EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is entered into as of August 1, 2009 by and between AuraSource,
Inc., a Nevada corporation (the “Company”), and Hongliang Xxxxxx Xxx (the
“Employee”).
RECITALS
WHEREAS,
the Company desires to employ Employee and Employee desires to accept such offer
of employment commencing as of the Effective Date (as defined
below);
WHEREAS,
Employee represents and warrants that he is free to accept such employment offer
and commence employment with the Company as of the Effective Date (as defined
below) without restriction from any employer other than the Company (other than
confidentiality obligations arising either at law or under agreement(s)
heretofore provided to the Company);
WHEREAS,
Employee acknowledges and agrees that if he does not commence employment with
the Company on or prior to the Effective Date in accordance with the terms of
this Agreement, he shall not be entitled to any benefits hereunder.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the Company and Employee hereby agree as follows:
AGREEMENT
1. Term of
Employment.
The term
of Employee’s employment with the Company hereunder (the “Term”) shall commence
on August 1, 2009 (the “Effective Date”) and, unless earlier terminated pursuant
to Section 5 below, shall continue for a period ending on March 31, 2014
(“Employment Period”). Any employment of Employee by
Company following expiration of the initial Term shall be at-will, with no
obligation by either party upon termination of such employment
thereafter.
2. Position and
Duties.
2.1 Position. During
the Term, Employee shall be employed as Chief Executive Officer of the
Company.
2.2 Duties. Subject to the
supervision and control of the Board of Directors of the Company (the “Board”),
Employee shall do and perform all services and acts necessary or advisable to
fulfill the duties and responsibilities of his position including, without
limitation, management of all day-to-day operations of the Company, and all
matters pertaining to the research and development, production, distribution,
sale and marketing of the Company’s products and services and the employment of
the Company’s employees and shall render such services on the terms set forth
herein. In addition, Employee shall have such other Employee and
managerial powers and duties with respect to the Company and its parent,
subsidiaries, affiliates and strategic partners as may reasonably be assigned to
him by the Board or the Chairman. Except for sick leave, paid time
off (as provided in Section 4.3 below), and leaves of absence excused by the
Board or the Chairman, Employee shall, throughout the Term, devote all his
working time, attention, knowledge and skills faithfully and to the best of his
ability, to the duties and responsibilities of his position in furtherance of
the business affairs and activities of the Company and its parent, subsidiaries,
affiliates and strategic partners. Employee shall at all times be
subject to, observe and carry out such rules, regulations, policies, directions,
and restrictions as the Board or the Chairman may from time to time establish
for employees of the Company.
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2.3 Board of
Directors. Employee
shall be a member of the Board as of the Effective Date and the Company will use
its best efforts to cause Employee to continue to be a member of the Board
throughout the Term.
3. Compensation.
3.1 Base
Salary. During the Term,
as compensation for his services hereunder, Employee shall receive a salary at
the annualized rate of Two Hundred Forty Thousand Dollars ($240,000) per year
(“Base Salary”), which shall be paid in accordance with the Company’s normal
payroll practices and procedures (but no less frequently than monthly), less
such deductions or offsets required by applicable law, rule or regulation or
otherwise authorized by Employee. On at least an annual basis, the
Board will review Employee’s performance and may increase, but not decrease,
such Base Salary in its sole discretion.
3.2 Bonus
Compensation.
(a)
Guaranteed
Bonus. During the Term, in addition to the Base Salary, the Employee shall
receive a guaranteed bonus of Forty Thousand Dollars, ($40,000) per year (the
“Guaranteed Bonus”), which shall be paid no less frequently than yearly and
procedures, less such deductions or offsets required by applicable law, rule or
regulation or otherwise authorized by Employee.
(b)
Annual Bonus.
Provided Employee shall be employed by the Company through the applicable Bonus
Date (as defined below) and no notice of termination has been delivered by
either Employee to the Company or by the Company to Employee prior to the
applicable Bonus Date, Employee shall be eligible to receive an incentive bonus
(the “Annual Incentive Bonus”) in an amount and based on the thresholds set
forth on Schedule A less the amount paid as the Guaranteed Bonus. The
Bonus Date shall be March 31 of each year of the Term, as set forth on
Schedule A. The Annual Incentive Bonus for the first year of the Term
shall be prorated based on the number of days the Employee was employed by the
Company during the first year of the Term.
(c)
Discretionary
Bonus. During each year of the Term, Employee shall also be eligible (but
not entitled) to receive a discretionary bonus at the sole discretion of the
Board.
3.3 Stock
Option Grant. Subject to approval of the Board, during
each year of the Term, Employee shall also be eligible to receive additional
option grants commensurate with his position if options are granted generally to
employees of the Company, in any event at the sole discretion of the
Compensation Committee of the Board (or the entire Board, if no Compensation
Committee exists).
3.4 Other
Compensation. The Employee shall receive a car allowance of
$500 per month. The Employee shall receive a home office allowance of $500 per
month.
4. Additional
Benefits
4.1 Employee
Benefits. During the Term, Employee shall be entitled to
receive health insurance benefits provided generally to employees of the Company
and any other employee benefits as may be provided by the Company in its sole
discretion, subject to any eligibility requirements and the other generally
applicable terms of the plans pursuant to which such benefits may be
provided.
4.2 Expenses. During the Term,
the Company shall reimburse Employee for any reasonable and necessary expenses
incurred by him as is standard Company policy.
4.3 Paid Time
Off. During each year
of the Term, Employee shall be entitled to five (5) weeks paid time off per
year, subject to the terms and conditions of the Company’s paid time off
policy.
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4.4 Business,
Travel and Entertainment Expenses. The Company shall promptly reimburse
the Employee for all business, travel and entertainment expenses consistent with
the Company’s Travel and Expense Policy.
4.5 Benefit
Plans. During the Employment Period, the Employee (and his eligible
spouse and dependents) shall be entitled to participate in all the benefit plans
and programs maintained by the Company from time to time for the benefit of its
senior Employees including, without limitation, all medical, hospitalization,
dental, disability, accidental death and dismemberment and travel accident
insurance plans and programs. In addition, during the Employment Period, the
Employee shall be eligible to participate in all pension, retirement, savings
and other employee benefit plans and programs maintained from time to time by
the Company for the benefit of its Employees, other than any annual cash
incentive plan.
5. Termination.
The Employee's employment hereunder may be terminated during the Employment
Period under the following circumstances:
5.1 Death.
The Employee's employment hereunder shall terminate upon his death.
5.2 Disability.
If, as a result of the Employee's incapacity due to physical or mental illness
as determined by a physician selected by the Employee, and reasonably acceptable
to the Company, (i) the Employee shall have been substantially unable to perform
his duties hereunder for two consecutive months, or for an aggregate of 60 days
during any period of twelve consecutive months and (ii) within thirty days after
written Notice of Termination is given to the Employee after such two- or
twelve- month period, the Employee shall not have returned to the substantial
performance of his duties on a full-time basis, the Company shall have the right
to terminate the Employee's employment hereunder for "Disability".
5.3 Cause.
The Company shall have the right to terminate the Employee's employment for
"Cause." For purposes of this Agreement, the Company shall have "Cause" to
terminate the Employee's employment only upon the Employee's:
(a) conviction
of a felony or willful gross misconduct that, in either case, results in
material and demonstrable damage to the business or reputation of the Company;
or
(b) willful
and continued failure to perform his duties hereunder (other than such failure
resulting from the Employee's incapacity due to physical or mental illness or
after the issuance of a Notice of Termination by the Employee for Good Reason)
within ten business days after the Company delivers to his a written demand for
performance that specifically identifies the actions to be
performed.
(c) For
purposes of this Section, no act or failure to act by the Employee shall be
considered "willful" if such act is done by the Employee in the good faith
belief that such act is or was to be beneficial to the Company or one or more of
its businesses, or such failure to act is due to the Employee's good faith
belief that such action would be materially harmful to the Company or one of its
businesses. Cause shall not exist unless and until the Company has delivered to
the Employee a copy of a resolution duly adopted by a majority of the Board
(excluding the Employee for purposes of determining such majority) at a meeting
of the Board called and held for such purpose after reasonable (but in no event
less than thirty days') notice to the Employee and an opportunity for the
Employee, together with his counsel, to be heard before the Board, finding that
in the good faith opinion of the Board that "Cause" exists, and specifying the
particulars thereof in detail. This Section 5.3(c) shall not prevent the
Employee from challenging in any court of competent jurisdiction the Board's
determination that Cause exists or that the Employee has failed to cure any act
(or failure to act) that purportedly formed the basis for the Board's
determination.
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(d) Good
Reason. The Employee may terminate his employment for "Good Reason" after giving
the Company detailed written notice thereof, if the Company shall have failed to
cure the event or circumstance constituting "Good Reason" within ten business
days after receiving such notice. Good Reason shall mean the occurrence of any
of the following without the written consent of the Employee or his approval in
his capacity as the Chairman of the Board:
(i) the
assignment to the Employee of duties inconsistent with this Agreement or a
change in his titles or authority;
(ii) any
failure by the Company to comply with Section 4 hereof in any material
way;
(iii) the
requirement of the Employee to relocate to locations other than those provided
in Section 4 hereof;
(iv) the
failure of the Company to comply with and satisfy Section 11.1 of this
Agreement; or
(v) any
material breach of this Agreement by the Company.
(e) The
Employee's right to terminate his employment hereunder for Good Reason shall not
be affected by his incapacity due to physical or mental illness. The Employee's
continued employment shall not constitute consent to, or a waiver of rights with
respect to, any act or failure to act constituting Good Reason
hereunder.
5.4 Without
Cause. The Company shall have the right to terminate the Employee's employment
hereunder without Cause by providing the Employee with a Notice of
Termination.
5.5 Without
Good Reason. The Employee shall have the right to terminate his employment
hereunder without Good Reason by providing the Company with a Notice of
Termination.
6. Termination
Procedure.
6.1 Notice of
Termination. Any termination of the Employee's employment by the Company or by
the Employee during the Employment Period (other than pursuant to Section 5.1)
shall be communicated by written Notice of Termination to the other party. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice
indicating the specific termination provision in this Agreement relied upon and
setting forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Employee's employment under that
provision.
6.2 Date of
Termination. "Date of Termination" shall mean (i) if the Employee's employment
is terminated by his death, the date of his death, (ii) if the Employee's
employment is terminated pursuant to Section 5.2, thirty (30) days after the
date of receipt of the Notice of Termination (provided that the Employee does
not return to the substantial performance of his duties on a full-time basis
during such thirty (30) day period), and (iii) if the Employee's employment is
terminated for any other reason, the date on which a Notice of Termination is
given or any later date (within thirty (30) days after the giving of such
notice) set forth in such Notice of Termination.
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7. Compensation
Upon Termination or During Disability. In the event the Employee is disabled or
his employment terminates during the Employment Period, the Company shall
provide the Employee with the payments and benefits set forth below. The
Employee acknowledges and agrees that the payments set forth in this Section 7
constitute liquidated damages for termination of his employment during the
Employment Period.
7.1 Termination
By Company without Cause or By Employee for Good Reason. If the Employee's
employment is terminated by the Company without Cause (other than Disability) or
by the Employee for Good Reason:
(a) the
Company shall pay to the Employee, on or before the Date of Termination, a lump
sum payment equal to the sum of (A) Base Salary and accrued vacation pay through
the Date of Termination, and (B) half the Base Salary through the Employment
Period;
(b) the
Company shall continue to provide the Employee and his eligible spouse and
dependents for a period equal to the greater of (A) the remaining term of the
Employment Period the medical, hospitalization, dental and life insurance
programs provided for in Section 4.5, as if he had remained employed; provided,
that if the Employee, his spouse or his eligible dependents cannot continue to
participate in the Company programs providing such benefits, the Company shall
arrange to provide the Employee and his spouse and dependents with the economic
equivalent of the benefits they otherwise would have been entitled to receive
under such plans and programs; and provided, further, that such benefits shall
terminate on the date or dates the Employee becomes eligible to receive
equivalent coverage and benefits under the plans and programs of a subsequent
employer at an equivalent cost to the Employee (such coverage and benefits to be
determined on a coverage-by-coverage, or benefit-by-benefit,
basis);
(c) the
Company shall, consistent with past practice, reimburse the Employee pursuant to
Section 4.2 for business expenses incurred but not paid prior to such
termination of employment;
(d) The
payments and benefits provided for as subclause (A) of clause (a) above and in
clause (iii) above are hereinafter referred to as the "Accrued
Obligations".
7.2 Cause or
By Employee Without Good Reason. If the Employee's employment is terminated by
the Company for Cause or by the Employee other than for Good Reason, then the
Company shall provide the Employee with his Accrued Obligations and shall have
no further obligation to the Employee hereunder.
7.3 Disability.
During any period that the Employee fails to perform his duties hereunder as a
result of incapacity due to physical or mental illness ("Disability Period"),
the Employee shall continue to receive his full Base Salary set forth in Section
3.1 until his employment is terminated pursuant to Section 5(b). In the event
the Employee's employment is terminated for Disability pursuant to Section 5.2,
the Company shall provide the Employee with the excess, if any, of his full Base
Salary over the amount of any long-term disability benefits that he receives
under the Company's welfare benefit plans and programs, payable in accordance
with the normal payroll practices of the Company, for the remainder of the
Employment Period and shall have no further obligations to the Employee
hereunder.
7.4 Death. If
the Employee's employment is terminated by his death, the Company shall provide
to the Employee's beneficiary, legal representatives or estate, as the case may
be, the Employee's full Base Salary, payable in accordance with the normal
payroll practices of the Company, for a period equal to the remaining term of
the Employment Period and shall have no further obligations
hereunder.
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7.5 Mitigation.
The Employee shall not be required to mitigate damages with respect to the
termination of his employment under this Agreement by seeking other employment
or otherwise, and there shall be no offset against amounts due the Employee
under this Agreement on account of subsequent employment except as specifically
provided in this Section 7. Additionally, amounts owed to the Employee under
this Agreement shall not be offset by any claims the Company may have against
the Employee, and the Company's obligation to make the payments provided for in
this Agreement, and otherwise to perform its obligations hereunder, shall not be
affected by any other circumstances, including, without limitation, any
counterclaim, recoupment, defense or other right which the Company may have
against the Employee or others.
8. Confidential
Information; Non-Competition; Nonsolicitation.
8.1 Confidential
Information. Except as may be required or appropriate in connection with his
carrying out his duties under this Agreement, the Employee shall not, without
the prior written consent of the Company or as may otherwise be required by law
or any legal process, or as is necessary in connection with any adversarial
proceeding against the Company (in which case the Employee shall cooperate with
the Company in obtaining a protective order at the Company's expense against
disclosure by a court of competent jurisdiction), communicate, to anyone other
than the Company and those designated by the Company or on behalf of the Company
in the furtherance of its business or to perform his duties hereunder, any trade
secrets, confidential information, knowledge or data relating to the Company and
its businesses and investments, obtained by the Employee during the Employee's
employment by the Company and AURASOURCE INC. that is not generally available
public knowledge (other than by acts by the Employee in violation of this
Agreement).
8.2 Noncompetition.
During the Employment Period and until the 12-month anniversary of the
Employee's Date of Termination if the Employee's employment is terminated by the
Company for Cause or the Employee terminates employment without Good Reason, the
Employee shall not engage in or become associated with any Competitive Activity.
For purposes of this Section 8.2, a "Competitive Activity" shall mean any
business or other endeavor that engages in any country in which the Company has
significant business operations as of the Date of Termination to a significant
degree in a business that directly competes with all or any substantial part of
the Company's business. The Employee shall be considered to have become
"associated with a Competitive Activity" if he becomes involved as an owner,
employee, officer, director, independent contractor, agent, partner, advisor, or
in any other capacity calling for the rendition of the Employee's personal
services, with any individual, partnership, corporation or other organization
that is engaged in a Competitive Activity and his involvement relates to a
significant extent to the Competitive Activity of such entity; provided,
however, that the Employee shall not be prohibited from (a) owning less than one
percent (1%) of any publicly traded corporation, whether or not such corporation
is in competition with the Company or (b) serving as a director of a corporation
or other entity the primary business of which is not a Competitive Activity. If,
at any time, the provisions of this Section 8(a) shall be determined to be
invalid or unenforceable, by reason of being vague or unreasonable as to area,
duration or scope of activity, this Section 8.2 shall be considered divisible
and shall become and be immediately amended to only such area, duration and
scope of activity as shall be determined to be reasonable and enforceable by the
court or other body having jurisdiction over the matter; and the Employee agrees
that this Section 8.2 as so amended shall be valid and binding as though any
invalid or unenforceable provision had not been included herein.
8.3 Nonsolicitation.
During the Employment Period, and for 12 months after the Employee's Date of
Termination if the Employee's employment is terminated by the Company for Cause
or the Employee terminates employment without Good Reason, the Employee will
not, directly or indirectly, solicit for employment by other than the Company
any person (other than any personal secretary or assistant hired to work
directly for the Employee) employed by the Company or its affiliated companies,
nor will the Employee, directly or indirectly, solicit for employment by other
than the Company any person known by the Employee (after reasonable inquiry) to
be employed at the time by the Company or its affiliated companies.
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8.4 Injunctive
Relief. In the event of a breach or threatened breach of this Section 8, the
Employee agrees that the Company shall be entitled to injunctive relief in a
court of appropriate jurisdiction to remedy any such breach or threatened
breach, the Employee acknowledging that damages would be inadequate and
insufficient.
9. Indemnification.
9.1 General.
The Company agrees that if the Employee is made a party or is threatened to be
made a party to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by reason of the fact that the
Employee is or was a trustee, director or officer of the Company, AURASOURCE INC
or any of their affiliates or is or was serving at the request of the Company,
AURASOURCE INC. or any of their affiliates as a trustee, director, officer,
member, employee or agent of another corporation or a partnership, joint
venture, limited liability company, trust or other enterprise, including,
without limitation, service with respect to employee benefit plans, whether or
not the basis of such Proceeding is alleged action in an official capacity as a
trustee, director, officer, member, employee or agent while serving as a
trustee, director, officer, member, employee or agent, the Employee shall be
indemnified and held harmless by the Company to the fullest extent authorized by
Nevada law, as the same exists or may hereafter be amended, against all Expenses
incurred or suffered by the Employee in connection therewith, and such
indemnification shall continue as to the Employee even if the Employee has
ceased to be an officer, director, trustee or agent, or is no longer employed by
the Company and shall inure to the benefit of his heirs, executors and
administrators.
9.2 Expenses.
As used in this Agreement, the term "Expenses" shall include, without
limitation, damages, losses, judgments, liabilities, fines, penalties, excise
taxes, settlements, and costs, attorneys' fees, accountants' fees, and
disbursements and costs of attachment or similar bonds, investigations, and any
expenses of establishing a right to indemnification under this
Agreement.
9.3 Enforcement.
If a claim or request under this Section 9 is not paid by the Company or on its
behalf, within thirty (30) days after a written claim or request has been
received by the Company, the Employee may at any time thereafter bring suit
against the Company to recover the unpaid amount of the claim or request and if
successful in whole or in part, the Employee shall be entitled to be paid also
the expenses of prosecuting such suit. All obligations for indemnification
hereunder shall be subject to, and paid in accordance with, applicable Nevada
law.
9.4 Partial
Indemnification. If the Employee is entitled under any provision of this
Agreement to indemnification by the Company for some or a portion of any
Expenses, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify the Employee for the portion of such Expenses to which
the Employee is entitled.
9.5 Advances
of Expenses. Expenses incurred by the Employee in connection with any Proceeding
shall be paid by the Company in advance upon request of the Employee that the
Company pay such Expenses, but only in the event that the Employee shall have
delivered in writing to the Company (i) an undertaking to reimburse the Company
for Expenses with respect to which the Employee is not entitled to
indemnification and (ii) a statement of his good faith belief that the standard
of conduct necessary for indemnification by the Company has been
met.
9.6 Notice of
Claim. The Employee shall give to the Company notice of any claim made against
his for which indemnification will or could be sought under this Agreement. In
addition, the Employee shall give the Company such information and cooperation
as it may reasonably require and as shall be within the Employee's power and at
such times and places as are convenient for the Employee.
9.7 Defense
of Claim. With respect to any Proceeding as to which the Employee notifies the
Company of the commencement thereof:
(a) The
Company will be entitled to participate therein at its own expense;
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(b) Except as
otherwise provided below, to the extent that it may wish, the Company will be
entitled to assume the defense thereof, with counsel reasonably satisfactory to
the Employee, which in the Company's sole discretion may be regular counsel to
the Company and may be counsel to other officers and directors of the Company or
any subsidiary. The Employee also shall have the right to employ his own counsel
in such action, suit or proceeding if he reasonably concludes that failure to do
so would involve a conflict of interest between the Company and the Employee,
and under such circumstances the fees and expenses of such counsel shall be at
the expense of the Company.
(c) The
Company shall not be liable to indemnify the Employee under this Agreement for
any amounts paid in settlement of any action or claim effected without its
written consent. The Company shall not settle any action or claim in any manner
which would impose any penalty that would not be paid directly or indirectly by
the Company or limitation on the Employee without the Employee's written
consent. Neither the Company nor the Employee will unreasonably withhold or
delay their consent to any proposed settlement.
9.8 Non-exclusivity.
The right to indemnification and the payment of expenses incurred in defending a
Proceeding in advance of its final disposition conferred in this Section 9 shall
not be exclusive of any other right which the Employee may have or hereafter may
acquire under any statute or certificate of incorporation or by-laws of the
Company or any subsidiary, agreement, vote of shareholders or disinterested
directors or trustees or otherwise.
10. Legal Fees and Expenses. If
any contest or dispute shall arise between the Company and the Employee
regarding any provision of this Agreement, the non-prevailing party shall
reimburse the prevailing for all legal fees and expenses reasonably in
connection with such contest or dispute, but only if the prevailing party
prevails to a substantial extent with respect to the Employee's claims brought
and pursued in connection with such contest or dispute. Such reimbursement shall
be made as soon as practicable following the resolution of such contest or
dispute (whether or not appealed) to the extent the nonprevailing receives
reasonable written evidence of such fees and expenses.
11. Successors;
Binding Agreement.
11.1 Company's
Successors. No rights or obligations of the Company under this Agreement may be
assigned or transferred, except that the Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall include
any successor to its business and/or assets (by merger, purchase or otherwise)
which executes and delivers the agreement provided for in this Section 11 or
which otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law.
11.2 Employee's
Successors. No rights or obligations of the Employee under this Agreement may be
assigned or transferred by the Employee other than his rights to payments or
benefits hereunder, which may be transferred only by will or the laws of descent
and distribution. Upon the Employee's death, this Agreement and all rights of
the Employee hereunder shall inure to the benefit of and be enforceable by the
Employee's beneficiary or beneficiaries, personal or legal representatives, or
estate, to the extent any such person succeeds to the Employee's interests under
this Agreement. If the Employee should die following his Date of Termination
while any amounts would still be payable to his hereunder if he had continued to
live, all such amounts unless otherwise provided herein shall be paid in
accordance with the terms of this Agreement to such person or persons so
appointed in writing by the Employee, or otherwise to his legal representatives
or estate.
12. Notices. All notices and other
communications under this Agreement shall be in writing and shall be given by
hand delivery, facsimile or nationally recognized overnight courier, and shall
be deemed
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to have
been duly given 1) if delivered by hand, on the date of such delivery, 2) if
delivered by facsimile, on the date of such delivery, with receipt of
appropriate confirmation, and 3) if delivered by nationally recognized overnight
courier, on the business day following dispatch to the respective persons named
below:
If to the
Company: AuraSource,
Inc.
0000 Xxxx
Xxxxxxxxxx Xxxxx Xxxx
Xxxxx
000
Xxxxxxxxxx,
XX 85258
United
States - Map
Phone:
000-000-0000
Attn:
CFO
If to
Employee: Xxxxxx
Xxx
0000 Xxxx
Xxxxxxxxxx Xxxxx Xxxx
Xxxxx
000
Xxxxxxxxxx,
XX 85258
United
States - Map
Phone:
000-000-0000
Attn:
Xxxxxx Xxx
Any party
may change such party’s address or facsimile number for notices by notice duly
given pursuant hereto.
13. General.
13.1 Indemnification. The Company will
indemnify Employee to the full extent permitted by applicable law and provide
coverage with respect to claims relating to his service as a director or
employee of the Company under the Company's directors and officers insurance
policy (as in effect from time to time).
13.2 Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Nevada without giving
effect to the conflict of laws principles thereof.
13.3 Arbitration. Except as
necessary for the Company and its parent, subsidiaries, affiliates, strategic
partners, successors or assigns or for Employee to specifically enforce or
enjoin a breach of this Agreement (to the extent such remedies are otherwise
available), the parties agree that any and all disputes that may arise in
connection with, arising out of or relating to this Agreement, or any dispute
that relates in any way, in whole or in part, to Employee’s employment with the
Company or any parent, subsidiary, affiliate or strategic partner, the
termination of that employment or any other dispute by and between the parties
or their parents, subsidiaries, affiliates, strategic partners, successors or
assigns, shall be submitted to binding arbitration in Los Angeles, Nevada
according to the rules and procedures of the American Arbitration
Association. The parties agree that the parties shall each bear his
or its own attorneys’ fees and costs in connection with any such
arbitration. This arbitration obligation extends to any and all
claims that may arise by and between the parties or their parents, subsidiaries,
affiliates, strategic partners, successors or assigns, and expressly extends to,
without limitation, claims or causes of action for wrongful termination,
impairment of ability to compete in the open labor market, breach of an express
or implied contract, breach of the covenant of good faith and fair dealing,
breach of fiduciary duty, fraud, misrepresentation, defamation, slander,
infliction of emotional distress, disability, loss of future earnings, and
claims under the Nevada constitution, the United States Constitution, and
applicable state and federal fair employment laws, federal and state equal
employment opportunity laws, and federal and state labor statutes and
regulations, including, but not limited to, the Civil Rights Act of 1964, as
amended, the Fair Labor Standards Act, as amended, the Americans With
Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as
amended, the Employee Retirement Income Security Act of
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1974, as
amended, the Age Discrimination in Employment Act of 1967, as amended, and any
other state or federal law.
13.4 Entire
Agreement. This Agreement
(including the Schedule, attached hereto) sets forth the entire understanding of
the parties relating to Employee’s employment with the Company and cancels and
supersedes all agreements, arrangements and understandings relating thereto made
prior to or on the date hereof, whether written or oral, between the Employee
and the Company and/or any parent, subsidiary or affiliate thereof.
13.5 Amendments;
Waivers. This Agreement
may be amended, modified, superseded, canceled, renewed or extended, and the
terms or covenants hereof may be waived, only by a written instrument executed
by the parties hereto, or in the case of a waiver, by the party waiving
compliance. No delay of or omission in the exercise of any right, power or
remedy accruing to any party as a result of any breach or default by any other
party under this Agreement shall impair any such right, power or remedy, nor
shall it be construed as a waiver of or acquiescence in any such breach or
default, or of any similar breach or default occurring later. No waiver by any
party of the breach of any term or covenant contained in this Agreement, whether
by conduct or otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this
Agreement.
13.6 No
Conflict with Other Agreements. Employee
represents and warrants that neither his execution of this Agreement nor the
full and complete performance of his obligations hereunder will violate or
conflict in any respect with any written or oral agreement or understanding with
any person or entity.
13.7 Successors
and Assigns. This Agreement
shall inure to the benefit of and shall be binding upon the Company (and its
successors and assigns) and Employee and his heirs, executors and personal
representatives.
13.8 Withholding. Notwithstanding
any other provision of this Agreement, the Company may withhold from amounts
payable under this Agreement all federal, state, local and foreign taxes that
are required to be withheld by applicable laws or regulations, including,
without limitation, such taxes that are required to be withheld in connection
with Section 3.
13.9 Reformation
and Severability. In case any provision of this Agreement
shall be held to be invalid, illegal or unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal and enforceable but
so as to most nearly retain the intent of the parties, and if such modification
is not possible, such provision shall be severed from this Agreement, and in
either case the validity, legality and enforceability of the remaining
provisions of this Agreement and the future application of such provision shall
not in any way be affected or impaired thereby.
13.10 Survival. This
Agreement shall survive the termination of Employee’s employment and the
expiration of the Term to the extent necessary to give effect to its
provisions.
13.11 Captions. The headings of
this Agreement are inserted for convenience only, shall not constitute a part of
this Agreement or be used to construe or interpret any provision
hereof.
13.12 Counterparts. This Agreement
may be executed by the parties hereto in separate counterparts, each of which
when so executed and delivered shall be an original but all such counterparts
together shall constitute one and the same instrument.
13.13 Representation
by Counsel. Employee
acknowledges that the Company has not rendered to him any advice as to any terms
and conditions of this Agreement. Employee has been advised to seek
and obtain his own advice of counsel concerning the terms and conditions of this
Agreement and is relying on such advice.
[REST OF
PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Employee
and the Company have executed this Agreement as of the date first written
above.
/s/
XXXX XXXXXXXXXXXX
By:Xxxx
Xxxxxxxxxxxx
Its:
CFO
Employee
/s/
XXXXXX XXX
Hongliang Xxxxxx Xxx
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SCHEDULE
A
Bonus
Compensation
Employee
will be paid an incentive bonus of the Company meets or exceeds, for each year
of the Term, two budgeted, measurable metrics (the “Measurable Metrics”), which
shall be (i) the Company’s gross revenues and (ii) the Company’s EBITDA or (iii)
certain milestones. The Measurable Metrics and bonus for the first
year of the Term shall be established by the Board and Employee no
later than September 30, 2009
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