BEIJING CHENGZHI QIANMAO CONCRETE CO., LTD CHAIRMAN AND CHIEF EXECUTIVE OFFICER EMPLOYMENT AGREEMENT
BEIJING CHENGZHI QIANMAO
CONCRETE CO., LTD
THIS
AGREEMENT is made as of December 19, 2008, between Beijing Chengzhi Qianmao
Concrete Co., Ltd. (the "Company", Address: ▇▇.▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ Town, Da Xing District，Beijing ), a
domestic company organized under the law of the People's Republic of China (the
"PRC"), and ▇▇▇▇ ▇▇▇▇
("Executive", ID No.:
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇).
In
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Employment
The
Company shall employ Executive, and Executive hereby accepts employment with the
Company, upon the terms and conditions set forth in this Agreement for a period
beginning on the date hereof and ending on the fifth anniversary date (the “Employment Period”); and this
Agreement shall automatically be renewed on the same terms and conditions set
forth herein as modified from time to time by the parties hereto for additional
one-year periods as soon as the expiration of the Employment Period, unless the
Company or Executive gives the other party written notice of the election not to
renew the Employment Period at least 30 days prior to any such renewal
date.
2. Position and
Duties
(a) During
the Employment Period, Executive shall be appointed or seconded to the Company
to serve as the Chairman and Chief Executive Officer and shall have the normal
duties, responsibilities, functions and authority of the Chairman and Chief
Executive Officer, subject to the power and authority of the Board of Directors
to expand or limit such duties, responsibilities, functions and authority within
the scope of duties, responsibilities, functions and authority associated with
the position of the Chairman and Chief Executive Officer. During the
Employment Period, Executive shall render such administrative, financial and
other executive and managerial services to the Company and its affiliates which
are consistent with Executive's position as the Board of Directors may from time
to time direct.
(b) During
the Employment Period, Executive shall perform his duties, responsibilities and
functions to the Company hereunder to the best of his abilities in a diligent,
trustworthy, professional and efficient manner and shall comply with the
Company’s policies and procedures in all material respects. In
performing his duties and exercising his authority under the Agreement,
Executive shall support and implement the business and strategic plans approved
from time to time by the Board of Directors and shall support and cooperate with
the Company’s efforts to expand their businesses and operate profitably and in
conformity with the business and strategic plans approved by the Board of
Directors.
(c) Executive’s
position shall be based at the current principal executive
offices in Beijing, PRC, or any other location of the Company
in the PRC as mutually agreed by the Board of Directors and
Executive.
3. Compensation and
Benefits
(a) During
the Employment Period, Executive's base salary shall be RMB 840,000 per annum or
such other rate as the Board of Directors may determine from time to time (as
adjusted from time to time, the "Base
Salary"), which
salary shall be payable by the Company in regular installments in accordance
with the Company's general payroll practices (in effect from time to
time). The Company shall also purchase social insurances and provide
welfare and benefits to Executive according to the applicable national and local
labor laws and regulations.
(b) In
addition to the Base Salary, the Board may, in its sole discretion, award a
bonus (the “Performance
Bonus”) to
Executive with respect to each fiscal year during the Employment Period. The
reference amount for Performance Bonus shall be equal to 25% of the Base
Salary. The actual amount of the Performance Bonus awarded shall be
dependent upon the degree to which certain financial targets of the Company, as
established annually by the Board of Directors, are achieved.
(c) In
addition to the Base Salary and any bonuses payable to Executive pursuant to
Section (a) and Section (b), Executive shall be entitled to the following
benefits during the Employment Period, unless otherwise modified by the Board of
Directors: (i) a fully maintained Company car and a driver; (ii) annual leave of
20 days plus Chinese national holidays..
(d) All
amounts payable to Executive as compensation hereunder shall be subject to all
required and customary withholding by the Company.
4. Working
Hours
Executive
shall work under a flexible working hour scheme after the Company obtains the
relevant approval from the competent labor authority. Unless the
applicable laws and regulations expressly provide otherwise, Executive shall not
be entitled to any overtime pay.
5. Working
Environment and Employment Safety
(a)
The Company shall provide the Executive with a working environment that complies
with national regulations with respect to workplace health and
safety.
(b)
The Company shall provide Executive with necessary working conditions and set up
other necessary employee protection mechanism in accordance with the national
and local regulations.
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6. Termination
The
Company may terminate the employment of Executive before the Employment Period
expires immediately upon issuing a written notice to Executive after occurrence
of any of the following events:
(i) Executive
has materially violated any of the Company's rules or policies;
(ii) Executive
has committed an act of gross negligence or graft which causes substantial
damage or adverse effect to the Company's interests;
(iii) Executive
has been charged or convicted with criminal liabilities in accordance with
the laws.
7. Confidential
Information
(a) Obligation to Maintain
Confidentiality. Executive acknowledges that the continued success of the
Company depends upon the use and protection of a large body of confidential and
proprietary information. All of such confidential and proprietary
information now existing or to be developed in the future will be referred to in
this Agreement as "Confidential
Information." Confidential Information includes, without
specific limitation, the information, observations and data obtained by him
during the course of his performance under this Agreement concerning the
business and affairs of the Company and its affiliates, information concerning
acquisition opportunities in or reasonably related to the Company's or its
affiliates' business or industry of which Executive becomes aware during the
Employment Period, the persons or entities that are current, former or
prospective suppliers or customers of any one or more of them during Executive's
course of performance under this Agreement, as well as development, transition
and transformation plans, methodologies and methods of doing business,
strategic, marketing and expansion plans, including plans regarding planned and
potential sales, financial and business plans, employee lists and telephone
numbers, locations of sales representatives, new and existing programs and
services, prices and terms, customer service, integration processes,
requirements and costs of providing service, support and
equipment. Therefore, Executive agrees that during the Employment
Period and at anytime thereafter he shall not disclose to any unauthorized
person or use for his own account any of such Confidential Information without
Board of Directors 's prior written consent, unless and to the extent that any
Confidential Information (i) becomes generally known to and available for
use by the public other than as a result of Executive's acts or omissions to act
or (ii) is required to be disclosed pursuant to any applicable law or court
order. Executive agrees to deliver to the Company at the end of the
employment period, or at any other time the Company may request in writing, all
memoranda, notes, plans, records, reports and other documents (and copies
thereof) relating to the business of the Company or its affiliate (including,
without limitation, all Confidential Information) that he may then possess or
have under his control.
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(b) Ownership of Intellectual
Property. Executive agrees to make prompt and full disclosure
to the Company or its affiliate, as the case may be, all ideas, discoveries,
trade secrets, inventions, innovations, improvements, developments, methods of
doing business, processes, programs, designs, analyses, drawings, reports, data,
software, firmware, logos and all similar or related
information (whether or not patentable and whether or not reduced to
practice) that relate to the Company's or its affiliate's actual or anticipated
business, research and development, or existing or future products or services
and that are conceived, developed, acquired, contributed to, made, or reduced to
practice by Executive (either solely or jointly with others) while employed by
the Company and for a period of one (1) year thereafter (collectively, "Work
Product"),
provided that such period of one year only applies to the inventions, utility
models and designs which are related to Executive's duties and responsibilities
to the Company. The ownership of all rights under intellectual
property laws of any work falling within the definition of Work Product shall
vest in the Company.
(c) Third Party
Information. Executive understands that the Company will receive from
third parties confidential or proprietary information ("Third
Party Information") subject to a duty on the
Company's part to maintain the confidentiality of such information and to use it
only for certain limited purposes. During the Employment Period and
thereafter, and without in any way limiting the provisions of Section 7(a)
above, Executive will hold Third Party Information in the strictest confidence
and will not disclose to anyone (other than personnel of the Company or its
affiliates who need to know such information in connection with their work for
the Company or such affiliates) or use, except in connection with his work for
the Company or its affiliates, Third Party Information unless expressly
authorized by the Board of Directors in writing.
8. Executive's
Representations
Executive
hereby represents and warrants to the Company that (i) the execution, delivery
and performance of this Agreement by Executive do not and shall not conflict
with, breach, violate or cause a default under any contract, agreement,
instrument, order, judgment or decree to which Executive is a party or by which
he is bound, and (ii) upon the execution and delivery of this Agreement by the
Company, this Agreement shall be the valid and binding obligation of Executive,
enforceable in accordance with its terms. Executive hereby
acknowledges and represents that he has consulted with independent legal counsel
regarding his rights and obligations under this Agreement and that he fully
understands the terms and conditions contained herein.
9. Survival
Sections
7, 9, 15, 16 and 18 inclusive, shall survive and continue in full force in
accordance with their terms notwithstanding the expiration or termination of the
Employment Period.
10. Notices
Any
notice provided for in this Agreement shall be in writing and shall be either
personally delivered, sent by reputable overnight courier service or mailed by
first class mail, return receipt requested, to the recipient at the address
below indicated:
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Notices
to Executive:
▇▇▇▇
▇▇▇▇
Address:
o
Tel: ▇▇▇▇▇▇▇▇▇▇▇▇
Fax:
▇▇▇▇▇▇▇▇▇▇▇▇
Recipient:
▇▇▇ ▇▇▇ Lan
Notices
to the Company:
Beijing
Chengzhi Qianmao Concrete Co., Ltd
Address:
▇▇.▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ Town, Da Xing District，Beijing
Tel: ▇▇▇▇▇▇▇▇▇▇▇▇
Fax:
▇▇▇▇▇▇▇▇▇▇▇▇
Recipient:
▇▇▇ ▇▇▇ Lan
or such
other addresses or to the attention of such other person as the recipient party
shall have specified by prior written notice to the sending
party. Any notice under this Agreement shall be deemed to have been
given when so delivered, sent or mailed.
11. Severability
Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any applicable law or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement or any
action in any other jurisdiction, but this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision had never been contained herein.
12. Complete
Agreement
This
Agreement, those documents expressly referred to herein and other documents of
even date herewith embody the complete agreement and understanding among the
parties and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
13. No Strict
Construction
The
language used in this Agreement shall be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
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14. Counterparts
This
Agreement may be executed in separate counterparts, each of which is deemed to
be an original and all of which taken together constitute one and the same
agreement.
15. Choice of
Law
All
issues and questions concerning the construction, validity, enforcement and
interpretation of this Agreement and the exhibits and schedules hereto shall be
governed by, and construed in accordance with, the applicable laws of the
People's Republic of China, without giving effect to any choice of law or
conflict of law rules or provisions.
16. Arbitration
Each
party hereto agrees that any claim or dispute ("Claim") arising out of or relating
to the rights and obligations acknowledged and agreed to in this Agreement and
the employment of Executive by the Company (including, without limitation,
disputes and claims regarding employment discrimination, sexual harassment,
termination and discharge), whether such Claim arose or the facts on which such
Claim is based occurred prior to or after the execution and delivery of adoption
of this Agreement shall be resolved according to the following
procedures:
(a) consultation
between Executive and the Company to resolve the Claim;
(b) if
no resolution with respect to a Claim is reached through consultation within
thirty (30) days after the commencement of the same, either party may, within
sixty (60) days after the occurrence of the Claim, submit the Claim to a local
labor dispute arbitration tribunal for arbitration; and
(c) either
party may appeal the arbitration award rendered by such local labor dispute
arbitration tribunal to a competent People's Court within fifteen (15) days
after the issuance of such award.
17. Amendment and
Waiver
The
provisions of this Agreement may be amended or waived only with the prior
written consent of a majority of the Board of Directors (excluding Executive) on
the one hand and Executive on the other hand, and no course of conduct or course
of dealing or failure or delay by any party hereto in enforcing or exercising
any of the provisions of this Agreement (including, without limitation, the
Company’s right to terminate the Employment Period for Cause) shall affect the
validity, binding effect or enforceability of this Agreement or be deemed to be
an implied waiver of any provision of this Agreement.
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18. Executive's
Cooperation
During
the Employment Period and thereafter, Executive shall cooperate with the Company
and its affiliates in any internal investigation, any administrative, regulatory
or judicial investigation or proceeding or any dispute with a third party as
reasonably requested by the Company (including, without limitation, Executive
being available to the Company upon reasonable notice for interviews and factual
investigations, appearing at the Company's request to give testimony without
requiring service of a subpoena or other legal process, volunteering to the
Company all pertinent information and turning over to the Company all relevant
documents which are or may come into Executive's possession, all at times and on
schedules that are reasonably consistent with Executive's other permitted
activities and commitments).
19. Language
This
Agreement is executed in English and Chinese. The Chinese version of this
Agreement shall prevail over the English version in the event of conflicts or
inconsistencies between the two language versions.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date
first written above.
Beijing
Chengzhi Qianmao Concrete Co., Ltd
/Seal/
Authorized
Representative
/Signature/
▇▇▇▇
▇▇▇▇
/Signature/