EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") dated as Nov. 15, 1999, 1999 is
between ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (the "Employee") and Shenzhen ▇▇▇▇▇▇.▇▇▇, a Chinese
company (the "Company" or "Employer"). The Company's principal office is located
at ▇▇/▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇.
Whereas the Company desires to employ the Employee, and the Employee desires to
serve the Company, as the Vice President, Business Development of the Company
under the terms and condition of this Agreement; and
Whereas the Company is part of a group of companies, including Intermost
Corporation, a Utah corporation, ▇▇▇▇▇▇.▇▇▇, a Chinese company, and the
subsidiaries, affiliates and related entities of such companies (collectively,
the "Group").
Now, therefore, intending to be legally bound hereby, Employee and Company agree
as follows:
Article 1: Position and Duties
The Company shall employ Employee as its Vice President, Business Development
(the Employee will nominated as Vice President, Business Development of
Intermost Corporation, subject to the approval of Board of Directors of
Intermost Corporation) under the terms and subject to the conditions set forth
herein. The Employee will be classified as, and shall assume duties appropriate
for the position of, an executive officer of the Company.
During the Term, the Employee shall diligently and faithfully serve the Group
and shall devote all his working time, attention and efforts toward the
performance of his duties and responsibilities hereunder. Employee shall not,
directly or indirectly, without the prior consent of the Company's Board of
Directors, as owner, partner, joint venture, stockholder, employee, corporate
officer or director, engage or become financially interested in, or be concerned
with any other duties or pursuits which interfere with the performance of his
duties hereunder, or which even if non-interfering, may be inimical or contrary
to the best interest of the Group.
These duties include, but are not limited to, assisting the President and
management of the Company and/or the Group to:
(a) Maximize long-term shareholder value of the companies in the Group and the
Group's profitability by formulating and executing Intermost's Business
plan and strategic plan for becoming a long-term player in the Internet
industry in the People's Republic of China (PRC) and other areas;
(b) Provide the Group sound professional advice and leadership in formulating
and executing the Group's strategic development, finance, marketing and
technology plan;
(c) Develop strategic alliances with major players in the Internet industry,
telecommunications industry, financial services industry and other
industries;
(d) Secure, where possible as permitted by the laws of the PRC and the United
States, additional licenses and permits as may be required for Intermost to
become a key play in the Internet industry;
(e) Formulate the Group's employee improvement strategy, to hire, train and
supervise suitable personnel capable of executing their job descriptions
for the benefit of Intermost and the shareholders;
(f) Direct, integrate and allocate staff resources in accordance with the
Group's Business Plan;
(g) Perform such other duties as the Company President and management team
and/or the Group President and management team may reasonably require.
Article 2: Term
The term of the employment of the Employee by the Company pursuant to this
Agreement (the "Term") is for a period commencing November 15, 1999 and
terminating two years later, on November 14, 2001, unless sooner terminated in
accordance of the terms hereof.
Article 3: Compensation
(a) Base Salary. In consideration of the Employee's service rendered pursuant
hereto and the Employee's compliance with the covenants and restrictions
set forth in section 6 here, Company shall pay to the Employee, effective
as of the date hereof, an annual base salary of US$45,000 (the "Base
Salary"), without setoff or deduction of any kind. All tax liabilities
incurred under the laws the People's Republic of China and/or imposed by
the Tax Department of the People's Republic of China relating to the Base
Salary, including income taxes payable by the Employee, shall be for the
account of the Company. Any such taxes paid or payable by the Employee
shall be reimbursed in full by the Company. The Company is not responsible
to pay any income tax imposed by another country or region other than the
People's Republic of China (excluding Hong Kong, Macau and Taiwan) and any
tax liabilities relating to other benefits other than the Basic Salary
incurred in any country including the People's Republic of China. The Base
Salary shall be reviewed by the Company at least annually and may be
increased from time to time, at the sole discretion of the Board of
Directors of the Company. The Company may not, however, reduce the Base
Salary at any time during the term of this Agreement.
(b) Payment. The Company shall pay the Employee by paying US$3,750 on the last
business day of each month in an equivalent amount of Chinese RMB,
according to the prevailing USD-RMB exchange rate as of the day of payment.
(c) Bonus. During the period of the Employee's employment, the Company may, in
its sole discretion, award the Employee an annual bonus in an amount
determined by the Board of Directors and payable in the manner determined
by the Company.
(d) Stock Grant. Employee shall be issued 15,000 shares of Common Stock of
Intermost Corporation ("Intermost") after each 6-month period of service,
subject to the restriction that such shares shall not be sold prior to one
year from the date of issue.
(e) Stock Options. Upon the commencement of the Employment Term, Employee shall
receive options (each an "Option" and together, the "Options") to purchase,
on each of the first anniversary and second anniversary of this Agreement,
the following shares of the Common Stock of Intermost (the "Option Shares")
at the prices indicated:
Anniversary Date Number of Shares Price per share
First Anniversary 250,000 US $3.50
Second Anniversary 250,000 US $4.00
(i) The Options shall be fully vested immediately, and shall be
immediately exercisable, notwithstanding the exercise periods
specified above, upon a Change of Control. A "Change of Control" shall
mean the occurrence of any of the following: (i) a sale of
substantially all of Intermost's assets in a single transaction or a
series of related transactions or a complete liquidation of Intermost,
or (ii) any other event that the Board of the Intermost determines to
be a Change of Control. This provision is not applicable when
Intermost offers new shares in a stock exchange including the case of
an initial public offer or any subsequent public offer even if the
offer constitutes a Change of Control.
(ii) The Option Shares shall be shares of Intermost, which have been
registered under a registration statement filed with the Securities
and Exchange Commission of the United States.
(iii)The Options are intended to be part of an employee stock option plan
to be executed by Intermost in favor of the Employee. To the extent
that any terms of this Agreement are inconsistent with the terms of
any such plan, the terms of this Agreement shall control. Intermost is
executing this Agreement and is a party hereto for the sole purpose of
confirming and agreeing to the provisions contained in paragraphs 3(d)
through 3(j) of this Agreement.
(f) Method of Exercising Options. The Options may be exercised by written
notice to Intermost at its principal executive office, or to such transfer
agent as the Intermost shall designate. Such notice shall state the
election to exercise an Option and the number of Option Shares for which it
is being exercised, and shall be signed by the person so exercising the
Option. Such notice shall be accompanied by payment of the full purchase
price of such shares, and Intermost shall deliver a certificate or
certificates representing such shares as soon as practicable after notice
shall be received. The Employee may elect to exercise all or any portion of
the Options vested. Any amount of Options vested but not exercised is
subjected to the time restriction stated in Article 3(g).
(g) Termination of Options. The Options shall terminate on the earlier of the
following:
(i) one (1) year after the termination of the employment of the Employee
by death, disability or for any other reason; or
(ii) the seventh anniversary from the date of vesting of the option,
whichever is earlier.
(h) Options Not Transferable. The Options are not transferable or assignable
except (i) by will or by the laws of descent and distribution, (ii) as
approved by the Board of Directors of Intermost, (iii) to the Employee's
spouse, ex-spouse, children, step-children, mother or father (the
"Immediate Family") (iv) to an entity in which the Employee or his
Immediate Family, individually or collectively, have at least 99% of the
equity, profit and loss interest, or (v) to a trust holding the option for
the benefit of the Employee (each such transferee under subsections (ii)
through (v) being referred to as a "Permitted Transferee"). During the
Employee's lifetime only the Employee or a Permitted Transferee can
exercise this option.
(i) Sales of Option Shares. Employee shall not sell shares obtained through the
exercise of an Option prior to one year after the Option is exercised.
(j) Capital Adjustments. If at any time while the Options are in effect or
unexercised there shall be any increase or decrease in the number of issued
and outstanding shares of the Common Stock of Intermost due to (i) the
declaration of or payment of a stock dividend, (ii) any recapitalization
resulting in a stock split, combination or exchange of shares or (iii) any
other increase or decrease in such shares effected without receipt of
consideration by Intermost, then the number of Option Shares then subject
to purchase shall be adjusted to the end that the same proportion of
Intermost's issued and outstanding shares of Common Stock in each such
instance shall remain subject to purchase at the same aggregate price as
provided in this Agreement.Except as expressly provided above, the issuance
by Intermost of shares of its capital stock of any class shall not affect,
and no adjustment by reason thereof shall be made for, the number of or
price of Option Stock granted under this Agreement
(k) Personal Income Tax. Personal income tax payable upon the sale of any
Option Shares shall be borne by the Employee.
(l) Retirement Plans and other Deferred Compensation Plans. The Employee shall
be entitled to participate under all qualified and nonqualified retirement
or deferred compensation plans approved by the Board of Directors of the
Company for which his position would make him eligible.
(m) Reimbursement of Expenses. The Company shall reimburse the Employee for all
reasonable out-of-pocket expenses incurred by the Employee in the course of
his duties, in accordance with normal policies of the Company. The Company
also agrees to specifically reimburse the Employee for the following
expenses: (i) sea freight up to a maximum amount of US$ 5,000 for the
movement of the Employee's personal possession both to the Company's
offices in Shenzhen, China from Houston, Texas at the inception of his
employment and to Houston, Texas from the Company's offices in Shenzhen,
China at the termination of his employment (for any reason) or upon his
permanent return to the United States; (ii) providing a suitable apartment
or the cost for one month's rent in Shenzhen, China near the offices of the
Company at the inception of his employment to enable him to find suitable
housing; (iii) the cost of air fare from Houston, Texas to Shenzhen, China
(economy air fare) and the cost of return air fare from Shenzhen, China to
Houston, Texas; and, (iv) one round trip ticket (economy air fare) between
Houston, Texas and Shenzhen, China per year of employment.
Article 4: Vacations
The Employee shall be entitled to 15 business days of vacation under guidelines
established by the Company form time to time. Vacation time shall not cumulate
from year to year.
Article 5: Termination by Company
(a) Death and Disability. Except as provided herein, or any agreement made
pursuant thereto, if the Employee shall die or become "Permanently
disabled" during the term of the Agreement, this Agreement and all benefits
hereunder shall terminate except that such termination shall not affect any
vested rights which the Employee may have at the time of his death pursuant
to any insurance or other death benefit plans or arrangements of the
Company, or any rights under the Options, which rights shall continue to be
governed by the provisions of such plans and agreements or this Agreement,
as applicable. For the purposes of this Agreement, Employee shall be deemed
to be "Permanently disabled" if, during the term here, because of ill
health, physical or mental disability, or for other causes beyond
Employee's control, Employee shall have been unable or unwilling, or shall
have failed to perform his duties hereunder for ninety (90) consecutive
days for a total period of one hundred twenty (120) days either consecutive
or not after the Company has made reasonable accommodation for such
disability.
(b) Termination for Cause. This Agreement may be terminated by Company for
"Cause" which, for the purpose of this Agreement shall mean: i) the
commission by the Employee of fraud or dishonesty, or another act of
intentional wrongdoing causing harm to Company, or any act which in
violation of the Company Code and Company's Employee Handbook provided the
Code or Handbook specifically mentioned about termination of employment in
the event of violation or the violation is serious enough for any
reasonable employer to terminate employment contract for such violation,
(ii) the conviction of the Employee of a crime, (iii) any act of gross
negligence or malfeasance by the Employee causing material harm to Company,
or (iv) any material breach by Employee of this Agreement, which breach is
not cured within ten (10) days following written notice of such breach from
the Company. Any termination for cause shall be accompanied by a written
notice from the Company to the Employee setting forth in reasonable detail
the reasons for such termination
(c) Termination without Cause. This Agreement may be terminated by the Company
without cause at any time by delivery of a written notice thirty (30) days
prior to the date of termination. In the absence of such notice, the
Company shall pay the Employee an amount equal to one (1) months of Base
Salary as severance pay.
Article 6: Termination by Employee
Employee may terminate this Agreement at any time by delivery of a written
notice of resignation to Company ("Notice of Resignation") thirty (30) prior to
the date of termination. In the event of termination by Employee pursuant to
this provision, Employee shall be entitled to (i) the Base Salary paid or
provided to Employee under this Agreement through the date of termination, and
(ii) exercise the Options, as provided above.
Article 7: Protection of Confidential Information.
Employee acknowledges that his employment by the Company will, throughout the
term of this Agreement, bring him in contact with many confidential affairs of
the Company and/or any companies in the Group not readily available to the
public, and plans for future developments. In recognition of the foregoing, the
Employee covenants and agrees that he will not use or disclose to anyone outside
of the Company, as the case may be, any material confidential ▇▇▇▇▇▇ of the
Company and/or any companies in the Group, which are not otherwise in the public
domain, either during or for a period of 36 months after the termination of his
employment with Company, except with the Company's written consistent as
required by court order, law or subpoena, or other legal compulsion to disclose.
Article 8: Covenant Not to Compete
The Employee agrees that during the term of this Agreement, employee shall not
either directly or indirectly, whether by establishing a new business or by
joining an existing one, and whether as a principal, employee, stockholder,
officer, direct, agent, consultant or in any other capacity, compete with the
Company and/or any companies in the Group. This restriction shall apply (i) only
to existing clients of the Group and to those companies for which the Group has
developed a business relationship and/or has established formal contact for the
purpose of sales or forming a business relationship and (ii) during the period
of the Employee's employment and for a period of twelve months after the
termination of his employment for any reason.
Article 9: Intellectual Property
If during the term of the Agreement, Employee performs work that results in the
development of any inventions relating to processes, formulations and inventions
("Intellectual Property"), such Intellectual Property shall be the exclusive
property of the Company and Employee shall promptly turn over the Intellectual
Property to the Company and shall take all necessary steps, including the
execution of documents, to vest title and ownership of the Intellectual Property
with the Company.
Article 10: Notice
For the purposes of this Agreement, notices, demands and all other
communications provided for in the Agreement shall be in writing and may be sent
either by registered mail or telegram to him at his last known place or
residence. Any notice given by post shall be deemed served at the expiration of
twenty-four hours or may be sent by post addressed, in the case of the Company,
to its registered office and, in the case of the Employee, may be given
personally or may be deemed served at the expiration of twenty-four (24) hours
after the same was posted or sent.
Article 11: Validity
The invalidity or unenforceability for any provision or provisions of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
Article 12: Entire Agreement
This Agreement sets forth the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein, and supersedes all
prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of any party hereto or any predecessor of any party hereto.
Article 13: Non-Assignability
This Agreement is entered into in consideration of the personal qualities of the
Employee and may not be, nor may any right or interest hereunder be, assigned by
him without the prior written consent of the Company.
Article 14: Choice of Law
This Agreement is to be governed by and interpreted under the laws of the State
of California without regard to the conflict of law principles.
Article 15: Resolution of Disputes
Any disputes or claims relating to this Agreement or the interpretation, breach,
termination or validity hereof shall be resolved through consultation. If the
dispute or claim cannot be resolved through consultation, the Parties shall
apply for arbitration to the American Arbitration Association in San Francisco,
California under the International Commercial Arbitration Rules of such
association. The arbitration decision shall be final and conclusive and binding
on the parties.
Article 16: Counterparts
This Agreement may be executed in one or more counterparts, each of which shall
be deemed to be an original but all of which other shall constitute one and the
same instrument.
Article 17: Severability
The expiration or termination of this Agreement shall not affect any provisions
hereof (such as "Protection of Confidential Information", "Covenant Not to
Compete", etc.) that shall survive the term of this Agreement.
Article 18: Miscellaneous
No provisions of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing and signed by the
Employee and such officers of the Company as be specifically designed by its
Board of Directors. No waiver by either party hereto 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 party shall be deemed a waiver of similar
or dissimilar provisions or conditions the same or at any prior or subsequent
time.
Article 19: Language
This Agreement shall be written in English. One original is to be held by
Company, and one original is to be held by Employee.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first-above written.
Confirmed and Agreed [with respect to
paragraphs 3(d) through 3(j) only]
SHENZHEN ▇▇▇▇▇▇.▇▇▇ INTERMOST CORPORATION
By: By:
EMPLOYEE:
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