EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of
December 1, 2002 (the "Effective Date") by and between Xx. Xxxxxxx Xxxx (the
"Executive") and US-Sino Gateway, Inc., a California corporation (the
"Company").
WHEREAS, the Company believes that the Executive's service, experience,
and knowledge are valuable to the Company in connection with its business; and
WHEREAS, the Company desires to employ the Executive, and the Executive
desires to be employed by the Company, as its Chairman of the Board of
Directors, President and Chief Executive Officer.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
1. EMPLOYMENT. The Company hereby employs the Executive and the
Executive accepts such employment upon the terms and conditions hereinafter set
forth.
2. TERM OF EMPLOYMENT. Subject to the provisions of Section 6, the term
of the Executive's employment pursuant to this Agreement shall commence on and
as of the Effective Date and shall terminate on December 31, 2005 (the "Term").
Subject to the provisions of Section 6, this Agreement will be automatically
renewed after December 31, 2005 for an additional three year term unless either
party gives notice to the other, at least 90 days prior to the expiration of the
Term, that the party desires to renegotiate this Agreement. If an agreement is
not reduced to writing and executed by the parties before the end of the Term,
then this Agreement shall expire.
3. DUTIES; EXTENT OF SERVICE. During the Executive's employment under
this Agreement, the Executive (i) shall serve as an employee of the Company with
the titles and positions of Chairman of the Board of Directors, President and
Chief Executive Officer, reporting to the Board of Directors of the Company, and
shall have such executive responsibilities as the Board of Directors of the
Company shall from time to time designate, PROVIDED THAT, in all cases the
Executive shall be subject to the oversight and supervision of the Board of
Directors of the Company in the performance of his duties, and (ii) shall render
all services reasonably incident to the foregoing. The Executive hereby accepts
such employment, agrees to serve the Company in the capacities indicated, and
agrees to use the Executive's best efforts in, and shall devote the Executive's
full working time, attention, skill and energies to, the advancement of the
interests of the Company and its subsidiaries and the performance of the
Executive's duties and responsibilities hereunder.
4. SALARY AND BONUS.
(a) SALARY. During the Executive's employment under this
Agreement, the Company shall pay the Executive a salary (the "Salary"). The
Company will review the Salary periodically (and no less than annually) for the
purpose of determining whether it will be increased. The Salary shall be no less
than $192,000 per annum through June 30, 2003 and $270,000 per annum from July
1, 2003 through June 30, 2004. Prior to July 1, 2004, the Company must review
the Salary for the purpose of determining whether it will be increased for the
period beginning on July 1, 2004 and ending on December 31, 2005. The Salary
shall be subject to withholding under applicable law, shall be prorated for
partial years and shall be payable in periodic installments not less frequently
than monthly in accordance with the Company's usual practice for its executive
officers as in effect from time to time.
(b) BONUS. The Company recognizes that as a start-up, it is
unlikely to realize substantial revenues during the fiscal year ending December
31, 2003 (the "Fiscal Year") and has projected that its net loss will be -36%
for the Fiscal Year. As an incentive to the Executive to render extraordinary
performance during the Fiscal Year and to exceed the Company's projections, the
Executive shall receive a performance bonus (the "Performance Bonus") if the
financial targets established for the Fiscal Year, as set forth in the Company's
business plan, are exceeded so that the Company does not incur a loss for the
Fiscal Year. The Performance Bonus shall be based on revenues received during
the Fiscal Year from sales ("Actual Sales Revenues") and on gross margin for the
Fiscal Year. For purposes of this Section, "gross margin" shall mean gross
profit divided by total revenue. The Performance Bonus, if earned, will be
calculated as follows:
(i) If the Company's net profit for the Fiscal Year
is 0 because gross profit and total revenue are equal (which
gross margin would be more than 50% higher than the gross
margin projected for the Fiscal Year), the Executive shall
receive a Performance Bonus in an amount equal to 2% of Actual
Sales Revenues. If gross margin exceeds 0 but does not exceed
10% for the Fiscal Year, the Executive shall receive an
additional Performance Bonus in an amount equal to 2% of
Actual Sales Revenues. If gross margin exceeds 10% for the
Fiscal Year, the Executive shall receive an additional
Performance Bonus in an amount equal to 20% of that portion of
gross margin that exceeds 10%.
(ii) The portion of the Performance Bonus calculated
on Actual Sales Revenues shall be calculated as follows: (A)
if the Company's Actual Sales Revenues exceed the sales
revenues estimated in the business plan ("Estimated Sales
Revenues") in any amount up to 50% of Estimated Sales
Revenues, the Executive shall receive a bonus of 1% of the
Actual Sales Revenues that exceed the Estimated Sales
Revenues; (B) if the Company's Actual Sales Revenues exceed
the Estimated Sales Revenues in any amount from 50.1% to 100%
of Estimated Sales Revenues, the Executive shall receive an
additional bonus of 1.25% of the Actual Sales Revenues that
exceed the Estimated Sales Revenues; and (C) if the Company's
Actual Sales Revenues exceed 100% of the Estimated Sales
Revenues, the Executive shall receive an additional bonus of
1.5% of the Actual Sales Revenues that exceed the Estimated
Sales Revenues.
(iii) The Performance Bonus shall be calculated
within 90 days of the end of the Fiscal Year. The Performance
Bonus calculation as determined by the Board of Directors of
the Company shall be final and binding. Payment of the
Performance Bonus, if any is earned, shall occur within 30
days after the calculation is completed or at such other time
agreed to by the Company and the Executive.
(iv) Any bonus for the Fiscal Years following
December 31, 2003 shall be determined by the Company in
conjunction with a review of the Executives Salary.
5. BENEFITS.
(a) REGULAR BENEFITS. During the Executive's employment under
this Agreement, the Executive shall be entitled to participate in any and all
medical, pension, dental and life insurance plans and disability income plans,
retirement arrangements and other employment benefits as in effect from time to
time for executive officers of the Company generally. Such participation shall
be subject to (i) the terms of the applicable plan documents (including, as
applicable, provisions granting discretion to the Board of Directors of the
Company or any administrative or other committee provided for therein or
contemplated thereby) and (ii) generally applicable policies of the Company.
(b) VACATION. During the Executive's employment under this
Agreement, the Executive shall receive paid vacation annually in accordance with
the Company's practices for executive officers, as in effect from time to time.
(c) EXPENSES. The Company shall reimburse the Executive for
all reasonable business expenses incurred by the Executive during the
Executive's employment hereunder to the extent in compliance with the Company's
business expense reimbursement policies in effect from time to time and upon
presentation by the Executive of such documentation and records as the Company
shall from time to time require.
(d) TAXATION OF PAYMENTS AND BENEFITS. The Company shall
undertake to make deductions, withholdings and tax reports with respect to
payments and benefits under this Agreement to the extent that it reasonably and
in good faith believes that it is required to make such deductions, withholdings
and tax reports. Payments under this Agreement shall be in amounts net of any
such deductions or withholdings. Nothing in this Agreement shall be construed to
require the Company to make any payments to compensate the Executive for any
adverse tax effect associated with any payments or benefits or for any deduction
or withholding from any payment or benefit.
(e) EXCLUSIVITY OF SALARY AND BENEFITS. The Executive shall
not be entitled to any payments or benefits other than those provided under this
Agreement. Compliance with the provisions of this Section 5 shall in no way
create or be deemed to create any obligation, express or implied, on the part of
the Company or any of its affiliates with respect to the continuation of any
particular benefit or other plan or arrangement maintained by them or their
subsidiaries as of or prior to the date hereof or the creation and maintenance
of any particular benefit or other plan or arrangement at any time after the
date hereof.
6. TERMINATION AND TERMINATION BENEFITS. Notwithstanding the provisions
of Section 2, the Executive's employment under this Agreement shall terminate
under the following circumstances set forth in this Section 6.
(a) TERMINATION BY THE COMPANY FOR CAUSE. The Executive's
employment under this Agreement may be terminated for Cause without further
liability on the part of the Company other than for accrued but unpaid Salary
through the date of termination effective immediately upon written notice to the
Executive. "Cause" shall mean the following:
(i) the commission by the Executive of any act of
embezzlement, fraud, larceny or theft on or from the Company
or an affiliate of the Company;
(ii) the commission by the Executive of, or
indictment of the Executive for a felony or any misdemeanor,
which misdemeanor involves moral turpitude, deceit, dishonesty
or fraud;
(iii) failure to perform, or materially poor
performance of, the Executive's duties and responsibilities
assigned or delegated under this Agreement, or any material
misconduct or violation of the Company's policies, in either
case, which continues for a period of 60 days after written
notice given to the Executive; or
(iv) a material breach by the Executive of any of the
covenants, terms or provisions of this Agreement or any
agreement between the Company and the Executive regarding
confidentiality, non-solicitation or assignment of inventions.
(b) TERMINATION BY EXECUTIVE. The Executive's employment under
this Agreement may be terminated by the Executive by written notice to the Board
of Directors at least 120 days prior to such termination.
(c) TERMINATION BY THE COMPANY WITHOUT CAUSE. Subject to the
payment of Termination Benefits pursuant to Section 6(d), the Executive's
employment under this Agreement may be terminated without Cause by the Company
upon 30 days written notice to the Executive.
(d) CERTAIN TERMINATION BENEFITS. Unless otherwise
specifically provided in this Agreement or otherwise required by law, all
compensation and benefits payable to the Executive under this Agreement shall
terminate on the date of termination of the Executive's employment under this
Agreement. Notwithstanding the foregoing, in the event of termination of the
Executive's employment with the Company pursuant to Section 6(c) above, the
Company shall pay to the Executive the lesser of (i) the Executive's Salary for
the remainder of the Term, payable in the manner set forth in Section 4(a) (but
in no event shall such amount be less than six months Salary) or (ii) one year's
Salary payable in the manner set forth in Section 4(a) (the "Severance
Benefits"). The parties hereto agree that the Severance Benefits are to be in
full satisfaction, compromise and release of any claims arising out of any
termination of the Executive's employment pursuant to Section 6(c), and such
amounts shall be contingent upon the Executive's delivery of a general release
of such claims upon termination of employment in a form reasonably satisfactory
to the Company, it being understood that no Severance Benefits shall be provided
unless and until the Executive determines to execute and deliver such release.
(e) DEATH; DISABILITY. Upon the death of the Executive, or
upon the permanent disability (as defined below) of the Executive continuing for
a period in excess of 180 consecutive days, all obligations of the Company under
this Agreement shall immediately terminate other than any obligation of the
Company with respect to earned but unpaid Salary and earned benefits
contemplated hereby to the extent accrued or vested through the date of
termination. As used herein, the terms "permanent disability" or "permanently
disabled" shall mean the inability of the Executive, by reason of injury,
illness or other similar cause, to perform a major part of his duties and
responsibilities in connection with the conduct of the business and affairs of
the Company, as determined reasonably and in good faith by the Company.
(f) CONTINUING OBLIGATIONS. Notwithstanding termination of
this Agreement as provided in this Section 6 or any other termination of the
Executive's employment with the Company, the Executive's obligations under
Section 7 hereof shall survive any termination of the Executive's employment
with the Company at any time and for any reason.
7. NON-SOLICITATION; CONFIDENTIALITY; PROPRIETARY RIGHTS.
(a) NON-SOLICITATION. The Executive agrees that he shall not,
during the term of this Agreement, and for a period of one year thereafter,
solicit any employee of the Company to terminate such employee's employment with
the Company, or agree to hire any such employee or former employee of the
Company (unless at least 12 months have passed since the termination of such
employee's employment with the Company).
(b) CONFIDENTIAL INFORMATION. As used in this Agreement, the
term "Confidential Information" shall mean information belonging to the Company
(for purposes of this Section 7 including all predecessors of the Company) of
value to the Company or with respect to which Company has right in the course of
conducting its business and the disclosure of which could result in a
competitive or other disadvantage to the Company. Confidential Information
includes information, whether or not patentable or copyrightable, in written,
oral, electronic or other tangible or intangible forms, stored in any medium,
including, by way of example and without limitation, trade secrets, ideas,
concepts, designs, configurations, specifications, drawings, blueprints,
diagrams, models, prototypes, samples, flow charts processes, techniques,
formulas, software, improvements, inventions, domain names, data, know-how,
discoveries, copyrightable materials, marketing plans and strategies, sales and
financial reports and forecasts, customer lists, studies, reports, records,
books, contracts, instruments, surveys, computer disks, diskettes, tapes,
computer programs and business plans, prospects and opportunities (such as
possible acquisitions or dispositions of businesses or facilities) which have
been discussed or considered by the management of the Company. Confidential
Information includes information developed by the Executive in the course of the
Executive's employment by the Company, as well as other information to which the
Executive may have access in connection with the Executive's employment.
Confidential Information also includes the confidential information of others
with which the Company has a business relationship. Notwithstanding the
foregoing, Confidential Information does not include information in the public
domain, unless due to breach of the Executive's duties under Section 7(c).
(c) CONFIDENTIALITY. In the course of performing services
hereunder on behalf of the Company and its affiliates, the Executive has had and
from time to time will have access to Confidential Information. The Executive
agrees (i) to hold the Confidential Information in strict confidence, (ii) not
to disclose the Confidential Information to any person (other than in the
regular business of the Company or its affiliates), and (iii) not to use,
directly or indirectly, any of the Confidential Information for any purpose
other than on behalf of the Company and its affiliates. All documents, records,
data, apparatus, equipment and other physical property, whether or not
pertaining to Confidential Information, that are furnished to the Executive by
the Company or are produced by the Executive in connection with the Executive's
employment will be and remain the sole property of the Company. Upon the
termination of the Executive's employment with the Company for any reason and as
and when otherwise requested by the Company, all Confidential Information
(including, without limitation, all data, memoranda, customer lists, notes,
programs and other papers and items, and reproductions thereof relating to the
foregoing matters) in the Executive's possession or control, shall be
immediately returned to the Company.
(d) THIRD PARTY AGREEMENTS AND RIGHTS. The Executive hereby
confirms that the Executive is not bound by the terms of any agreement with any
previous employer or other party that restricts in any way the Executive's use
or disclosure of information or the Executive's engagement in any business. The
Executive represents to the Company that the Executive's execution of this
Agreement, the Executive's employment with the Company and the performance of
the Executive's proposed duties for the Company will not violate any obligations
the Executive may have to any such previous employer or other party. In the
Executive's work for the Company, the Executive will not disclose or make use of
any information in violation of any agreements with or rights of any such
previous employer or other party, and the Executive will not bring to the
premises of the Company any copies or other tangible embodiments of non-public
information belonging to or obtained from any such previous employment or other
party.
(e) LITIGATION AND REGULATORY COOPERATION. During and after
the Executive's employment, the Executive shall cooperate fully with the Company
in the defense or prosecution of any claims or actions now in existence or which
may be brought in the future against or on behalf of the Company that relate to
events or occurrences that transpired while the Executive was employed by the
Company. The Executive's full cooperation in connection with such claims or
actions shall include, but not be limited to, being available to meet with
counsel to prepare for discovery or trial and to act as a witness on behalf of
the Company at mutually convenient times. During and after the Executive's
employment, the Executive also shall cooperate fully with the Company in
connection with any investigation or review of any federal, state or local
regulatory authority as any such investigation or review relates to events or
occurrences that transpired while the Executive was employed by the Company. The
Company shall reimburse the Executive for any reasonable out-of-pocket expenses
incurred in connection with the Executive's performance of obligations pursuant
to this Section 7(e).
(f) INVENTIONS. The Executive recognizes that the Company and
its affiliates possess a proprietary interest in all of the Confidential
Information and have the exclusive right and privilege to use, protect by
copyright, patent or trademark, or otherwise exploit the processes, ideas and
concepts described therein to the exclusion of the Executive, except as
otherwise agreed between the Company and the Executive in writing. The Executive
expressly agrees that any products, inventions, discoveries or improvements made
by the Executive in the course of the Executive's employment, including any of
the foregoing which is based on or arises out of the Confidential Information,
shall be the property of and inure to the exclusive benefit of the Company. The
Executive further agrees that any and all products, inventions, discoveries or
improvements developed by the Executive (whether or not able to be protected by
copyright, patent or trademark) during the course of his employment, or
involving the use of the time, materials or other resources of the Company or
any of its affiliates, shall be promptly disclosed to the Company and shall
become the exclusive property of the Company, and the Executive shall execute
and deliver any and all documents necessary or appropriate to implement the
foregoing.
(g) BUSINESS OPPORTUNITIES. The Executive agrees, while he is
employed by the Company, to offer or otherwise make known or available to it, as
directed by the Board of Directors of the Company and without additional
compensation or consideration, any business prospects, contracts or other
business opportunities that the Executive may discover, find, develop or
otherwise have available to the Executive in the information technology industry
and further agrees that any such prospects, contacts or other business
opportunities shall be the property of the Company.
(h) ACKNOWLEDGMENT. The Executive acknowledges that the
provisions of this Section 7 are an integral part of the Executive's employment
arrangements with the Company.
8. INTEGRATION. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
agreements between the parties with respect to any related subject matter.
9. ASSIGNMENT; SUCCESSORS AND ASSIGNS, ETC. Neither the Company nor the
Executive may make any assignment of this Agreement or any interest herein
without the prior written consent of the other party; provided that the Company
may assign its rights under this Agreement without the consent of the Executive
in the event that the Company shall effect a reorganization, consolidate with or
merge into any other corporation, partnership, organization or other entity, or
transfer all or substantially all of its properties or assets to any other
corporation, partnership, organization or other entity. This Agreement shall
inure to the benefit of and be binding upon the Company and the Executive, their
respective successors, executors, administrators, heirs and permitted assigns.
10. ENFORCEABILITY. If any portion or provision of this Agreement
(including, without limitation, any portion or provision of any section of this
Agreement) shall to any extent be declared illegal or unenforceable by a court
of competent jurisdiction, then the remainder of this Agreement, or the
application of such portion or provision in circumstances other than those as to
which it is so declared illegal or unenforceable, shall not be affected thereby,
and each portion and provision of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
11. WAIVER. No waiver of any provision hereof shall be effective unless
made in writing and signed by the waiving parry. The failure of any party to
require the performance of any term or obligation of this Agreement, or the
waiver by any party of any breach of this Agreement, shall not prevent any
subsequent enforcement of such term or obligation or be deemed a waiver of any
subsequent breach.
12. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and delivered
in person or sent by a nationally recognized overnight courier service or by
registered or certified mail, postage prepaid, return receipt requested, to the
Executive at the last address the Executive has filed in writing with the
Company or, in the case of the Company, at 0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxxx
000, Xxxx, Xxxxxxxxxx 00000.
13. AMENDMENT. This Agreement may be amended or modified only by a
written instrument signed by the Executive and by a duly authorized
representative of the Company.
14. GOVERNING LAW. This contract shall be construed under and be
governed in all respects by the laws of the State of California, without giving
effect to the conflict of laws principles thereof.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be taken to be
an original and all of which taken together shall constitute one and the same
document.
16. CERTAIN DEFINITIONS. For purposes of this Agreement, the term
"person" means an individual, corporation, limited liability company,
partnership, entity, association, trust or any unincorporated organization; a
"subsidiary" means any corporation more than 50 percent of whose outstanding
voting securities, or any limited liability company, partnership, joint venture
or other entity more than 50 percent of whose total equity interest, is directly
or indirectly owned by such person; and an "affiliate" of a person shall mean,
with respect to a person or entity, any person or entity which directly or
indirectly controls, is controlled by, or is under common control with such
person or entity.
17. ARBITRATION. Any controversy, dispute or claim of whatever nature
arising out of, in connection with or relating to this Agreement or the
interpretation, meaning, performance, breach or enforcement thereof, including
any controversy, dispute or claim based on contract, tort, or statute, and
including without limitation claims relating to the validity of this Agreement
or relating to termination of employment, shall be resolved at the request of
either party to this Agreement, by final and binding arbitration conducted at a
location determined by the arbitrator in Los Angeles, California, administered
by and in accordance with the then existing Rules of Practice and Procedure of
J*A*M*S/Endispute, Inc.. (Jo Ao Mo S), and judgment upon any award rendered by
the arbitrator(s) may be entered by any State or Federal Court having
jurisdiction thereof. Either party may commence such proceeding by giving notice
to the other party in the manner provided in Section 12 of this Agreement. Upon
filing a demand for arbitration, all parties to the Agreement will have right of
discovery to the maximum extent provided by law for actions tried before a
court, and both agree that in the event of an arbitration, disputes as to
discovery shall be determined by the arbitrator(s). The arbitrator(s) in any
such proceeding shall apply California substantive law and the California
Evidence Code to the proceeding. The arbitrator(s) shall have the power to grant
all legal and equitable remedies (provisional and final) and award damages
provided by California law. The arbitrator(s) shall prepare in writing and
provide to the parties an award including findings of fact and conclusions of
law. The arbitrator(s) shall not have the power to commit errors of law or legal
reasoning, and the award may be vacated or corrected pursuant to California Code
of Civil Procedure ss.ss.1286.2 or 1286.6 for any such error. The Company shall
pay all fees of the arbitrator, and each party shall bear its or his expenses,
costs and attorney fees relating to the arbitration and recovery under any order
and/or judgment rendered therein. In any such proceeding general counsel for the
Company may represent the Company regardless of whether such counsel has
rendered advice to the Executive in the past unless prohibited by law or rules
of the California State Bar Association. The parties hereto hereby submit to the
exclusive jurisdiction of the courts of the State of California for the purpose
of enforcement of this agreement to arbitrate and any and all awards or orders
rendered pursuant thereto.
Should any party seek a provisional remedy to enforce such
party's rights under this Agreement, such action shall be brought exclusively in
the Superior Court of the State of California in and for the County of Los
Angeles ("Superior Court") pursuant to California Code of Civil Procedure
ss.1281.8. Service in any such action may be effected by providing process to
the other party in the manner provided in Section 13. The Superior Court in such
action shall apply California substantive law. Each party shall bear its or his
expenses, costs and attorney fees relating to such proceeding and enforcement of
or securing recovery under any order and/or judgment rendered therein. The
parties hereto hereby submit to the exclusive jurisdiction of the Superior Court
for the purpose of securing such provisional remedies to enforce this Agreement
and any and all orders and judgments rendered pursuant thereto.
18. INDEMNIFICATION. The Company shall indemnify the Executive and hold
him harmless from and against all claims, losses, damages, expenses or
liabilities (including expenses of defense and settlement) based upon or in any
way arising from or connected with his employment by the Company or its
affiliates, to the maximum extent permitted by law, provided that such
indemnification shall not extend to actions against the Executive by or on
behalf of the Company. Unless the Company shall have provided counsel to the
Executive in such matter compensated by the Company, to the extent permitted by
law, and subject to the above-stated exceptions, the Company shall advance to
the Executive or his attorney any expenses necessary in connection with the
defense of any action or claim which is brought if indemnification cannot be
determined to be available prior to the conclusion of such action or the
investigation of such claim.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
COMPANY:
US-Sino Gateway, Inc.
By:
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Xxxxxxx Xxxx
EXECUTIVE:
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Xxxxxxx Xxxx
