Attached files
file | filename |
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8-K - CBAK Energy Technology, Inc. | v206993_8k.htm |
EX-10.1 - CBAK Energy Technology, Inc. | v206993_ex10-1.htm |
EMPLOYMENT
AGREEMENT
This EMPLOYMENT AGREEMENT (the “Agreement”), is dated
as of December 27, 2010 by and between China BAK Battery, Inc., a corporation
incorporated under the laws of the State of Nevada, U.S. (the “Company”)
and Ke Marcus Cui (the “Employee”).
RECITALS
A. The
Company has appointed the Employee as its Interim Chief Financial
Officer and the Employee has accepted such appointment for the
term of Employment (as defined below).
B. In
connection with such appointment, the Company and the Employee desire to enter
into this Agreement setting forth the terms and conditions of the
Employment.
AGREEMENT
The parties hereto agree as
follows:
1.
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POSITION
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The
Employee hereby accepts a position of Interim Chief Financial Officer (the
“Employment”)
of the Company.
2.
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TERM
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Subject
to the terms and conditions of this Agreement, the initial term of the
Employment shall commence on December 10, 2010 (the “Effective Date”),
until a
permanent CFO is named, unless terminated sooner pursuant to the terms of
this Agreement. Upon expiration of the initial term, the Employment shall be
automatically extended for successive one-year terms unless either party gives
the other party hereto a one-month prior written notice to terminate the
Employment prior to the expiration of such term or unless terminated sooner
pursuant to the terms of this Agreement.
3.
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PROBATION
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No
probationary period.
4.
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DUTIES AND
RESPONSIBILITIES
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The
Employee’s duties at the Company will include all jobs assigned by the Company’s
Board of Directors (the “Board”) or officers senior to the
Employee.
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The
Employee shall devote all of his or her working time, attention and skills
to the performance of his or her duties at the Company and shall
faithfully and diligently serve the Company in accordance with this
Agreement, the articles of association and by-laws of the Company, and the
guidelines, policies and procedures of the Company approved from time to
time by the Board.
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The
Employee shall use his or her best endeavor to perform his or her duties
hereunder. The Employee shall not, without the prior written
consent of the Board, become an employee of any entity other than the
Company and any subsidiary or affiliate of the Company, and shall not be
concerned or interested in any business or
entity that competes with that carried on by the Company (any such
business or entity, a “Competitor”),
provided that nothing in this clause shall preclude the Employee from
holding less than 5% of any class of equity securities of any Competitor
that are listed on any securities exchange or recognized securities market
anywhere. The Employee shall notify the Company in writing of
his or her interest in such shares or securities in a timely manner and
with such details and particulars as the Company may reasonably
require.
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5.
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LOCATION
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The
Employee will be based in Shenzhen China. The Company reserves the
right to transfer or send the Employee to any location in China or elsewhere in
accordance with its operational requirements.
6.
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COMPENSATION AND
BENEFITS
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(a)
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Cash
Compensation. The Employee’s cash compensation
(including salary) shall be provided by the Company pursuant to Schedule A
hereto, subject to annual review and adjustment by the
Company.
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(b)
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Equity
Incentives. To the extent the Company adopts and
maintains a share incentive plan, the Employee will be eligible for
participating in such plan pursuant to the terms thereof as determined by
the Company.
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(c)
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Benefits. The
Employee is eligible for participation in any standard employee benefit
plan of the Company that currently exists or may be adopted by the Company
in the future, including, but not limited to, any retirement plan, life
insurance plan, health insurance plan, disability insurance plan and
travel/holiday plan. If the Employee elects, the Company shall
pay the reasonable cost of membership for the Employee, his or her spouse
and dependent children not greater than twenty-one (21) years of age, for
a private patient medical plan, with a reputable medical expense insurance
scheme as the Company shall decide from time to
time.
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7.
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TERMINATION OF THE
AGREEMENT
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(a)
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By the
Company.
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(i) The
Company may terminate the Employment for cause, at any time, without
notice or remuneration, if (1) the Employee is convicted or pleads guilty
to a felony or to an act of fraud, misappropriation or embezzlement, (2)
the Employee has been negligent or acted dishonestly to the detriment of
the Company, or (3) the Employee has engaged in actions amounting to
misconduct or failed to perform his or her duties hereunder and such
failure continues after the Employee is afforded a reasonable opportunity
to cure such failure.
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(ii) In
addition, the Company may terminate the Employment without cause, at any
time, upon one-month written notice. The Company shall have the
option, in its sole discretion, to make the Employee’s termination
effective at any time prior to the end of such notice period as long as
the Company pays the Employee all compensation to which the Employee is
entitled up through the last day of the one-month notice
period.
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(iii) If
the Employee’s employment is terminated by the Company without cause (other than
by reason of disability or death), the Employee shall receive, within 30 days
following termination, a lump sum payment of (i) any earned but unpaid salary
through the date of termination, and (ii) any earned but unpaid bonus for any
calendar year preceding the year in which the termination occurs. In
addition, subject to the Employee having completed the probation period, if any,
and the Employee’s compliance with Sections 8, 9 and 10 below, the Employee
shall receive continued payments of his or her salary: (i) for one
month following a termination effective prior to the first anniversary of the
Effective Date; (ii) for two months following a termination effective prior to
the second anniversary of the Effective Date; (iii) for three months following a
termination effective prior to the third anniversary of the Effective Date; and
(iv) for three months following a termination effective at any time after the
third anniversary of the Effective Date. The Employee shall have no
further rights to any compensation (including any salary or bonus) or any other
benefits under this Agreement. If the Employee is terminated for
cause pursuant to this Section 7(a), he or she shall be entitled to receive only
his or her salary through the date of termination and he shall have no further
rights to any compensation (including any salary or bonus) or any other benefits
under this Agreement.
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(iv) All
other benefits, if any, due to the Employee following a termination with
or without cause shall be determined in accordance with the plans,
policies and practices of the Company; provided, however, that
the Employee shall not participate in any severance plan, policy or
program of the Company.
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(b)
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By the
Employee. The Employee may terminate the Employment at
any time with a one-month prior written notice to the Company, if (1)
there is a material reduction in the Employee’s authority, duties and
responsibilities, or (2) there is a material reduction in the Employee’s
annual salary before the next annual salary review. In
addition, the Employee may resign prior to the expiration of the Agreement
if such resignation is approved by the Board of Directors of the Company
(the “Board”) or an alternative arrangement with respect to the Employment
is agreed to by the Board. Upon a termination by the Employee
pursuant to this Section 7(b), the Employee shall be entitled to his or
her salary through the date of such termination and he shall have no
further rights to any compensation (including any salary or bonus) or any
other benefits under this Agreement. All other benefits, if
any, due to the Employee following termination pursuant to this Section
7(b) shall be determined in accordance with the plans, policies and
practices of the Company; provided, however, that
the Employee shall not participate in any severance plan, policy or
program of the Company.
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8.
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CONFIDENTIALITY AND
NONDISCLOSURE
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In the
course of the Employee’s services, the Employee may have access to the Company
and/or the Company’s client’s and/or prospective client’s trade secrets and
confidential information, including but not limited to those embodied in
memoranda, manuals, letters or other documents, computer disks, tapes or other
information storage devices, hardware, or other media or vehicles, pertaining to
the Company and/or the Company’s client’s and/or prospective client’s
business. All such trade secrets and confidential information are
considered confidential. All materials containing any such trade
secret and confidential information are the property of the Company and/or the
Company’s client and/or prospective client, and shall be returned to the Company
and/or the Company’s client and/or prospective client upon expiration or earlier
termination of this Agreement. The Employee shall not directly or
indirectly disclose or use any such trade secret or confidential information,
except as required in the performance of the Employee’s duties in connection
with the Employment, or pursuant to applicable law.
During
and after the Employment, the Employee shall hold the Trade Secrets in strict
confidence; the Employee shall not disclose these Trade Secrets to anyone except
other employees of the Company who have a need to know the Trade Secrets in
connection with the Company’s business. The Employee shall not use
the Trade Secrets other than for the benefits of the Company.
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“Trade Secrets”
means information deemed confidential by the Company, treated by the
Company or which the Employee knows or ought reasonably to have known to
be confidential, and trade secrets, including without limitation designs,
processes, pricing policies, methods, inventions, conceptions, technology,
technical data, financial information, corporate structure and know-how,
relating to the business and affairs of the Company and its subsidiaries,
affiliates and business associates, whether embodied in
memoranda, manuals, letters or other documents, computer disks, tapes or
other information storage devices, hardware, or other media or
vehicles. Trade Secrets do not include information generally
known or released to the public domain through no fault of
yours.
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This
Section 8 shall survive the termination of this Agreement for any
reason. In the event the Employee breaches this Section 8, the
Company shall have right to seek remedies permissible under applicable
law.
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9.
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INVENTIONS
ASSIGNMENT
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The
Employee understands that the Company engages in research and development and
other activities in connection with its business and that, as an essential part
of the Employment, The Employee is expected to make new contributions to and
create inventions of value for the Company.
From and
after the Effective Date, the Employee shall disclose in confidence to the
Company all inventions, improvements, designs, original works of authorship,
formulas, processes, compositions of matter, computer software programs,
databases, mask works and trade secrets (collectively, the “Inventions”), which
the Employee may solely or jointly conceive or develop or reduce to practice, or
cause to be conceived or developed or reduced to practice, during the period of
the Employee’s Employment at the Company. The Employee acknowledges
that copyrightable works prepared by the Employee within the scope of and during
the period of the Employee’s Employment with the Company are “works for hire”
and that the Company will be considered the author thereof. The
Employee agrees that all the Inventions shall be the sole and exclusive property
of the Company and the Employee hereby assign all his or her right, title and
interest in and to any and all of the Inventions to the Company or its successor
in interest without further consideration.
The
Employee agrees to assist the Company in every proper way to obtain for the
Company and enforce patents, copyrights, mask work rights, trade secret rights,
and other legal protection for the Inventions. The Employee will
execute any documents that the Company may reasonably request for use in
obtaining or enforcing such patents, copyrights, mask work rights, trade secrets
and other legal protections. The Employee’s obligations under this
paragraph will continue beyond the termination of the Employment with the
Company, provided that the Company will compensate the Employee at a reasonable
rate after such termination for time or expenses actually spent by the Employee
at the Company’s request on such assistance. The Employee appoints
the Secretary of the Company as the Employee’s attorney-in-fact to execute
documents on the Employee’s behalf for this purpose.
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This
Section 9 shall survive the termination of this Agreement for any
reason. In the event the Employee breaches this Section 9, the
Company shall have right to seek remedies permissible under applicable
law.
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10.
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NON-COMPETITION
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In
consideration of the salary paid to the Employee by the Company, the
Employee agrees that during the term of the Employment and for a period of
one year following the termination of the Employment for whatever
reason:
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(a)
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the
Employee will not approach clients, customers or contacts of the Company
or other persons or entities introduced to the Employee in the Employee’s
capacity as a representative of the Company for the purposes of doing
business with such persons or entities which will harm the business
relationship between the Company and such persons and/or
entities;
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(b)
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unless
expressly consented to by the Company, the Employee will not assume
employment with or provide services as a director or otherwise for any
Competitor in the People’s Republic of China or such other territories
where the Company carries on its business or part thereof (the “Territory”), or
engage, whether as principal, partner, licensor or otherwise, in any
Competitor that carries on its business or part thereof in the Territory;
and
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(c)
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unless
expressly consented to by the Company, the Employee will not seek directly
or indirectly, by the offer of alternative employment or other inducement
whatsoever, to solicit the services of any employee of the Company
employed as at or after the date of such termination, or in the year
preceding such termination.
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For
purposes of this Section 10, a “Competitor” of the Company shall not
include an entity that generates 10% or less of its revenues from battery
products and services similar to those provided by the Company, except
that if the Employee is employed by, or provides services as a director or
otherwise to, a subsidiary or divisional business of such an entity, such
subsidiary or divisional business shall be deemed a “Competitor” if it
generates more than 10% of its revenues from battery products and services
similar to those provided by the Company. The provisions
provided in Section 10 shall be separate and severable, enforceable
independently of each other, and independent of any other provision of
this Agreement.
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The
provisions contained in Section 10 are considered reasonable by the Employee and
the Company. In the event that any such provisions should be found to
be void under applicable laws but would be valid if some part thereof was
deleted or the period or area of application reduced, such provisions shall
apply with such modification as may be necessary to make them valid and
effective.
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This
Section 10 shall survive the termination of this Agreement for any
reason. In the event the Employee breaches this Section 10, the
Company shall have right to seek remedies permissible under applicable
law.
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11.
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ENTIRE
AGREEMENT
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This
Agreement constitutes the entire agreement and understanding between the
Employee and the Company regarding the terms of the Employment and supersedes
all prior or contemporaneous oral or written agreements concerning such subject
matter. The Employee acknowledges that he or she has not entered into
this Agreement in
reliance upon any representation, warranty or undertaking which is not set forth
in this Agreement. Any amendment to this Agreement must be in writing
and signed by the Employee and the Company.
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12.
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GOVERNING LAW; CONSENT TO
JURISDICTION
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This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York. The parties hereto irrevocably submit to the non-exclusive
jurisdiction of the U.S. federal courts or New York state courts, each located
in The City of New York, over any suit, action or proceeding arising out of or
relating to this Agreement. To the fullest extent they may
effectively do so under applicable law, the parties hereto irrevocably waive and
agree not to assert, by way of motion, as a defense or otherwise, any claim that
they are not subject to the jurisdiction of any such New York court, any
objection that they may now or hereafter have to the laying of the venue of any
such suit, action or proceeding brought in any such New York court and any claim
that any such suit, action or proceeding brought in any such New York court has
been brought in an inconvenient forum.
(SIGNATURE
PAGE FOLLOWS)
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IN
WITNESS WHEREOF, this Agreement has been executed as of the date first written
above.
China
BAK Battery, Inc.
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Employee
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Signature:
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/s/
Xiangqian Li
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Signature:
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/s/
Ke Marcus Cui
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Name:
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Xiangqian
Li
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Name:
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Ke
Marcus Cui
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Title:
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Chairman,
President & CEO
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Schedule
A
Cash
Compensation
Amount
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Pay Period
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Salary
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RMB
192,000 annually
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monthly
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Bonus
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Discretionary
based on performance
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