropriate documentation, the
Executive shall be reimbursed for all reasonable and necessary transportation
and lodging expenses incurred in connection with the performance of his duties
hereunder, all in accordance with the Company’s expense reimbursement policy
applicable to senior executives from time to time in effect, including but not
limited to, (i) the requirement to buy economic class plane ticket; and (ii) the
requirement to be accommodated in no better than four stars hotels during
business trips.
5. EARLY
TERMINATION. The Executive’s employment and the Employment
Term shall terminate on the first of the following to occur:
(a) Disability. The
thirtieth (30th) day
following a written notice of termination by the Company to the Executive due to
Disability. For purposes of this Agreement, “Disability” shall mean a
determination by the Company in accordance with applicable law that
due to a physical or mental injury, infirmity or incapacity, the Executive is
unable to perform the essential functions of his job with or without
accommodation for 60 days (whether or not consecutive) during any 12-month
period.
(b) Cause. Immediately
upon written notice of termination by the Company to the Executive for Cause.
“Cause” shall mean, as determined by the BOD (or its designee) (1) conduct by
the Executive in connection with his employment duties or responsibilities that
is fraudulent, unlawful or grossly negligent; (2) the willful misconduct of the
Executive; (3) the willful and continued failure of the Executive to perform the
Executive’s duties with the Company (other than any such failure resulting from
incapacity due to physical or mental illness); (4) the commission by the
Executive of any felony or any crime involving moral turpitude; (5) violation of
any material policy of the Company or any material provision of the Company’s
code of conduct, employee handbook or similar documents; or (6) any material
breach by the Executive of any provision of this Agreement or any other written
agreement entered into by the Executive with the Company.
3
(c) Without
Cause. On the thirtieth (30th) day following written notice by the
Company to the Executive without Cause, other than for Disability of the
Executive. The Company may also terminate this Agreement for cause at
any time in the event of the failure of the Executive to perform duties assigned
by the Company in a correct, timely and expeditious manner or in the event of
material violation by the Executive of any term or condition of this
Agreement.
6. CONSEQUENCES
OF TERMINATION.
(a) Disability. Upon
termination of the Employment Term because of the Executive’s Disability, the
Company shall pay or provide to the Executive (1) any unpaid Base Salary and
Benefits accrued through the date of termination; and (2) reimbursement for any
unreimbursed expenses properly incurred through the date of
termination.
(b) Termination
for Cause. Upon the termination of the Employment Term by the Company for Cause
or by either party in connection with a failure to renew this Agreement, the
Company shall pay to the Executive any reimbursement for any unreimbursed
expenses properly incurred through the date of termination.
(c) Termination
without Cause. Upon the termination of the Employment Term by the
Company without Cause, the Company shall pay to the Executive any reimbursement
for any unreimbursed expenses properly incurred through the date of
termination.
7. NO ASSIGNMENT. This
Agreement is personal to each of the Parties. Except as provided
below, no Party may assign or delegate any rights or obligations hereunder
without first obtaining the written consent of the other Party hereto; provided, however, that the
Company may assign this Agreement to any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business or assets of the Company.
8. NOTICES. For the purpose of
this Agreement, notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given (1) on
the date of delivery if delivered by hand, (2) on the date of transmission, if
delivered by confirmed facsimile, (3) on the first business day following the
date of deposit if delivered by guaranteed overnight delivery service, or (4) on
the fourth business day following the date delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
0000 Xxxxx Xxxxx Xxx
Xxxxxx,
XX 00000
4
If to the Company:
Xx. 00 Xxxxx Xxxxxxxx
Xxxx
Xxxxxxx Xxxx, Xxxxxxxx
265200
People’s Republic of
China
With a copy (which does not constitute
a notice) to:
Xxxxxx & Xxxxxx, LLP
000 Xxxxx 0 Xxxxx, Xxxxx
000
Xxxxxxxxx, Xxx Xxxxxx,
00000
Attention: Xxxxxxxx X. Xxxxxxx,
Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
or to
such other address as either Party may have furnished to the other in writing in
accordance herewith, except that notices of change of address shall be effective
only upon receipt.
9. PROTECTION
OF THE COMPANY'S BUSINESS.
(a) Confidentiality. The
Executive acknowledges that during the course of his employment by the Company
(prior to and during the Employment Term) he has and will occupy a position of
trust and confidence. No information of the Company may be disclosed by the
Executive without prior consent of the BOD regarding disclosure. The
Executive shall hold in a fiduciary capacity for the benefit of the Company and
shall not disclose to others or use, whether directly or indirectly, any
Confidential Information regarding the Company, except (i) as in good faith
deemed necessary by the Executive to perform his duties hereunder, (ii) to
enforce any rights or defend any claims hereunder, provided that such disclosure
is relevant to the enforcement of such rights or defense of such claims and is
only disclosed in the formal proceedings related thereto, (iii) when required to
do so by a court of law, by any governmental agency having supervisory authority
over the business of the Company or by any administrative or legislative body
(including a committee thereof) with jurisdiction to order him to divulge,
disclose or make accessible such information, provided that the Executive
shall give prompt written notice to the Company of such requirement, disclose no
more information than is so required, and cooperate with any attempts by the
Company to obtain a protective order or similar treatment. The
Executive shall take all reasonable steps to safeguard the Confidential
Information and to protect it against disclosure, misuse, espionage, loss and
theft. The Executive understands and agrees that the Executive shall
acquire no rights to any such Confidential Information. “Confidential
Information” shall mean information about the Company, its subsidiaries and
affiliates, and their respective clients and customers that is not disclosed by
the Company and that was learned by the Executive in the course of his
employment by the Company, including, but not limited to, any proprietary
knowledge, trade secrets, data and databases, formulae, sales, financial,
marketing, training and technical information, client, customer, supplier and
vendor lists, competitive strategies, computer programs and all papers, resumes,
and records (including computer records) of the documents containing such
Confidential Information.
5
(b) Non-Competition. Except
authorized by the BOD, during the Employment Term and for the one-year period
following the termination of the Executive’s employment for any reason (the
“Restricted Period”), the Executive shall not, directly or indirectly, without
the prior written consent of the Company, provide employment (including
self-employment), directorship, consultative or other services to any business,
individual, partner, firm, corporation, or other entity that competes with any
business conducted by the Company or any of its subsidiaries or affiliates on
the date of the Executive’s termination of employment or within one year of the
Executive’s termination of employment in the geographic locations where the
Company and its subsidiaries or affiliates engage or propose to engage in such
business (the “Business”). Nothing herein shall prevent the Executive from
having a passive ownership interest of not more than 2% of the outstanding
securities of any entity engaged in the Business whose securities are traded on
a national securities exchange.
(c) Non-Solicitation
of Employees. The Executive recognizes that he possesses and will possess
confidential information about other employees of the Company and its
subsidiaries and affiliates relating to their education, experience, skills,
abilities, compensation and benefits, and inter-personal relationships with
customers of the Company and its subsidiaries and affiliates. The Executive
recognizes that the information he possesses and will possess about these other
employees is not generally known, is of substantial value to the Company and its
subsidiaries and affiliates in developing their business and in securing and
retaining customers, and has been and will be acquired by him because of his
business position with the Company. The Executive agrees that, during the
Restricted Period, he will not, directly or indirectly, (i) solicit or
recruit any employee of the Company or any of its subsidiaries or affiliates (a
“Current Employee”) or any person who was an employee of the Company or any of
its subsidiaries or affiliates during the twelve (12) month period immediately
prior to the date the Executive's employment terminates (a “Former Employee”)
for the purpose of being employed by him or any other entity, or (ii) hire any
Current Employee or Former Employee.
(d) Non-Solicitation
of Customers. The Executive agrees that, during the Restricted
Period, he will not, directly or indirectly, solicit or attempt to solicit (i)
any party who is a customer or client of the Company or its subsidiaries, who
was a customer or client of the Company or its subsidiaries at any time during
the twelve (12) month period immediately prior to the date the Executive's
employment terminates or who is a prospective customer or client that has been
identified and targeted by the Company or its subsidiaries for the purpose of
marketing, selling or providing to any such party any services or products
offered by or available from the Company or its subsidiaries, or (ii) any
supplier or vendor to the Company or any subsidiary to terminate, reduce or
alter negatively its relationship with the Company or any subsidiary or in any
manner interfere with any agreement or contract between the Company or any
subsidiary and such supplier or vendor.
(e) Property. The
Executive acknowledges that all originals and copies of materials, records and
documents generated by him or coming into his possession during his employment
by the Company or its subsidiaries are the sole property of the Company and its
subsidiaries (“Company Property”). During the Employment Term, and at
all times thereafter, the Executive shall not remove, or cause to be removed,
from the premises of the Company or its subsidiaries, copies of any record,
file, memorandum, document, computer related information or equipment, or any
other item relating to the business of the Company or its subsidiaries, except
in furtherance of his duties under this Agreement. When the
Executive’s employment with the Company terminates, or upon request of the
Company at any time, the Executive shall promptly deliver to the Company all
copies of Company Property in his possession or control.
6
(f) Non-Disparagement. Executive
shall not, and shall not induce others to, Disparage the Company or its
subsidiaries or affiliates or their past and present officers, directors,
employees or products. “Disparage” shall mean making comments or statements to
the press, the Company’s or its subsidiaries’ or affiliates’ employees or any
individual or entity with whom the Company or its subsidiaries or affiliates has
a business relationship which would adversely affect in any manner (1) the
business of the Company or its subsidiaries or affiliates (including any
products or business plans or prospects), or (2) the business reputation of the
Company or its subsidiaries or affiliates, or any of their products, or their
past or present officers, directors or employees.
(g) Cooperation. Subject
to the Executive’s other reasonable business commitments, following the
Employment Term, the Executive shall be available to cooperate with the Company
and its outside counsel and provide information with regard to any past,
present, or future legal matters which relate to or arise out of the business
the Executive conducted on behalf of the Company and its subsidiaries and
affiliates, and, upon presentation of appropriate documentation, the Company
shall compensate the Executive for any out-of-pocket expenses reasonably
incurred by the Executive in connection therewith.
(h) Equitable
Relief and Other Remedies. The Executive acknowledges and agrees that
the Company’s remedies at law for a breach or threatened breach of any of the
provisions of this Section 9 would be inadequate and, in recognition of this
fact, the Executive agrees that, in the event of such a breach or threatened or
attempted breach, in addition to any remedies at law, the Company, without
posting any bond, shall be entitled to obtain equitable relief in the form of
specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy which may then be available. In
addition, without limiting the Company’s remedies for any breach of any
restriction on the Executive set forth in this Section 9, except as required by
law, the Executive shall not be entitled to any payments set forth in Section
6(d) hereof if the Executive has breached the covenants applicable to the
Executive contained in this Section 9, the Executive will immediately return to
the Company any such payments previously received under Section 6(d) upon such a
breach, and, in the event of such breach, the Company will have no obligation to
pay any of the amounts that remain payable by the Company under Section
6(d).
(i) Liability. Notwithstanding
the provisions in this Section 9 the Executive shall not be liable for any
mistakes of fact, errors of judgment, for losses sustained by the Company or any
subsidiary or for any acts or omissions of any kind, unless caused by the
negligence or willful or intentional misconduct of the Executive or any person
or entity acting for or on behalf of the Executive.
7
(j) Survival
of Provisions. The obligations contained in this Section 9 shall
survive in accordance with their terms the termination or expiration of the
Executive's employment with the Company and shall be fully enforceable
thereafter.
10. SECTION HEADINGS AND
INTERPRETATION. The section headings used in this Agreement are included
solely for convenience and shall not affect, or be used in connection with, the
interpretation of this Agreement.
11. SEVERABILITY. The
provisions of this Agreement shall be deemed severable and the invalidity of
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
12. COUNTERPARTS. This
Agreement may be executed in three counterparts, each of which shall be deemed
to be an original but all of which together will constitute one and the same
Agreement.
13. GOVERNING LAW. This
Agreement in its interpretation and application and enforcement shall be
governed by the law of the People’s Republic of China.
14. ENTIRE AGREEMENT. This
Agreement contains the entire agreement between the Parties with respect to the
subject matter hereof and supersedes all prior agreements, written or oral, with
respect thereto. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
15. WAIVER AND
AMENDMENT. No provision of this Agreement may be modified,
amended, waived or discharged unless such waiver, modification, amendment or
discharge is agreed to in writing and signed by the Executive and such officer
or director as may be designated by the BOD. No waiver by either Party at any
time of any breach by the other Party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other Party
shall be deemed a waiver or similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time.
16. WITHHOLDING. The Company may
withhold from any and all amounts payable under this Agreement such federal,
state, local and foreign taxes as may be required to be withheld pursuant to any
applicable law or regulation.
17. AUTHORITY AND
NON-CONTRAVENTION. The Executive represents and warrants to
the Company that he has the legal right to enter into this Agreement and to
perform all of the obligations on his part to be performed hereunder in
accordance with its terms and that he is not a party to any agreement or
understanding, written or oral, which could prevent him from entering into this
Agreement or performing all of his obligations hereunder.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
8
IN WITNESS WHEREOF, the
Parties have executed this Agreement as of the date first written
above.
| EMERALD ACQUISITION CORP. | |||
|
|
|
/s/ Zhide Jiang | |
| By: Zhide Jiang | |||
|
|
Title: Chief Executive Officer | ||
| EXECUTIVE | |||
|
|
|
/s/ Xxxx Xxxxxxxxx | |
| By: Xxxx Xxxxxxxxx | |||
9
