EMPLOYMENT AGREEMENT
Exhibit
10.69
THIS EMPLOYMENT AGREEMENT
(“Agreement”),
is dated as of June 28, 2010, by and between Xxxxxx Xxxxxxxxx Group Coal Coke
Co., Ltd., a PRC Company (the “Company”), and Wang
Xinshun (the “Executive”).
WITNESSETH
WHEREAS, the Company desires
to employ the Executive, and the Executive desires to accept such employment, on
the terms and conditions set forth herein, effective as of the date
hereof.
NOW, THEREFORE, in
consideration of the mutual promises, representations and warranties set forth
herein, and for other good and valuable consideration, it is hereby agreed as
follows:
1. Employment. The Company hereby agrees to
employ the Executive, and the Executive hereby accepts such employment, upon the
terms and conditions set forth herein. Executive’s primary office location shall
be in Anyang, but Executive shall be expected to perform many work-related
duties in other locations in China and in the United States as
well.
2. Term. This Agreement shall
commence on the date hereof (the “Commencement Date”)
and terminate on the fifth anniversary thereof, unless sooner terminated as
provided in Section 8 of this Agreement (the “Employment
Period”).
3. Position
and Duties.
(a)
During the Employment Period, the Executive shall serve as the
Chief Executive Officer of the Company and shall have such duties and
responsibilities as are consistent with such office, and as otherwise may be
prescribed by the Board of Directors of Birch Branch, Inc. or its successor (the
“Board”) from
time to time.
(b)
During the Employment Period, the Executive shall perform and
discharge his duties and responsibilities well and faithfully and in accordance
with the terms and conditions of this Agreement, and shall devote his best
talents, efforts and abilities to the performance of his duties
hereunder.
(c) During
the Employment Period, unless otherwise approved by the Board, the Executive
shall devote substantially all of his business time, attention and energy to
performing his duties and responsibilities hereunder and shall have no other
employment except by the affiliates of the Company and no other outside business
activities whatsoever; provided, however, that the
Executive shall not be precluded from making passive investments which do not
require the devotion of any significant time or effort.
4. Compensation. The Executive acknowledges
and agrees that he is not entitled to compensation, whether cash, options or
other compensation, to the extent he is entitled to or receives such
compensation under his employment agreement with Birch Branch, Inc. or its
successor.
5. Benefits.
The Executive acknowledges and agrees that, except the statutory social
insurances and benefits required under the laws and regulation of China, he is
not entitled to benefits to the extent he is entitled to or receives such
benefits under his employment agreement with Birch Branch, Inc. or its
successor.
6. Vacation. The Executive shall be
entitled to paid vacation during each full calendar year of the Employment
Period of a duration provided by the Company generally to its Executives (and a
pro rata portion thereof for any portion of the Employment Period that is less
than a full calendar year); provided, however, that no
single vacation may exceed two consecutive weeks in duration.
7. Termination.
The employment of the Executive hereunder may be terminated prior to the
expiration of the Employment Period in the manner described in this
Section
(a) Termination upon
Death. The employment of the Executive hereunder shall terminate
immediately upon his death.
(b) Termination upon
Disability. The Company shall have the right to terminate this Agreement
during the continuance of any Disability of the Executive, as hereafter defined,
upon fifteen (15) days’ prior notice to the Executive during the continuance of
the Disability.
(c) Termination by the Company
Without Good Cause. The Company shall have the right to terminate the
Executive’s employment hereunder without Good Cause (as such term is defined
herein) by written notice to the Executive.
(d) Termination by the Company
for Good Cause. The Company shall have the right to terminate the
employment of the Executive for Good Cause by written notice to the Executive
specifying the particulars of the circumstances forming the basis for such Good
Cause.
(e) Voluntary Resignation by the
Executive. The Executive shall have the right to voluntarily resign his
employment hereunder for other than Good Reason (as such term is defined herein)
by written notice to the Company.
(f) Resignation by the Executive
for Good Reason. The Executive shall have the right to terminate his
employment for Good Reason by written notice to the Company specifying the
particulars of the circumstances forming the basis for such Good
Reason.
(g) Termination Date. The
“Termination
Date” is the date as of which the Executive’s employment with the Company
terminates. Any notice of termination given pursuant to the provisions of this
Agreement shall specify the Termination Date.
(h) Certain Definitions.
For purposes of this Agreement, the following terms shall have the following
meanings:
(i) “Disability” shall
mean an inability by the Executive to perform a substantial portion of the
Executive’s duties hereunder by reason of physical or mental incapacity or
disability for a total of one hundred twenty (120) days or more in any
consecutive period of three hundred and sixty five (365) days, as determined by
the Board in its good faith judgment.
(ii) “Good Cause” as used
herein, shall mean (A) the commission of a felony, or a crime involving moral
turpitude, or the commission of any other act or omission involving dishonesty,
disloyalty, or fraud with respect to the Company; (B) conduct tending to bring
the Company or any of its affiliates into substantial public disgrace or
disrepute; (C) substantial and repeated failure to perform duties as reasonably
directed by the Board; (D) gross negligence or willful misconduct with respect
to the Company or any of its affiliates; or (E) any material misrepresentation
by the Executive under this Agreement; provided, however, that such
Good Cause shall not exist unless the Company shall first have provided the
Executive with written notice specifying in reasonable detail the factors
constituting such Good Cause, as applicable, and such factors shall not have
been cured by the Executive within thirty (30) days after such notice or such
longer period as may reasonably be necessary to accomplish the
cure.
(iii) “Good Reason” means
the occurrence of any of the following events:
(A) the
assignment to the Executive of any duties inconsistent in any material respect
with the Executive’s then position (including status, offices, titles and
reporting relationships), authority, duties or responsibilities, or any other
action or actions by the Company which when taken as a whole results in a
significant diminution in the Executive’s position, authority, duties or
responsibilities, excluding for this purpose any isolated, immaterial and
inadvertent action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive;
(B) a
material breach by the Company of one or more provisions of this Agreement,
provided that such Good Reason shall not exist unless the Executive shall first
have provided the Company with written notice specifying in reasonable detail
the factors constituting such material breach and such material breach shall not
have been cured by the Company within thirty (30) days after such notice or such
longer period as may reasonably be necessary to accomplish the
cure;
(C) any
purported termination by the Company of the Executive’s employment otherwise
than as expressly permitted by this Agreement.
(D) A
Change in Control whereby:
(i) A
person (other than a person who is an officer or director of the Company on the
Effective Date) becomes, or obtains the right to become, the beneficial owner of
the Company’s securities having fifty one percent (51%) or more of the combined
voting power of then outstanding securities of the Company;
(ii) The
Company consummates a merger in which it is not the surviving
entity;
(iii) All
or substantially all of the Company’s assets are sold;
(iv) The
Company’s shareholders approve the dissolution or liquidation of the
Company.
8. Obligations
of Company on Termination or Resignation. If you are terminated by the
Company without Good Cause, if you resign from the Company for Good Reason, you
will be entitled to receive as severance (a) the Base Salary for a period of
twelve months, and (b) all options granted but not yet vested shall immediately
vest and shall be exercisable.
9. Covenants
of the Executive.
(a) Confidentiality.
(i) The
Executive recognizes that the Executive’s position with the Company is one of
trust and confidence. The Executive acknowledges that, the Company has devoted
substantial time and effort and resources to developing the Company’s business
and clients, and that during the course of the Executive’s employment with the
Company, the Executive will necessarily become acquainted with confidential
information relating to the clients or potential clients (including names,
addresses and telephone numbers) of the Company, and the Company’s investments
or potential investments in and/or financings and/or potential financings to be
provided to these clients or potential clients, and trade secrets, processes,
methods of operation and other information, which the Company regards as
confidential and in the nature of trade secrets (collectively, “Confidential
Information”). The Executive acknowledges and agrees that the
Confidential Information is of incalculable value to the Company and that the
Company would suffer damage if any of the Confidential Information was
improperly disclosed.
(ii) The
Executive recognizes that because of the opportunities and support so provided
to the Executive and because of Executive’s access to the Company’s Confidential
Information, Executive would be in a unique position to divert business from the
Company and to commit irreparable damage to the Company were Executive to be
allowed to divulge any of the Confidential Information.
(iii) The
Executive covenants and agrees that the Executive will not, at any time during
or after the termination of the Executive’s relationship with the Company,
regardless of whether termination is initiated by either Executive or the
Company, reveal, divulge, or make known to any person, firm or corporation, any
Confidential Information made known to the Executive or of which the Executive
has become aware, regardless of whether developed, prepared, devised or
otherwise created in whole or in part by the efforts of the Executive, except
and to the extent that such disclosure is necessary to carry out the Executive’s
duties for the Company. The Executive further covenants and agrees that the
Executive shall retain all Confidential Information in trust for the sole
benefit of the Company, and will not divulge or deliver or show any Confidential
Information to any unauthorized person including, without limitation, any other
employer of the Executive, and the Executive will not make use thereof in an
independent business related to the business of the Company; provided, however, that the
Executive has no obligation, express or implied, to refrain from using or
disclosing to others any such knowledge or information which is or hereafter
shall become available to the public other than through disclosure by the
Executive.
(iv) The
Executive agrees that, upon termination of the Executive’s employment with the
Company, for any reason whatsoever, or for no reason, and at any time, the
Executive shall return to the Company all papers, documents and other property
of the Company placed in the Executive’s custody or obtained by the Executive
during the course of the Executive’s employment which relate to Confidential
Information, and the Executive will not retain copies of any such papers,
documents or other property for any purpose whatsoever.
(b) Non-Competition. The
Company is in the business of processing coal, manufacturing coke and the
by-products of coke (the "Business"). Executive acknowledges that during his
employment with the Company he will become familiar with trade secrets and other
information relating to the Company and its Business, and that his services have
been and will be of special, unique and extraordinary value to the Company.
Therefore, Executive agrees that, during the Employment Period, and for one (1)
year thereafter (collectively, the “Non-Compete Period”), he will not directly
or indirectly own, manage, control, participate in, consult with, render
services for, or in any other manner engage in any business, or as an investor
in or lender to any business (in each case including, without limitation, on his
own behalf or on behalf of another entity) which competes either directly or
indirectly with the Company in the Business, in any market in which the Company
is operating, or is considering operating at any given point in time during the
Employment Period, or as of the end of the Employment Period if the Employment
Period has ended. Nothing in this Section 9(b) will be deemed to prohibit the
Executive from being a passive owner of less than 5% of the outstanding stock of
a corporation engaged in a competing business as described above of any class
which is publicly traded, so long as Executive has no direct or indirect
participation in the business of such corporation.
(c) Work Product. The
Executive agrees that all innovations, inventions, improvements, developments,
methods, designs, analyses, drawings, reports, and all similar or related
information which relate to the Company’s Business, or any business which the
Company has taken significant action to pursue, and which are conceived,
developed or made by the Executive during the Employment Period (any of the
foregoing, hereinafter “Work Product”),
belong to the Company. The Executive will promptly disclose all such Work
Product to the Board and perform all actions reasonably requested by the Board
(whether during or after the Employment Period) to establish and confirm such
ownership (including, without limitation, assignments, consents, powers of
attorney and other instruments).
(d) No Conflict. The
Executive represents and warrants to the Company that the Executive is not a
party to or bound by any employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity or any other agreement
which would prevent or limit his ability to enter into this Agreement or perform
his obligations hereunder.
10. Severability.
Should any provision of this Agreement be held, by a court of competent
jurisdiction, to be invalid or unenforceable, such invalidity or
unenforceability shall not render the entire Agreement invalid or unenforceable,
and this Agreement and each other provision hereof shall be enforceable and
valid to the fullest extent permitted by law.
11. Successors
and Assigns.
(a) This
Agreement and all rights under this Agreement are personal to the Executive and
shall not be assignable other than by will or the laws of descent. All of the
Executive’s rights under the Agreement shall inure to the benefit of his heirs,
personal representatives, designees or other legal representatives, as the case
may be.
(b) This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns. Any entity succeeding to the business of the Company by
merger, purchase, consolidation or otherwise shall assume by contract or
operation of law the obligations of the Company under this
Agreement.
12. Governing
Law. This Agreement shall be construed in accordance with and governed by
the laws of China.
13. Arbitration.
Any controversy or claim arising out of or relating to this Agreement or the
breach hereof shall be settled by arbitration by and in accordance with the laws
and regulations of China.
14. Modification;
Waiver.
(a) This
Agreement may be amended or waived if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by the Company and the
Executive or in the case of a waiver, by the party against whom the waiver is to
be effective. Any such waiver shall be effective only to the extent specifically
set forth in such writing.
(b) No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
15. Headings
and Word Meanings. Headings and titles in this
Agreement are for convenience of reference only and shall not control the
construction or interpretation of any provisions hereof. The words “herein,”
“hereof,” “hereunder” and words of similar import, when used anywhere in this
Agreement, refer to this Agreement as a whole and not merely to a subdivision in
which such words appear, unless the context otherwise requires. The singular
shall include the plural unless the context otherwise requires.
16. Counterparts.
This Agreement may be signed in any number of counterparts, each of which shall
be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument. This Agreement shall become effective when each
party hereto shall have received counterparts hereof signed by the other party
hereto.
IN WITNESS WHEREOF, the
Company has caused this Agreement to be duly executed in its corporate name by
one of its officers duly authorized to enter into and execute this Agreement,
and the Executive has manually signed his name hereto, all as of the day and
year first above written.
Xxxxxx
Xxxxxxxxx Group Coal Coke Co., Ltd.
Authorized
representative (Signature):
(Signature):/s/
Wang Xxxxxxx
Xxxx
Xinshun