Executive Employment Agreement for James A. Todd
Executive
Employment Agreement
for
Xxxxx X. Xxxx
THIS
AGREEMENT is made as of the 29th
day of
October, 2007, by and between Fushi International, Inc., a Nevada corporation
(“Company”), and Xxxxx X. Xxxx, an individual resident of North Carolina
(“Executive”).
WITNESSETH:
WHEREAS,
Company is engaged in the manufacture, distribution, and sale of bimetallic
wire
and strand products; and
WHEREAS,
Company entered into an LLC Membership Interest Purchase Agreement by and
between Fushi International, Inc. and Xxxxx X. Xxxxx, dated as of September
25,
2007;
WHEREAS,
the Executive is currently employed pursuant to an employment agreement dated
January 1, 2007 as a senior executive officer of the Copperweld Bimetallics,
LLC
(“Subsidiary”);
WHEREAS,
Company desires to employ Executive as a senior executive officer of the Company
as of the consummation of the Company’s purchase of limited liability company
interests in Subsidiary (the “Effective Date”), and Executive desires to accept
such employment on the terms and conditions hereinafter set forth;
NOW,
THEREFORE, in consideration of the mutual promises contained herein, the parties
agree as follows:
1. Employment.
Company
hereby employs Executive, and Executive hereby accepts employment on the terms
and conditions hereinafter set forth.
2. Term
of Employment.
The
initial term of employment under this Agreement shall be for a two-year period
commencing on the Effective Date and terminating on the second anniversary
of
the Effective Date (the “Term”); provided that such Term shall be automatically
extended for an additional two-year period upon the same terms and conditions
contained herein on the expiration date of the Initial Term and on any
additional term (each period being the “Term”) unless a written notice of
non-renewal is given by either party at least six full months prior to the
expiration date of the then current Term.
3. Nature
of Employment.
Executive is employed as Controller of the Company, and consistent with such
position, Executive shall, subject to the direction of the Chief Financial
Officer and the Board of Directors of the Company (“Board”), direct and manage
the affairs of the Company as assigned. Executive shall report to and be
responsible to the Chief Financial Officer of the Company. Executive agrees
to
serve as an executive officer or director of the Subsidiary and other
subsidiaries of the Company at the request of the Chief Financial Officer
without additional compensation. Executive shall be based at the location of
the
Subsidiary in Fayetteville, Tennessee. During the Term (including any extensions
or renewals thereof), Executive shall have no other employment or provide
services to any other person other than the Company and its subsidiaries without
the prior written consent of the Board. Accordingly, Executive agrees to devote
his full working time to the business of the Company; provided, however, nothing
herein contained shall restrict or prevent Executive from owning and dealing
in
stocks, bonds, securities, real estate, commodities, or other investment
properties for his own benefit or the benefit of his family. Further, nothing
herein contained shall restrict or prevent Executive, subject to the prior
approval of the Board, from serving on the board of directors of any entity,
including any charitable, religious or civic entity, which does not directly
or
indirectly compete with the Company and does not materially interfere with
his
duties and responsibilities with the Company.
4. Compensation.
(a) Annual
Base Salary.
Executive’s annual salary rate for the services rendered on behalf of the
Company and its subsidiaries during the Term shall be no less than $144,000
per
year, payable in equal bi-monthly installments. From time to time during the
Term, Executive’s base salary may be increased at the discretion of the Board,
but shall in no event be decreased from the amount of the base salary in effect
at that time. The Board shall review Executive’s base salary at least on an
annual basis.
(b) Annual
Cash Bonus.
In
addition to Executive’s base salary, Executive shall be entitled to participate
during the Term in an annual cash bonus plan generally available to senior
executives of the Company, including any cash bonus plans and equity incentive
plans sponsored by the Company. Any annual cash bonus shall be paid to Executive
within two and one-half (2.5) months following the end of the fiscal year in
which the Executive has a right to payment of the bonus.
(c) Equity
Award.
The
Board has approved a non-qualified stock option to be quoted to the Executive
in
the amount of 135,000 shares of common stock of the Company (“Shares”) as of the
Effective Date under the terms and conditions of the Fushi International, Inc.
2007 Stock Incentive Plan and a stock option agreement to be provided by the
Company. If Executive remains employed with the Company and its subsidiaries
on
the applicable vesting dates, the Shares shall vest in tranches on the dates
and
with the exercise price per Share set forth in Exhibit A attached
hereto.
5. Expenses.
Executive is authorized to incur reasonable expenses in connection with the
business of Company, including reasonable expenses for business travel and
similar items, in accordance with Company’s business expense policy in effect
from time to time. Company will reimburse Executive for all such expenses during
any calendar year upon the presentation by Executive, from time to time, of
an
itemized account of expenditures applicable to such calendar year, but in no
event later than the end of the calendar year following the calendar year in
which such expenditures occurred. Executive shall be authorized to travel in
business class and when not available, in first class, at Company expense,
for
air travel outside the 48 contiguous states of the United States or any air
travel over three hours in duration.
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6. Vacation.
Executive shall be entitled to paid vacations during each calendar year of
the
Term at such times and for such duration as may be determined by the Board,
taking into consideration the needs and requirements of Company for Executive’s
services; provided, however, the minimum paid vacation to which Executive shall
be entitled in any calendar year is three (3) weeks, and Executive is not
entitled to payment for any unused vacation as of the end of any calendar
year.
7. Additional
Benefits.
During
the Term, the Company shall pay for and provide Executive with a term life
insurance policy in an amount of $144,000 at standard, non-smoking insurance
premium rates (or such lesser amount that can be provided at the same cost
as
such policy). During the Term, Executive and, subject to the terms of the
applicable plan, his eligible dependents shall have the right to participate
in
any Executive employee pension or welfare benefit plans provided by Company
to
its U.S.-based officers generally, including any group life, hospitalization,
medical, dental, accidental death and disability, long-term disability income
replacement insurance, and retirement plans.
8. Death
During Employment.
If
Executive dies during the Term, Company shall pay to the estate of Executive
(i)
any accrued and unpaid salary and (ii) any accrued and unpaid bonus for any
prior fiscal year, and (iii) a pro rata amount of any bonus payable with respect
to the fiscal year of service in which death occurs (such pro rata amount
determined by multiplying the bonus that would have been paid for the full
fiscal year had the Executive survived by a ratio, the numerator of which is
the
number of days since the beginning of the fiscal year until the date of death
and the denominator of which is 365). This Agreement shall thereupon terminate,
and Company shall have no further obligation to the estate of
Executive.
9. Permanent
Disability During Employment.
If
Executive becomes permanently disabled during the Term, Company shall pay to
Executive any accrued and unpaid base salary to which he would otherwise be
entitled to the end of the month in which such permanent disability occurs.
Thereafter, the Executive shall continue to receive his then base salary, minus
any payments provided by the Company’s benefit plans (including disability
benefits paid pursuant to Section 7 above) and by any government sponsored
program, for a six (6) month period from the date of permanent disability.
This
Agreement shall thereupon terminate and Company shall have no further obligation
to Executive except as may be provided under Company’s long-term disability
plans during the term of such disability and any pro rata portion of any bonus
or incentive plan. Permanent disability for purposes of this Agreement shall
mean a physical or mental condition of Executive that renders Executive
incapable of performing the essential duties of his job and which condition
shall be medically determined to be of permanent duration as same is construed
under Company’s disability plans.
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10. Termination
for Cause.
Company
may terminate Executive’s employment at any time “for Cause.” The term “for
Cause” shall mean any act or failure to act on the part of the Executive which
constitutes: (i) an unauthorized use or disclosure by the Executive of the
Company’s confidential information or trade secrets, which use or disclosure
causes material harm to the Company; (ii) a material breach by the Executive
of
any agreement between the employee and the Company; (iii) a material failure
by
the Executive to comply with the Company’s written policies in compliance with
the laws of the United States or any state thereof; (iv) the Executive’s
indictment of, or plea of “guilty”
or
“no
contest”
to,
a
felony under the laws of the United States or any state thereof or any foreign
jurisdiction in which the Company conducts business which if occurring in the
United States would constitute a felony under its laws or the laws of any state
thereof; (v) the Executive’s gross negligence or willful misconduct that results
in material harm to the Company; or (vi) a continual failure by the Executive
to
perform assigned duties after receiving written notification of such failure
from the Board. Company shall be entitled to terminate the employment
relationship hereunder upon thirty (30) days’ prior written notice to Executive,
which notice shall state the reason for such termination, and during such notice
period Executive shall be removed from his duties and responsibilities. In
the
event of a termination for cause, Company shall pay Executive any accrued and
unpaid salary and any accrued and unpaid bonus for any prior fiscal year, and
Company shall have no further obligation or liability to Executive under this
Agreement.
11. Termination
For Good Reason.
If any
of the following events occurs after the Effective Date, the Executive may
resign from his employment for Good Reason by giving written notice of
resignation within 60 days following such event:
(a) a
material reduction in the scope of the Executive’s assigned duties and
responsibilities from those in effect under this Agreement on the Effective
Date
or the assignment of duties or responsibilities that are inconsistent with
the
Executive’s status in the Company;
(b) a
material reduction by the Company in the Executive’s base salary;
(c) the
Company’s requirement that the Executive be based anywhere other than
Fayetteville, Tennessee, if the Executive is required to spend more than two
days per week on a regular basis (other than normal business travel) at a
business location not within 50 miles of Fayetteville, Tennessee;
(d) the
failure by the Company to continue to provide the Executive with benefits
substantially similar to those specified in Section 7 of this Agreement unless
the new owner of the Company or the Company deem it necessary to change such
benefits in order to conform to applicable law; or
(e) any
material breach of this Agreement by the Company.
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Any
written notice of resignation for Good Reason shall describe in reasonable
detail the circumstances believed to constitute Good Reason. Notwithstanding
Executive’s provision of a notice of resignation for Good Reason, the Company
has a right to remedy or cure for a period of 30 days following its receipt
of
such notice the circumstances described by the Executive as constituting Good
Reason and Executive’s resignation shall become effective on the 31st day
following notice to the Company if the Company fails to remedy or cure the
circumstances constituting Good Reason within such 30-day period.
12. Severance
upon Termination Without Cause or for Good Reason.
If,
during the Term, Company terminates Executive’s employment with the Company and
its subsidiaries for any reason other than for Cause or Executive’s death or
disability, or Executive terminates his employment for Good Reason (not
including Company’s or Executive’s non-renewal of the Term) and Executive
executes and delivers to the Company a valid and effective release of all claims
against the Company and its affiliates in the form provided as Exhibit
B
hereto,
the Executive shall be entitled to receive (i) a lump sum cash payment in the
amount of any accrued and unpaid salary as of his date of termination, (ii)
a
lump sum cash payment equal to any accrued and unpaid bonus for any prior fiscal
year, (iii) a lump sum cash payment equal to the pro rata amount of any bonus
payable with respect to the fiscal year in which termination occurs (such pro
rata amount determined by multiplying the bonus that would have been paid for
the full fiscal year had the Executive continued to render service to the
Company as of the last day of the fiscal year multiplied by a ratio, the
numerator of which is the number of days since the beginning of the fiscal
year
until the date of termination and the denominator of which is 365), (iv) an
amount equal to the sum of (a) 50% of his then current annual base salary and
(b) 50% of the average annual cash bonus payments paid by the Company to the
Executive during the preceding three (3) fiscal years of the Company, and such
sum shall be payable in six (6) substantially equal monthly payments; provided
that each payment is intended to constitute a separate payment within the
meaning of Section 409A of the Internal Revenue Code of 1986, as amended
(“Code”). Further, the Company shall continue the medical and life insurance
benefits which Executive was receiving on the date of his termination, with
any
related costs to be paid by Executive being no more than what Executive had
been
paying prior to the date of termination, for a period of six (6) months after
the date of his termination; provided such continued coverage shall end on
the
date Executive has commenced employment elsewhere and becomes eligible for
participation in a similar type of benefit program of his successor employer.
Except as provided in this Section 12, Executive shall not be entitled to any
other severance benefits from the Company or any of its subsidiaries or
affiliates, and the Company shall have no other obligation or liability to
Executive under this Agreement.
13. Board/Committee
Resignation.
Upon
termination of Executive’s employment for any reason, Executive agrees to
resign, as of the date of such termination and to the extent applicable, from
the Board (and any committees thereof) and the Board of Directors (and any
committees thereof) of any of the Company’s subsidiaries or
affiliates.
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14. Property
of Company.
Executive agrees that upon the termination of his employment he will turn over
to Company all property and confidential information of Company which has come
into his possession while an Executive of Company.
15. Covenants
by Executive.
(a) Non-competition.
During
the Term under this Agreement including any renewals or extensions thereof,
and
for a period of twelve (12) months thereafter, Executive shall not, without
the
prior written approval of Company, directly or indirectly, engage in any
competitive activity as employer, employee, partner, stockholder, joint
venturer, consultant, director or otherwise, enter into or in any manner take
part in any business or other endeavor which would be in competition with
Company in the continental United States and mainland China, and to the extent
Executive has or has had direct involvement in the Company’s business activities
in any other jurisdiction, such other jurisdictions as such business is
conducted or, to the knowledge of Executive, proposed to be conducted at the
time of termination.
(b) Respect
for Economic Relationships.
Executive will not, during the term of his employment under this Agreement
including any renewals or extensions thereof, and for a period of eighteen
(18)
months thereafter, in any fashion, form, or manner, either directly or
indirectly, solicit, interfere with, or otherwise be involved with any customer
or person, firm or corporation regularly dealing with Company or directly or
indirectly interfere with, entice away, or otherwise materially adversely affect
its relationship with the Company or to diminish its business with the Company,
or to cause any other entity to employ any other employee of
Company.
(c) Validity
of Covenants.
Executive agrees that the covenants contained in this Section are reasonably
necessary to protect the legitimate interests of Company, are reasonable with
respect to time, territory and scope, and do not interfere with the interests
of
the public. Executive further agrees that the descriptions of the covenants
contained in this Section are sufficiently accurate and definite to inform
Executive of the scope of such covenants. Executive agrees that the Term,
increase in base salary represented by Section 4(a), and termination provisions
contained in Sections 2, 10, 11, and 12 above constitute fully adequate and
sufficient consideration for the covenants contained in Sections 15 and 17
of
this Agreement.
(d) Specific
Performance.
Executive agrees that a breach or violation of any of the covenants under this
Section will result in immediate and irreparable harm to Company in an amount
which will be impossible to ascertain at the time of the breach or violation
and
that the award of monetary damages will not be adequate relief to Company.
Therefore, the failure on the part of Executive to perform all of the covenants
established by this Section shall give rise to a right to Company to obtain
enforcement of this Section in a court of equity by a decree of specific
performance or other injunctive relief. This remedy, however, shall be
cumulative and in addition to any other remedy Company may have.
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(e) Survival
of Covenants.
The
provisions of this Section 15 shall survive the termination of this Agreement
and Executive’s employment for any reason.
16. Patent,
Trade and Trademark Assignment.
If
Executive creates, invents, designs, develops, contributes to or improves any
works of authorship, inventions, intellectual property, materials, documents
or
other work product (including without limitation, research, reports, software,
databases, systems, applications, presentations, textual works, content, or
audiovisual materials), either alone or with third parties, at any time during
Executive’s employment by the Subsidiary as Copperweld Bimetallics, LLC or by
the Company and within the scope of such employment and/or with the use of
any
Company resources, without additional consideration Executive hereby irrevocably
assigns, transfers and conveys to Company, to the maximum extent permitted
by
applicable law, all rights, title, and interest in and to any and all trade
secrets, inventions, letters patent, applications for letters patent, and
trademarks whether or not subject to state or federal trademark. Executive
further agrees to disclose promptly to Company any such works of authorship,
inventions, intellectual property, materials, documents or other work product,
and, at the request and expense of Company, to apply for letters patent or
registration thereon in every jurisdiction designated by Company. Executive
represents that he has complied with this provision as contained in his
employment agreement with Copperweld Bimetallics LLC, dated January 1,
2007.
17. Confidential
Information.
Executive agrees both during the Term and thereafter to keep secret and
confidential all information labeled confidential or not generally known which
is heretofore or hereafter acquired concerning the business and affairs of
Company, including without limitation, information regarding trade secrets,
proprietary processes, confidential business plans, market research data and
financial data, and further agrees not to disclose any such information to
any
person, firm, or corporation or use the same in any manner other than in
furtherance of the business or affairs of Company or unless such information
shall become public knowledge by other means Executive agrees that such
information is a valuable, special, and unique asset of Company. Upon the
termination of Executive’s employment with Company, Executive shall immediately
return to Company all documents, records, notebooks, and similar repositories
of
information relating to confidential information of Company and/or the
development of any inventions. The provisions of this Section 17 shall survive
the termination of this Agreement and Executive’s employment for any
reason.
18. Waiver
of Breach.
The
waiver by Company or Executive of any breach of a provision of this Agreement
shall not operate or be construed as, a waiver of any subsequent breach by
the
parties.
19. Notice.
All
notices, requests, demands, payments, or other communications hereunder shall
be
deemed to have been duly given if in writing and hand delivered or sent by
certified or registered mail, return receipt requested, to the appropriate
address indicated below or to such other address as may be given in a notice
sent to all parties hereto:
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Xxxxx
Xxxx
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Grand
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Dong
Zhi Men Xxx Xxxx Jie, Xxx 0
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Xxxxxxx,
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With
a copy to:
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Xx
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Xxxxxx Xxxxx Xxxxxx, Xxxxxxx
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to Executive, to:
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X. Xxxx
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20. Entire
Agreement.
This
Agreement supersedes any and all other understandings and agreements, either
oral or in writing, between the Executive, on one hand, and the Company, the
Subsidiary or any other subsidiary of the Company, on the other hand, with
respect to the subject matter hereof and constitutes the sole and only agreement
between such persons with respect to said subject matter. Each party to this
Agreement acknowledges that no representations, inducements, promises, or
agreements, oral or otherwise, have been made by any party or by anyone acting
on behalf of any party, which are not embodied herein, and that no agreement,
statement, or promise not contained in this Agreement shall be valid or binding
or of any force or effect. No change or modification of this Agreement shall
be
valid or binding upon the parties hereto unless such change or modification
is
in writing and is signed by the parties hereto.
21. Severability.
If any
one or more of the provisions contained in this Agreement shall be held by
a
court of competent jurisdiction to be invalid, illegal, or unenforceable in
any
respect for any reason, that invalidity, illegality, or unenforceability shall
not affect any other provisions hereof, and this Agreement shall be construed
as
if that invalid, illegal, or unenforceable provision had never been contained
herein.
22. Parties
Bound.
The
terms, promises, covenants, and agreements contained in this Agreement shall
apply to, be binding upon, and inure to the benefit of the parties hereto and
their respective successors and assigns; provided, however, that this Agreement
may not be assigned by Company or Executive without the prior written consent
of
the other party.
23. Settling
Disputes.
Subject
to Section 23(b), in any dispute, claim, question or difference arises with
respect to this Agreement or its performance, enforcement, breach, termination
or validity (a “Dispute”), the parties will use their reasonable efforts to
attempt to settle the Dispute.
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(a) Arbitration.
Subject
to Section 23(b), except as is expressly provided in this Agreement, if the
parties do not reach a solution within a period of 30 business days following
the first notice of the Dispute by any party to the other, then upon written
notice by any party to the other, the Dispute shall be finally settled by
arbitration in accordance with the following procedures:
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The
matter shall be determined by mandatory arbitration in Chattanooga,
Tennessee by a Tennessee corporate lawyer who is rated “AV” by Martindale
Xxxxxxx Law Directory, who is selected by agreement of the parties
to the
dispute and shall be conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. If the
parties
do not agree on the selection of an arbitrator, the arbitrator will
be
selected by the American Arbitration Association based on the criteria
stated above. The parties to the dispute shall pay on a pro rata
basis all
fees and expenses charged by the American Arbitration Association
for its
services in selecting an arbitrator. The arbitrator shall base his
or her
award on applicable law and judicial precedent and, unless all parties
agree otherwise, shall include in such award the findings of fact
and
conclusions of law upon which the award is based. Judgment on the
award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof.
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The
award of the arbitrator will be final and binding as to all the parties
to
the claim, dispute, or controversy and will not be subject to appeal,
review, or re-examination by a court or the arbitrator, except for
fraud,
perjury, manifest clerical error, or evident partiality or misconduct
by
the arbitrator that prejudices the rights of a party to the arbitration.
The award of the arbitrator may include an award of any damages other
than
treble, special, punitive, exemplary, or consequential damages, and,
pursuant to the pleading of any party to the dispute, any court having
jurisdiction may enter a judgment of any award rendered in the
arbitration. The arbitrator shall award to the prevailing party in
the
arbitration, if any, as determined by the arbitrator, all costs incurred
by it in connection with the arbitration. Except as otherwise required
by
law, the arbitrator and the parties to the arbitration shall treat
the
arbitration proceeding as strictly confidential and shall not disclose
the
existence, content, or results of the arbitration without the advance
written consent of every party to the
arbitration.
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If
any party fails to proceed with arbitration as provided herein or
unsuccessfully seeks to stay such arbitration, or fails to comply
with any
arbitration award, the other party shall be entitled to be awarded
costs,
including reasonable attorneys’ fees, paid or incurred by such other party
in successfully compelling such arbitration or defending against
the
attempt to stay, vacate or modify such arbitration
award.
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(b) Arbitration
Does Not Apply.
Nothing
in this shall limit or prevent a party from seeking to enforce the performance
of this Agreement by injunction or specific performance upon application to
a
court of competent jurisdiction without proof of actual damage (and without
the
requirement of posting a bond or other security).
24. Set
Off.
Company’s obligation to pay Executive the amounts provided and to make
arrangements provided hereunder shall be subject to set-off, counterclaim or
recoupment of amounts owed by Executive to the Company or its
affiliates.
25. Withholding
Taxes.
Company
may withhold from any amounts payable under this Agreement such Federal, state
and local taxes as may be required to be withheld pursuant to any applicable
law
or regulation.
26. Section
409A of the Code.
It is
the intention of the parties to this Agreement that no payment or entitlement
pursuant to this Agreement will give rise to any adverse tax consequences to
the
Executive under Section 409A of the Code and Department of Treasury regulations
and other interpretative guidance thereunder, including that issued after the
date hereof (collectively, “Section 409A”). The Agreement shall be interpreted
to that end and, consistent with that objective and notwithstanding any
provision herein to the contrary, Executive and the Company agree to amend
this
Agreement in order to avoid, if practicable, the application of such taxes
or
interest under Section 409A and in a manner to preserve the economic benefits
of
this Agreement from Executive’s perspective at no additional cost to the
Company. Further, no effect shall be given to any provision herein in a manner
that reasonably could be expected to give rise to adverse tax consequences
under
that provision. Notwithstanding any other provision herein, if the Executive
is
a “specified employee” (as defined in, and pursuant to, Treasury Regulation
1.409A-1(i)) on the date of termination, no payment of compensation under this
Agreement shall be made to the Executive during the period lasting six (6)
months from the date of termination unless the Company determines that there
is
no reasonable basis for believing that making such payment would cause the
Executive to suffer any adverse tax consequences pursuant to Section 409A.
If
any payment to the Executive is delayed pursuant to the foregoing sentence,
such
payment instead shall be made on the first business day following the expiration
of the six-month period referred to in the prior sentence. Moreover, in the
event the Executive is required to execute a Release, no amount payable pursuant
to Section 12 that is subject to Section 409A shall be paid prior to the
expiration of the revocation period without regard to whether the Executive
waives such revocation right prior to the expiration of such period. Although
the Company shall consult with the Executive in good faith regarding
implementation of this Section 26, neither the Company nor its employees or
representatives shall have liability to the Executive with respect to any
additional taxes that the Executive may be subject to in the event that any
amounts under this Agreement are determined to violate Section
409A.
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27. Executive
Representation.
Executive hereby represents to the Company that the execution and delivery
of
this Agreement by Executive and the Company and the performance by the Executive
of Executive’s duties hereunder shall not constitute breach of, or otherwise
contravene, the terms of any employment agreement or other agreement or policy
to which Executive is a party or otherwise bound.
28. Cooperation.
Executive shall provide Executive’s reasonable cooperation in connection with
any action or proceeding (or any appeal from any action or proceeding) which
relates to events occurring during Executive’s employment hereunder. This
provision shall survive any termination of this Agreement or Executive’s
employment.
29. Captions.
Captions to the Sections of this Agreement are inserted solely for the
convenience of the parties, are not a part of this Agreement, and in no way
define, limit, extend or describe the scope thereof or the intent of any of
the
provisions.
30. Counterparts.
This
Agreement may be signed in counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the
same
instrument.
31. Applicable
Law.
This
Agreement shall be construed and the legal relationship between the parties
determined in accordance with the laws of the State of Tennessee without
application of its choice of law rules.
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IN
WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
as
of the day and year first above written, the corporate party acting through
duly
authorized officers.
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Title: Chief Financial Officer | |
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EXECUTIVE | |
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/s/
Li Fu
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/s/ Xxxxx X. Xxxx | |
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Xxxxx X. Xxxx | |
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EXHIBIT
A
STOCK
OPTION VESTING AND EXERCISE PRICE SCHEDULE
Note:
The
number of Shares that will vest and be exercisable on each of the vesting dates,
provided Executive remains employed with the Company and its subsidiaries on
such vesting date,
and
the applicable exercise prices per Share for such Shares are set forth below.
The
Exercise Price per Share for each tranche of Shares for each vesting date shall
be $16.44 plus the additional amount, if any, given below applicable to such
tranche:
|
Number
of Shares
|
Vesting
Date
|
Exercise
Price per Share
|
|
16,875
|
January
25, 2008
|
$0
|
|
16,875
|
April
25, 2008
|
$0
|
|
16,875
|
July
25, 2008
|
$1.50
|
|
16,875
|
October
25, 2008
|
$1.50
|
|
16,875
|
January
25, 2009
|
$3.00
|
|
16,875
|
April
25, 2009
|
$3.00
|
|
16,875
|
July
25, 2009
|
$4.50
|
|
16,875
|
October
25, 2009
|
$4.50
|
13
EXHIBIT
B
RELEASE
This
RELEASE ("Release") dated as of ___________, 20__ between Fushi International,
Inc., on, a Nevada corporation (the “Company”), and Xxxxx X. Xxxx (the
“Executive”).
WHEREAS,
the Company and the Executive previously entered into an employment agreement
dated _______ __, 2007 (the “Employment Agreement”); and
WHEREAS,
the Executive's employment with the Company has terminated effective ______
__,
20__;
NOW,
THEREFORE, in consideration of the premises and mutual agreements contained
herein and in the Employment Agreement, the Company and the Executive agree
as
follows:
1. The
Executive, on his own behalf and on behalf of his heirs, estate and
beneficiaries, does hereby release the Company, and in such capacities, any
of
its subsidiaries or affiliates, and each past or present officer, director,
agent, employee, shareholder, and insurer of any such entities, from any and
all
claims made, to be made, or which might have been made of whatever nature,
whether known or unknown, from the beginning of time, including those that
arose
as a consequence of his employment with the Company, or arising out of the
severance of such employment relationship, or arising out of any act committed
or omitted during or after the existence of such employment relationship, all
up
through and including the date on which this Release is executed, including,
but
not limited to, those which were, could have been or could be the subject of
an
administrative or judicial proceeding filed by the Executive or on his behalf
under federal, state or local law, whether by statute, regulation, in contract
or tort, and including, but not limited to, every claim for front pay, back
pay,
wages, bonus, fringe benefit, any form of discrimination (including but not
limited to, every claim of race, color, sex, religion, national origin,
disability or age discrimination under the Civil Rights Act of 1866; the Age
Discrimination in Employment Act; the Americans with Disabilities Act; the
Family and Medical Leave Act, the Civil Rights Act of 1964, Title VII, as
amended; the Civil Rights Act of 1991; the Employee Retirement Income Security
Act of 1974, as amended; the Equal Pay Act; the Worker Adjustment and Retraining
Notification Act; the North Carolina Retaliatory Employment Discrimination
Act;
Tennessee Human Rights Act or any other federal, state or local law relating
to
employment or discrimination in employment, or otherwise), wrongful termination,
emotional distress, pain and suffering, breach of contract, compensatory or
punitive damages, interest, attorney's fees, reinstatement or reemployment.
If
any arbitrator or court rules that such waiver of rights to file, or have filed
on his behalf, any administrative or judicial charges or complaints is
ineffective, the Executive agrees not to seek or accept any money damages or
any
other relief upon the filing of any such administrative or judicial charges
or
complaints. The Executive relinquishes any right to future employment with
the
Company and the Company shall have the right to refuse to re-employ the
Executive, in each case without liability of the Executive or the Company.
The
Executive acknowledges and agrees that even though claims and facts in addition
to those now known or believed by him to exist may subsequently be discovered,
it is his intention to fully settle and release all claims he may have against
the Company and the persons and entities described above, whether known, unknown
or suspected. Employee does not waive his right to file a charge with the EEOC
or participate in an investigation conducted by the EEOC; however, Employee
expressly waives his right to monetary or other relief should any administrative
agency, including but not limited to the EEOC, pursue any claim on Employee’s
behalf.
14
2. The
Company and the Executive acknowledge and agree that the release contained
in Paragraph 1 does not, and shall not be construed to, release or limit the
scope of any existing obligation of the Company and/or any of its subsidiaries
or affiliates (i) to indemnify the Executive for his acts as an officer or
director of Company in accordance with the bylaws of Company or the law; (ii)
to
the Executive and his eligible, participating dependents or beneficiaries under
any existing group welfare (excluding severance), equity, or retirement plan
of
the Company in which the Executive and/or such dependents are participants,
or
(iii) to the Executive with respect to any severance payable pursuant to Section
12 of the Employment Agreement.
3. The
Executive acknowledges that he has been provided at least 21 days to review
the
Release and has been advised to review it with an attorney of his choice. In
the
event the Executive elects to sign this Release prior to this 21 day period,
he
agrees that it is a knowing and voluntary waiver of his right to wait the full
21 days. The Executive further understand that he has 7 days after the signing
hereof to revoke it by so notifying the Company in writing, such notice to
be
received by the Chief Executive Officer of the Company within the 7 day period.
The Executive further acknowledge that he has carefully read this Release,
knows
and understands its contents and its binding legal effect. The Executive
acknowledge that by signing this Release, he does so of his own free will and
act and that it is his intention that he be legally bound by its
terms.
IN
WITNESS WHEREOF, the parties have executed this Release on the date first above
written.
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FUSHI
INTERNATIONAL, INC.
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By:
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Name: |
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Title:
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XXXXX
X. XXXX
________________________
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15
