Exhibit 10.59
XXXX.XXX
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is dated as of June 1, 2002
by and between Xxxxxx Daolin Mao ("Executive") and XXXX.XXX, a Cayman Islands
company (the "Company").
1. TERM OF AGREEMENT. This Agreement shall commence on the date hereof
and shall have a term of three years (the "Original Term"). This Agreement may
be terminated by either party, with or without cause, on 30 days' written notice
to the other party. This Agreement may be extended for an additional one year
after the end of the Original Term if the parties mutually agree in writing to
such extension.
2. DUTIES.
(a) POSITION. Executive shall be employed as Chief Executive
Officer, and as such will and report to the Company's Board of Directors.
(b) OBLIGATIONS TO THE COMPANY. Executive agrees to the best of
his ability and experience that he will at all times loyally and conscientiously
perform all of the duties and obligations required of and from Executive
pursuant to the express and implicit terms hereof, and to the reasonable
satisfaction of the Company. During the term of Executive's employment
relationship with the Company, Executive further agrees that he will devote all
of his business time and attention to the business of the Company, the Company
will be entitled to all of the benefits and profits arising from or incident to
all such work services and advice, Executive will not render commercial or
professional services of any nature to any person or organization, whether or
not for compensation, without the prior written consent of the Company's Board
of Directors, and Executive will not directly or indirectly engage or
participate in any business that is competitive in any manner with the business
of the Company. Nothing in this Agreement will prevent Executive from accepting
speaking or presentation engagements in exchange for honoraria or from serving
on boards of charitable organizations, or from owning no more than 1% of the
outstanding equity securities of a corporation whose stock is listed on a
national stock exchange or the Nasdaq National Market. Executive will comply
with and be bound by the Company's operating policies, procedures and practices
from time to time in effect during the term of Executive's employment.
3. AT-WILL EMPLOYMENT. The Company and Executive acknowledge that
Executive's employment is and shall continue to be at-will, as defined under
applicable law, and that Executive's employment with the Company may be
terminated by either party at any time for any or no reason. If Executive's
employment terminates for any reason, Executive shall not be entitled to any
payments, benefits, damages, award or compensation other than as provided in
this Agreement. The rights and duties created by this Section 3 may not be
modified in any way except by a written agreement approved by the Board of
Directors of the Company.
4. COMPENSATION. For the duties and services to be performed by
Executive hereunder, the Company shall pay Executive, and Executive agrees to
accept, the salary, stock options, bonuses and other benefits described below in
this Section 4.
(a) SALARY. Executive shall receive a monthly salary of
US$25,000, which is equivalent to US$300,000 on an annualized basis. Executive's
monthly salary will be payable pursuant to the Company's normal payroll
practices for payment of compensation to executives. Executive's salary will be
reviewed at the time determined appropriate by the Board or Directors of the
Company or its Compensation Committee, and any increase will be effective as of
the date determined appropriate by the Board or its Compensation Committee.
(b) STOCK OPTIONS AND OTHER INCENTIVE PROGRAMS. Executive shall
be eligible to participate in any stock option or other incentive programs
available to officers or employees of the Company.
(c) BONUSES. Executive's entitlement to incentive bonuses from
the Company is discretionary and shall be determined by the Board of Directors
of the Company, or its Compensation Committee, in good faith based upon the
extent to which Executive's individual performance objectives and the Company's
profitability objectives and other financial and nonfinancial objectives are
achieved during the applicable bonus period. In the event of Executive's
termination of employment on account of death or Disability during the term of
this Agreement, the Company shall pay to Executive or Executive's estate the
bonus Executive would have earned during the entire year in which death or
Disability occurred.
(d) ADDITIONAL BENEFITS. Executive will be eligible to
participate in the Company's employee benefit plans of general application,
including without limitation, those plans covering medical, disability and life
insurance in accordance with the rules established for individual participation
in any such plan and under applicable law. Executive will be eligible for
vacation and sick leave in accordance with the policies in effect during the
term of this Agreement and will receive such other benefits as the Company
generally provides to its other employees of comparable position and experience.
(e) REIMBURSEMENT OF EXPENSES. Executive shall be authorized to
incur on behalf and for the benefit of, and shall be reimbursed by, the Company
for reasonable expenses, provided that such expenses are substantiated in
accordance with Company policies.
5. TERMINATION OF EMPLOYMENT AND SEVERANCE BENEFITS.
(a) TERMINATION OF EMPLOYMENT. This Agreement may be terminated
during its Original Term (or any extension thereof) upon the occurrence of any
of the following events:
(i) The Company's determination in good faith that it is
terminating Executive for Cause (as defined in Section 6 below) ("Termination
for Cause");
(ii) The Company's determination that it is terminating
Executive without Cause, which determination may be made by the Company at any
time at the Company's sole discretion, for any or no reason ("Termination
Without Cause");
(iii) The effective date of a written notice sent to the
Company from Executive stating that Executive is electing to terminate his
employment with the Company ("Voluntary Termination");
(iv) A change in Executive's status such that a
Constructive Termination (as defined in Section 5(b)(iv) below) has occurred; or
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(v) Following Executive's termination of employment on
account of death or Disability (as defined in Section 7 below).
(b) SEVERANCE BENEFITS. Executive shall be entitled to receive
severance benefits upon termination of employment only as set forth in this
Section 5(b):
(i) VOLUNTARY TERMINATION. If Executive's employment
terminates by Voluntary Termination, then Executive shall not be entitled to
receive payment of any severance benefits. Executive will receive payment(s) for
all salary and unpaid vacation accrued as of the date of Executive's termination
of employment and Executive's benefits will be continued under the Company's
then existing benefit plans and policies in accordance with such plans and
policies in effect on the date of termination and in accordance with applicable
law.
(ii) INVOLUNTARY TERMINATION. If Executive's employment is
terminated under Section 5(a)(ii) or 5(a)(iv) above (such termination, an
"Involuntary Termination"), Executive will be entitled to receive payment of
severance benefits equal to Executive's regular monthly salary for the larger of
(i) 12 months or (ii) the remainder of the Term of this Agreement (the
"Severance Period") provided that Executive agrees to release the Company from
any and all claims arising from or related to the employment relationship or
such termination and executes an release agreement as requested by the Company
at the time of such termination. Such payments shall be made ratably over the
Severance Period according to the Company's standard payroll schedule. Executive
will also be entitled to receive payment on the date of termination of any bonus
payable under Section 4(c). Health insurance benefits with the same coverage
provided to Executive prior to the termination (e.g. medical, dental, optical,
mental health) and in all other respects significantly comparable to those in
place immediately prior to the termination will be provided at the Company's
cost over the Severance Period. Any unvested stock options or shares of
restricted stock held by Executive as of the date of Executive's termination of
employment shall continue to vest through the end of the Severance Period
according to the vesting schedule set forth in any agreement between Executive
and the Company governing the issuance to Executive of such securities.
(iii) TERMINATION FOR CAUSE. If Executive's employment is
terminated for Cause, then Executive shall not be entitled to receive payment of
any severance benefits. Executive will receive payment(s) for all salary and
unpaid vacation accrued as of the date of Executive's termination of employment
and Executive's benefits will be continued under the Company's then existing
benefit plans and policies in accordance with such plans and policies in effect
on the date of termination and in accordance with applicable law.
(iv) CONSTRUCTIVE TERMINATION. "Constructive Termination"
shall be deemed to occur if (A)(1) there is an adverse change in Executive's
position causing such position to be of reduced stature or responsibility, or
(2) a reduction of more than 10% of Executive's base compensation unless in
connection with similar decreases of other similarly situated employees of the
Company; and (B) within the 30-day period immediately following such change or
reduction Executive elects to terminate his employment voluntarily.
(v) TERMINATION BY REASON OF DEATH OR DISABILITY. In the
event that Executive's employment with the Company terminates as a result of
Executive's death or Disability (as defined in Section 7 below), Executive or
Executive's estate or representative will receive all salary and unpaid vacation
accrued as of the date of Executive's death or Disability and any other benefits
payable under the Company's then existing benefit plans and policies in
accordance with such plans and policies in effect on the date of death or
Disability and in accordance with applicable law. In addition,
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Executive's estate or representative will receive the amount of Executive's
target bonus for the fiscal year in which the death or Disability occurs to the
extent that the bonus has been earned as of the date of Executive's death or
Disability, as determined by the Board of Directors or its Compensation
Committee based on the specific corporate and individual performance targets
established for such fiscal year.
6. DEFINITION OF CAUSE. For purposes of this Agreement, "Cause" for
Executive's termination will exist at any time after the happening of one or
more of the following events:
(a) Executive's willful misconduct or gross negligence in
performance of his duties hereunder, including Executive's refusal to comply in
any material respect with the legal directives of the Company's Board of
Directors so long as such directives are not inconsistent with the Executive's
position and duties, and such refusal to comply is not remedied within 10
working days after written notice from the Board of Directors, which written
notice shall state that failure to remedy such conduct may result in Termination
for Cause;
(b) Dishonest or fraudulent conduct, a deliberate attempt to do
an injury to the Company, or conduct that materially discredits the Company or
is materially detrimental to the reputation of the Company, including conviction
of a felony; or
(c) Executive's incurable material breach of any element of the
Company's Confidential Information and Invention Assignment Agreement, including
without limitation, Executive's theft or other misappropriation of the Company's
proprietary information.
7. DEFINITION OF DISABILITY. For purposes of this Agreement,
"Disability" shall mean that Executive has been unable to perform his duties
hereunder as the result of his incapacity due to physical or mental illness, and
such inability, which continues for at least 120 consecutive calendar days or
150 calendar days during any consecutive twelve-month period, if shorter, after
its commencement, is determined to be total and permanent by a physician
selected by the Company and its insurers and acceptable to Executive or to
Executive's legal representative (with such agreement on acceptability not to be
unreasonably withheld).
8. CONFIDENTIALITY AGREEMENT. Executive shall sign, or has signed, a
Confidential Information and Invention Assignment Agreement (the
"Confidentiality Agreement") substantially in the form attached hereto as
Exhibit A. Executive hereby represents and warrants to the Company that he has
complied with all obligations under the Confidentiality Agreement and agrees to
continue to abide by the terms of the Confidentiality Agreement and further
agrees that the provisions of the Confidentiality Agreement shall survive any
termination of this Agreement or of Executive's employment relationship with the
Company.
9. NONCOMPETITION COVENANT. Executive hereby agrees that he shall not,
during the term of his employment pursuant to this Agreement and the Severance
Period, if any, do any of the following without the prior written consent of the
Company's Board of Directors:
(a) COMPETE. Carry on any business or activity (whether directly
or indirectly, as a partner, stockholder, principal, agent, director, affiliate,
employee or consultant) which is competitive with the business conducted by the
Company (as conducted now or during the term of Executive's employment), nor
engage in any other activities that conflict with Executive's obligations to the
Company.
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(b) SOLICIT BUSINESS. Solicit or influence or attempt to
influence any client, customer or other person either directly or indirectly, to
direct his or its purchase of the Company's products and/or services to any
person, firm, corporation, institution or other entity in competition with the
business of the Company.
(c) SOLICIT PERSONNEL. During the term of this Agreement and for
a period of 12 months thereafter, solicit or influence or attempt to influence
any person employed by the Company to terminate or otherwise cease his
employment with the Company or become an employee of any competitor of the
Company. This Section 9(c) is to be read in conjunction with Section 6 of the
Confidential Information and Invention Assignment Agreement executed by
Executive.
10. CONFLICTS. Executive represents that his performance of all the
terms of this Agreement will not breach any other agreement to which Executive
is a party. Executive has not, and will not during the term of this Agreement,
enter into any oral or written agreement in conflict with any of the provisions
of this Agreement. Executive further represents that he is entering into or has
entered into an employment relationship with the Company of his own free will
and that he has not been solicited as an employee in any way by the Company.
11. SUCCESSORS. Any successor to the Company (whether direct or indirect
and whether by purchase, lease, merger, consolidation, liquidation or otherwise)
to all or substantially all of the Company's business and/or assets shall assume
the obligations under this Agreement and agrees expressly to perform the
obligations under this Agreement in the same manner and to the same extent as
the Company would be required to perform such obligations in the absence of a
succession. The terms of this Agreement and all of Executive's rights hereunder
shall inure to the benefit of, and be enforceable by, Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
12. MISCELLANEOUS PROVISIONS.
(a) NO DUTY TO MITIGATE. Executive shall not be required to
mitigate the amount of any payment contemplated by this Agreement (whether by
seeking new employment or in any other manner), nor, except as otherwise
provided in this Agreement, shall any such payment be reduced by any earnings
that Executive may receive from any other source.
(b) AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived only with the written consent of the parties.
(c) SOLE AGREEMENT. This Agreement, including any Exhibits
hereto, constitutes the sole agreement of the parties and supersedes all oral
negotiations and prior writings with respect to the subject matter hereof.
(d) NOTICES. Any notice required or permitted by this Agreement
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by a nationally-recognized delivery service (such as Federal
Express or UPS), or 48 hours after being deposited in the U.S. mail as certified
or registered mail with postage prepaid, if such notice is addressed to the
party to be notified at such party's address as set forth below or as
subsequently modified by written notice.
(e) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California, without giving effect to the principles of conflict of laws.
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(f) SEVERABILITY. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
(g) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
(h) ARBITRATION. Any dispute or claim arising out of or in
connection with this Agreement will be finally settled by binding arbitration in
California in accordance with the rules of the American Arbitration Association
by one arbitrator appointed in accordance with said rules. The arbitrator shall
apply California law, without reference to rules of conflicts of law or rules of
statutory arbitration, to the resolution of any dispute. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof. Notwithstanding the foregoing, the parties may apply to any court of
competent jurisdiction for preliminary or interim equitable relief, or to compel
arbitration in accordance with this paragraph, without breach of this
arbitration provision. This Section 12(h) shall not apply to the Confidentiality
Agreement.
(i) ADVICE OF COUNSEL. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES
THAT, IN EXECUTING THIS AGREEMENT, SUCH PARTY HAS HAD THE OPPORTUNITY TO SEEK
THE ADVICE OF INDEPENDENT LEGAL COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE
TERMS AND PROVISIONS OF THIS AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED
AGAINST ANY PARTY BY REASON OF THE DRAFTING OR PREPARATION HEREOF.
[Signature Page Follows]
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The parties have executed this Agreement the date first written above.
XXXX.XXX
By: /s/ Lip Bu Tan
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Lip Bu Tan
Title: Director of the Board of the Company
Address: 0000 Xxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
THE EXECUTIVE:
Signature: /s/ Xxxxxx Daolin Mao
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Address: 0000 Xxxxxxxx Xxxxx
Xxxx Xxxx, XX 00000
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