EXHIBIT NO. DESCRIPTION
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99.2 Employment agreement
January 5th, 2005
Xx. Xxxxxxx Xxxxxx
A British Citizen, and permanent resident of Hong Kong (ID number X000000(X)
Room 2218
Ascott Pudong
0 Xxxxxx Xxxxxx
Xxxxxxxx 000000
Xxxxx
RE: INTERIM CFO EMPLOYMENT AGREEMENT
Dear Xx. Xxxxxx:
On behalf of Hartcourt Capital Inc., I am pleased to offer you the
position of Interim Chief Financial Officer with Hartcourt Capital Inc. (the
"Company"). This Employment Agreement sets forth the terms of our offer of
employment to you for your approval and agreement.
1. EMPLOYMENT BY THE COMPANY.
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(a) DUTIES. You will be employed by the Company as its Interim Chief
Financial Officer, reporting to the Chief Executive Officer. You will have the
standard duties and powers associated with the chief financial officer of a
company, and your duties may include other duties as reasonably assigned by the
CEO from time to time. Notwithstanding the foregoing, you shall not be entitled
to approve or bind the Company to any action or obligation that requires
approval by the Board under corporate law, the Articles of Incorporation, or
bylaws of the Company, or the guidelines, policies, and procedures adopted and
established from time to time by the Board without Board approval.
(b) COMPANY POLICIES. The employment relationship between you and the
Company will be governed by the general employment policies and practices of the
Company, provided, however, that when the terms of this Employment Agreement
differ from or are in conflict with the Company's general employment policies or
practices, this Employment Agreement will control.
2. TERM OF EMPLOYMENT.
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(a) TERM. Your employment with the Company will be for no specified
term, and may be terminated by you or the Company at any time, with or without
cause.
(b) SURVIVAL. Upon the termination of your employment with the Company,
for any reason, neither you nor the Company shall have any further obligation or
liability under this Employment Agreement to the other, except as set forth in
Sections 5, 6, 7, 8, 9, and 10 below.
3. COMPENSATION.
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(a) SALARY. You will receive for your services an annual base salary of
twenty thousand US dollars ($20,000), payable in equal monthly installments of
eight hundred thirty three US dollars and thirty three cents ($833.33) cash and
eight hundred thirty US dollars and thirty three cents ($833.33) worth of
Hartcourt common shares. The average 20-day trading price of Hartcourt prior to
the first of month will be used to calculate this compensation amount. The
salary will be paid in accordance with the Company's standard payroll practices
and subject to standard withholdings for taxes and social security and the like.
Your Base Salary will be reviewed annually.
(b) EXPENSES. Subject to compliance with the Company's normal and
customary policies regarding substantiation and verification of business
expenses, you are authorized to incur on behalf of the Company, and the Company
will directly pay or shall fully reimburse you for, all customary and reasonable
expenses incurred for promoting, pursuing, or otherwise furthering the business
of the Company and its affiliates.
4. STOCK.
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The Company will grant you an option to purchase common stock
consisting of 100,000 shares of common stock at an exercise price per share
equal to no more than the closing price on December 31, 2004. The Initial
Vesting Date for these shares shall be December 31, 2005.
5. TERMINATION OF EMPLOYMENT.
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(a) VOLUNTARY TERMINATION. You may voluntarily terminate your
employment with the Company at any time. If you voluntarily terminate your
employment, you will receive payment for any earned and unpaid Base Salary as of
the date of such termination, less standard withholdings for tax and social
security purposes, through the termination date, which shall be the date upon
which you voluntarily cease performing your duties under this Employment
Agreement. The Company shall have no further obligation to pay any compensation
of any kind.
(b) TERMINATION FOR CAUSE.
(1) TERMINATION. The Company may terminate your employment
with the Company at any time for "cause" (as defined below). In the
event that your employment is terminated, you shall receive payment for
all earned but unpaid Base Salary, less standard withholdings for tax
and social security purposes, through the date of your termination,
which shall be the date upon which such notice of termination is given.
The Company shall have no further obligation to pay you compensation of
any kind or to make any payment in lieu of notice.
(2) DEFINITION OF CAUSE. For purposes of this Employment
Agreement, the Company shall have "cause" to terminate your employment
upon any of the following: (a) a material breach by you of the terms of
this Employment Agreement; (b) any breach of fiduciary duty or act of
theft, misappropriation, embezzlement, intentional fraud, falsification
of any employment or Company records, or other violation of applicable
law or regulation or similar conduct by you involving the Company or
any of its affiliates; (c) your conviction or plea of NOLO CONTENDERE
or the equivalent involving a felony or a crime involving fraud or
dishonesty; (d) any damage of a material nature to the business or
property of the Company or any of its affiliates caused by your willful
or grossly negligent conduct; (e) the willful failure or refusal by you
to perform reasonable duties, responsibilities, or instructions from
the Board; (f) engaging in abuse of alcohol, illegal drugs, or
controlled substances in a manner that materially interferes with your
performance of your duties; or (g) improper disclosure of the Company's
confidential or proprietary information. No act, or failure to act, by
you shall be considered "willful" unless committed without a reasonable
belief that the act or omission was in the Company's best interest.
(c) TERMINATION WITHOUT CAUSE. The Company, at any time without prior
written notice, may terminate you without cause. If your employment is
terminated without cause you shall receive payment for all earned but unpaid
Base Salary as of the termination date, which shall be the date of your
termination, less standard withholdings for tax and social security purposes, as
of the termination date. The Company shall also pay to you as severance (1) an
amount equal to one month of your then base salary, less standard withholdings
for tax and social security purposes, in a lump sum on the termination date; and
(2) pro-rated vesting of unvested stock options upon such termination date. No
other compensation of any kind shall be payable by the Company after such
termination date.
(d) AT-WILL EMPLOYMENT. You understand and agree that your employment
with the Company is at-will, which means that either you or the Company may,
subject to the terms of this Employment Agreement, terminate this Employment
Agreement at any time, with or without cause, as set forth in this Employment
Agreement. Any modification of the at-will nature of this Employment Agreement
must be in writing and executed by you and the Company.
6. PROPRIETARY INFORMATION OBLIGATIONS.
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You agree to sign and abide by the terms of the Company's standard form
of intellectual property assignment and employee confidentiality agreement, if
any.
7. NONINTERFERENCE.
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While employed by the Company pursuant to this Employment Agreement and
for a period of six months after the date of your termination, you agree not to
solicit or hire or attempt to solicit or hire, directly or indirectly, any
employee of the Company or any affiliate.
8. INJUNCTIVE RELIEF.
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The parties agree that damages would be an inadequate remedy for the
Company in the event of a breach or threatened breach of Section 6 or 7 of this
Employment Agreement by you, and in the event or any such breach or threatened
breach, the Company may, either with or without pursuing any potential damage
remedies, obtain and enforce an injunction prohibiting you from violating such
section of this Employment Agreement and requiring you to comply with its terms.
9. WARRANTIES AND REPRESENTATIONS.
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You hereby represent and warrant to the Company that you:
(a) are not now under any obligation of a contractual or
quasi-contractual nature known to you that is inconsistent or in conflict with
this Employment Agreement or that would prevent, limit, or impair the
performance by you of any of your obligations under this Employment Agreement;
and
(b) have been or have had the opportunity to be represented by legal
counsel in the preparation, negotiation, execution, and delivery of this
Employment Agreement and understand fully its terms and provision.
10. MISCELLANEOUS.
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(a) NOTICES. Any notice or other communication required or permitted
under this Employment Agreement shall be in writing. All notices shall be sent
to the addresses specified below, unless such other address may be designated by
notice given in accordance with this Section.
To the Company:
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Hartcourt Capital Inc.
0X, Xx. 000 XxxxxXxxx Xxxx
Xxxxxxxx, Xxxxx 200040
Facsimile: (00 00) 0000 0000
Attention: Chief Executive Officer
To you:
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Xxxxxxx Xxxxxx
Room 2218, Ascott Pudong, 0 Xxxxxx Xxxxxx
Xxxxxxxx 000000, Xxxxx
or to such other address or to the attention of such other person as the
recipient party will have specified by prior written notice to the sending
party.
(b) SEVERABILITY. If any term or provision (or any portion) of this
Employment Agreement is determined by a court to be invalid, illegal or
incapable of being enforced by any rule of law or public policy, all other terms
and provisions (or other portions) of this Employment Agreement shall
nevertheless remain in full force and effect. Upon such determination that any
term or provision (or any portion) is invalid, illegal or incapable of being
enforced, this Employment Agreement shall be deemed to be modified so as to
effect the original intent of the parties as closely as possible to the end that
the transactions contemplated hereby and the terms and provisions are fulfilled
to the greatest extent possible.
(c) ENTIRE AGREEMENT. This document constitutes the final, complete,
and exclusive embodiment of the entire agreement and understanding between the
parties related to the subject matter hereof and supersedes and preempts any
prior or contemporaneous understandings, agreements, or representations by or
between the parties, written or oral.
(d) SUCCESSORS AND ASSIGNS. This Employment Agreement is intended to
bind and inure to the benefit of and be enforceable by you and the Company, and
their respective successors and assigns, except that you may not delegate any of
your duties hereunder and you may not assign any of your rights hereunder
without the prior written consent of the Company.
(e) AMENDMENTS. No amendment or other modification to this Employment
Agreement may be made except by a writing signed by both parties. Nothing in
this Employment Agreement, express or implied, is intended to confer upon any
third person any rights or remedies under or by reason of this Employment
Agreement.
(f) CHOICE OF LAW. All questions concerning the construction, validity
and interpretation of this Employment Agreement will be governed by the laws of
Hong Kong.
We are eager to have you join us as a key member of the Hartcourt
Companies team. Please indicate your acceptance of the terms of this Employment
Agreement by signing below.
Sincerely,
Hartcourt Capital Inc.
Xxxxxx Xxxxxxxx
Chief Executive Officer
Acknowledged and agreed:
________________________
Xxxxxxx Xxxxxx
