Attached files
Exhibit 10.57
EMPLOYMENT AGREEMENT
(Amended
and Restated as of March 3, 2017)
THIS
EMPLOYMENT AGREEMENT (this “Agreement”) is made and
entered into effective as of August 4, 2015 (the “Effective
Date”) by and between Cellular Biomedicine Group Inc., a
Delaware corporation (the “Company”) on behalf of
itself and any of its subsidiaries, affiliates and related entities
and Yihong Yao (the “Executive”) (the Company and the
Executive, collectively, the “Parties,” and each, a
“Party”). This Agreement is amended and restated
effective as of March 3, 2017 (the “Restatement Effective
Date”). Certain capitalized terms are defined in
Section
28.
WITNESSETH:
WHEREAS, the
Company desires to employ the Executive as Chief Scientific Officer
of the Company, and the Executive is willing to do so, pursuant to
the terms of this Agreement.
NOW,
THEREFORE, in consideration of the premises and of the covenants
and agreements set forth herein and for other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, the Company and the Executive hereby agree as
follows:
1)
Employment.
a)
As of the
Restatement Effective Date, the Company will employ the Executive,
and the Executive will be employed by the Company, upon the terms
and conditions set forth herein.
b)
The employment
relationship between the Company and the Executive shall be
governed by the general employment policies and practices of the
Company, including without limitation, those relating to the
Company’s Code of Conduct and Ethics, confidential
information and avoidance of conflicts, except that when the terms
of this Agreement differ from or are in conflict with the
Company’s general employment policies or practices, the terms
of this Agreement shall control.
2)
Employment Term. Subject to
earlier termination under Section 9, the Executive’s
employment under this Agreement shall be for an initial term that
commences on the Restatement Effective Date and continues through
March 2 (the “Initial Employment Term”), 2021. At the
end of the Initial Employment Term and on each succeeding
anniversary of the Restatement Effective Date, the term of the
Executive’s employment under this Agreement will (subject to
earlier termination under Section 9) be automatically extended by
an additional twelve (12) months as of 12:00 a.m. on the
anniversary of the Restatement Effective Date (each, a
“Renewal Term”) (the Initial Employment Term and any
subsequent Renewal Term, the “Employment Term”), unless
not less than thirty (30) days prior to the end of the Initial
Employment Term or any Renewal Term, either Party has given the
other Party written notice of non-renewal in accordance with
Section 20. In the event of any voluntary termination of his
employment under this Agreement by the Executive, he shall provide
the Company with at least 30 days written notice of his intent to
terminate such employment.
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3)
Position and Duties of the Executive.
a)
During the
Employment Term, the Executive shall serve as the Chief Scientific
Officer of the Company and shall have such duties and authorities
consistent with such position as are customary for the position of
Chief Scientific Officer of a company of the size and nature of the
Company, and such other duties and authorities as shall be
reasonably determined from time to time by the Chief Executive
Officer and Board of Directors of the Company (the
“Board”) consistent with such position and agrees to
serve as an officer and/or be an employee of any Subsidiary as may
be reasonably requested from time to time by the Chief Executive
Officer, Board or any committee of the Board. In his capacity as
Chief Scientific Officer of the Company, the Executive shall report
to the Chief Executive Officer of the Company.
b)
During the
Employment Term and except as may from time to time be otherwise
agreed to in writing by the Company, or during reasonable vacations
taken in accordance with Section 7, or during authorized leave, or
as otherwise provided in Section 3(c), the Executive shall devote
his best reasonable efforts, exclusive and full attention and
energies (except for attention to personal interests outside of
normal working time) to the Executive’s position and duties
as set forth in Section 3(a), in each case within the framework of
the Company’s policies and objectives.
c)
During the
Employment Term, Executive may not undertake any other paid work
without the Company’s prior express written authorization,
which authorization may be revoked at any time in the
Company’s sole discretion. However, provided that such
activities do not contravene the provisions of Sections 3(a), 10,
11, 12, or 13 and provided further, that the Executive does not
engage in any other substantial business activity for gain, profit
or other pecuniary advantage which materially interferes with the
performance of his duties hereunder, the Executive may (i)
participate in any governmental, educational, charitable or other
community affairs, (ii) subject to the prior approval of the
Company, serve as a member of the governing board of any such
organization or any private or public for-profit entity, (iii)
manage his personal investments and affairs, and (iv) engage in any
other activity that has been approved by the Company. The Executive
may retain all fees and other compensation or other proceeds from
any such service or activities, and the Company shall not reduce
his compensation hereunder by the amount of such fees, compensation
or other proceeds.
4)
Compensation.
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a)
Base Salary. Effective August
4, 2015 and during the Employment Term, the Company shall pay to
the Executive an annual base salary of $250,000 (the “Base
Salary”), which Base Salary shall be payable at the times and
in the manner consistent with the Company’s general policies
regarding payment of salary to the Company’s senior
executives but no less frequently than monthly, less lawful
deductions. After December 31, 2017, the Base Salary will be
reviewed at least annually by the Company and may be increased from
time to time in the Company’s sole discretion.
b)
Incentive Compensation. The
Executive will be eligible to participate in any short term and
long-term incentive compensation plans and such other management
incentive programs or arrangements of the Company approved by the
Board that are generally available to the Company’s senior
executives. Except to the extent otherwise provided in this
Agreement, incentive compensation shall be paid in accordance with
the terms and conditions of the applicable plans, programs and
arrangements and the documents evidencing the grant of awards
thereunder. Such participation shall include the
following.
i.
Annual Performance Bonus.
During the Employment Term, contingent upon Executive attaining the
individual performance objectives set by the Chief Executive
Officer in his/her sole discretion, as such objectives may change
from time to time, the Executive shall be entitled to participate
in the Annual Performance Bonus, with such opportunities as may be
determined by the Chief Executive Officer in his/her sole
discretion (each such annual opportunity, a “Target
Bonus”); provided, however, that beginning on January 1, 2017
and for each calendar year thereafter that commences during the
Employment Term, the Executive will participate at an annual Target
Bonus opportunity of 50% of his Base Salary, which percentage may
be increased. Executive is not entitled to payment of this Annual
Bonus until such time as the Chief Executive Officer informs the
Executive that the Annual Bonus has been “earned.” Each
earned bonus payable pursuant to this Section 4(b)(i) shall be paid
in a cash lump sum no later than January 31 and shall be referred
to herein as a “Bonus Award”. Executive is not entitled
to payment of any Annual Bonus, or portion thereof, which has not
been “earned” as of the date of termination of
employment, regardless of the reason for termination. Any document
provided by the Company at any point after the execution of this
Agreement which details Executive’s entitlement to the Annual
Bonus described herein shall be considered part of this Agreement
and deemed incorporated herein unless it is expressly stated that
such document supersedes the terms of this provision.
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ii.
Long-Term Incentive Plan (the
“LTIP”). During the Employment Term, the
Executive shall be entitled to participate in the Long-Term
Incentive Plan with such opportunities as may be determined
(consistent with this Section 4(b)(ii)) by the Compensation
Committee (the target opportunities referred to herein as the
“LTIP Target Award Opportunities”). The Executive shall
be granted, effective as of the Restatement Effective Date (the
“Grant Date”), an initial LTIP Target Award Opportunity
with a total aggregate 80,000 shares on the Grant Date (the
“Initial LTIP Target Award”), with 26,500 shares of
such value granted as a time-vesting nonqualified stock option
award, 26,500 shares of such value granted as a time-vesting
restricted stock unit award and 27,000 shares of such value granted
as a Company’s Common Stock price performance-vesting
restricted stock unit award. The Initial LTIP Target Award is
intended to cover any LTIP awards that might otherwise have been
granted to the Executive under this Section 4(b)(ii) for 2017. The
Executive shall be entitled to no LTIP awards for 2018, 2019 or
2020. For purposes of clarity, save for the event of a Change of
Control upon which all of the Executive’s outstanding Initial
LTIP Target Award shall be accelerated and vested in full, the
portion of the Initial LTIP Target Award granted in the form of
performance-based restricted stock units shall be subject to the
performance targets and periods established by the Compensation
Committee for the 2017 LTIP for the Company’s senior
executives, and can only be accelerated due to death, disability or
termination of employment in accordance with Section
9(b).
(1)
Taxes.
The Executive is liable for any and all taxes, including
withholding taxes, arising out of this Initial LTIP Target Award
grant or the issuance of the Common Stock on vesting and delivery
of the RSUs. The Company is authorized to deduct the amount of tax
withholding from the amount payable to you upon settlement of the
RSUs. The Company will withhold from the total number of shares of
Common Stock the Executive is to receive a number of shares the
value of which is sufficient to satisfy any such withholding
obligation at the minimum applicable withholding rate.
5)
Benefits.
a)
Executive shall
receive benefits, including, but not limited to, life insurance and
retirement plan participation, as determined by the
Company. To the extent offered and maintained by the
Company, Executive shall be entitled to participate in the
Employer’s healthcare plans, welfare benefit plans, fringe
benefit plans, profit sharing plans, and any qualified or
non-qualified retirement plans as may be in effect from time to
time, on the same basis as those benefits are made available to the
other similarly situated employees of the Company, in accordance
with the Company policy as in effect from time to time and in
accordance with the terms of the applicable plan documents (if
any). Nothing in this Agreement shall be construed as
requiring the Company or any affiliate of the Company to offer or
maintain any particular employee benefit plan or program or
preclude the Company from terminating same from time to
time.
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b)
Without limiting
the generality of Section 5(a), in the event the Executive becomes
Disabled during the Employment Term, the Executive shall be
entitled to periodic payments in an aggregate amount equal to his
Base Salary in effect immediately prior to the date that he is
Disabled, which payments shall be paid to the Executive in equal
installments on the regular payroll dates under the Company’s
payroll practices applicable to its senior executives (but no less
frequently than monthly), until six months after the first
anniversary of the date he was Disabled, but reduced by any
disability benefits paid under all other plans during such
disability period provided that payments under this Section 5(b)
are made at the same time as the installments contemplated herein.
Each payment payable pursuant to this Section 5(b) is intended to
constitute a separate payment for purposes of Treasury regulation
section 1.409A-2(b)(2). For the avoidance of doubt, the Disability
Benefits described herein are intended to comply with Section
409A(a)(2)(A) and Treasury Regulation Section
1.409A-3.
6)
Expenses. The Company shall
promptly pay or reimburse the Executive for business expenses
reasonably incurred by the Executive in connection with his duties
on behalf of the Company following submission by the Executive of
appropriate documentation substantiating such
expenses.
7)
Vacation. In addition to
company and public holidays at the Place of Performance, sick
leave, personal leave and other paid leave as is allowed under the
Company’s policies applicable to senior executives generally,
the Executive shall be entitled to participate in the
Company’s vacation policy at a minimum of two (2) weeks
vacation per calendar year, in accordance with the Company’s
policy generally applicable to senior executives.
8)
Place of Performance. The
Executive’s principal place of work, subject to reasonable
and necessary domestic and international travel requirements, shall
be in Maryland and up to 182 days in China. If the Company
relocates the Executive’s principal place of work (Maryland)
more than 50 miles from his principal place of work immediately
prior to such relocation, the Executive shall, subject to any right
to terminate his employment for Good Reason, establish a residence
within the greater of (a) 50 miles of such relocated office or (b)
the total number of miles the Executive commuted to his principal
place of work prior to such relocation. To the extent the Executive
establishes new residences as provided in this Section 8, the
Company will pay or reimburse the Executive’s relocation
expenses in accordance with the Company’s relocation policy
that is then applicable to its most senior executives.
9)
Termination.
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a)
Termination Upon Non-Renewal of the
Employment Term by the Executive or the Company, Termination by the
Company for Cause, or Resignation by the Executive Without Good
Reason. If the Executive or the Company provides notice of
non-renewal of the Employment Term in accordance with Section 2 and
the Executive’s employment hereunder terminates upon the
resulting expiration of the Employment Term, or if the
Executive’s employment hereunder is terminated by the Company
for Cause, or if the Executive resigns his employment hereunder
without Good Reason, the Executive shall not be eligible to receive
Base Salary, or to participate in any Employee Plans, with respect
to any period of time after the date the Executive’s
employment hereunder terminates (the “Termination
Date”) unless the Parties otherwise agree in
writing.
b)
Termination by the Company Without
Cause or within one-year following completion of a Change of
Control, or Resignation by the Executive with Good Reason .
If, the Executive’s employment hereunder is terminated by the
Company without Cause, or within one-year following completion of a
Change of Control, the Executive’s employment hereunder is
terminated by the Company without Cause, or the Executive
terminates his employment hereunder with Good Reason, the Executive
shall be entitled to receive, conditioned upon the
Executive’s execution and delivery to the Company of a
Release in the form of Exhibit A hereto, within the Release
Consideration Period and upon the expiration of the Release
Revocation Period without revocation, and in full satisfaction of
any rights the Executive might otherwise have under the
Agreement:
i.
An aggregate amount
equal to two times the Base Salary in effect immediately prior to
the Termination Date.
ii.
Payment of a pro
rata Bonus Award for the portion of the Company’s then
current fiscal year prior to and including the Termination
Date.
iii.
Heath Insurance
Coverage. A cash payment equal to its portion of the applicable
12-month COBRA (or equivalent health insurance coverage comparable
to the terms in effect immediately prior to the Termination Date)
premiums on an after-tax basis, with such payment to be made in the
same month for which the continuation coverage was otherwise to be
provided but no less than 30 days after the Termination Date for
the Executive and his eligible family members. Notwithstanding the
forgoing provisions of this paragraph, in the event the Executive
becomes reemployed with another employer and becomes eligible to
receive medical and dental benefits from such employer during any
month in the 12 month continuation period provided for by this
paragraph, the Company shall have no obligation to pay, reimburse
or otherwise provide the Executive with continuation coverage for
any such month.
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iv.
Outplacement
services, paid for by the Company promptly following receipt of
appropriate documentation substantiating the expense, up to a
maximum amount of $35,000; provided, however, that all outplacement
services that are paid for by the Company must be completed, and
all payments by the Company must be made, by December 31st of the
second calendar year following the calendar year in which the
Executive’s Separation from Service occurs.
v.
With respect to any
outstanding equity, or equity-based, awards, accelerate and vest in
full effective as of immediately upon the Termination Date; and
with respect to all vested stock options, the post-termination
exercise period shall be fifteen months from the date of Separation
from Service. For the avoidance of doubt, the terms on
post-termination exercise period in this Section 9(b), and the
Section 4(b)(ii)(1) withholding tax terms shall be the controlling
terms for all of the Executive’s vested stock options and the
issuance of the Common Stock on vesting of RSUs.
i.
With respect to the
Initial LTIP Target Award, the accelerated vesting and payout of
any award shall be subject to the Release Requirements of this
Section 9(b).
Notwithstanding
anything in this Section 9(b) to the contrary, to the extent the
Executive has not executed the Release and delivered it to the
Company within the Release Consideration Period, or has revoked the
executed Release within the Release Revocation Period, the
Executive will forfeit any right to receive the payments and
benefits specified in this Section 9(b) and to the extent any such
payments and benefits have been paid, the Company shall have the
right to recover the after-tax amount of any such
payment.
c)
Termination by
Death. If the Executive dies during the Employment Term, the
Executive’s employment hereunder will terminate as of the
date of his death.
d)
Termination by
Disability. If the Executive becomes Disabled prior to the
expiration of the Employment Term, the Executive’s employment
hereunder will terminate, and the Executive and his eligible family
members shall be entitled to continue to participate, through the
first anniversary of the Termination Date, in the Company’s
health plans at his then-existing participation and coverage levels
and on the terms that are in effect from time to time for the
Company’s senior executives.
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e)
No Mitigation
Obligation. In the event of any termination of the
Executive’s employment hereunder, the Executive shall be
under no obligation to seek other employment or otherwise mitigate
the obligations of the Company under this Agreement, and no amounts
paid, or benefits provided, under Section 9 will be reduced on
account of any compensation or benefits that the Executive may
receive from any other source, except as expressly provided in
Section 9.
f)
Forfeiture.
Notwithstanding the foregoing, any right of the Executive to
receive termination payments and benefits under Sections 9(b) or
9(c) (or continued vesting or vesting acceleration of equity awards
pursuant to the terms and conditions of such awards) shall be
subject to forfeiture to the extent provided in Section 14 after
any breach of Section 10, 11, or 12 by the Executive.
g)
Accrued Benefits.
Upon any termination of the Executive’s employment hereunder,
regardless of the reason, (i) the Executive shall promptly receive
any accrued but unpaid cash compensation (including, without
limitation, Base Salary through the Termination Date and cash
compensation for accrued but unused vacation days) and
(notwithstanding his termination) reimbursement for business
expenses incurred prior to the Termination Date and otherwise
reimbursable under Section 6; (ii) other than in connection with a
termination of the Executive’s employment hereunder by the
Company for Cause, or by the Executive without Good Reason and not
due to non-renewal of the Employment Term as a result of the notice
of non-renewal from the Executive, the Executive shall be entitled
to payment of any unpaid Bonus Award for any fiscal year that ended
prior to, or is ending during the year of, the Termination,
determined and paid in good faith without any exercise of negative
discretion at the time of determination that is not also applied in
equal percentage amounts across-the-board to the bonuses payable to
the Company’s other senior executives; (iii) the Executive
shall be entitled to any vested, accrued or earned benefits under
any Employee Plan or equity, or equity-based, award in accordance
with the terms of such Employee Plan and applicable law; and (iv)
the Executive shall be entitled to any other non-duplicative
payments or benefits then or thereafter due in accordance with the
then applicable terms of any applicable Company
Arrangement.
10.
Confidential Information;
Statement to Third Parties.
a)
During the
Employment Term and following termination of Executive’s
employment, the Executive acknowledges and agrees
that:
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i.
all information,
whether or not reduced to writing (or in a form from which
information can be obtained, translated, or derived into reasonably
usable form) and whether compiled or created by the Company, any of
its Subsidiaries, or any entity or venture in which the Company,
directly or indirectly, has an ownership interest of 20% or more or
which has an ownership interest of 20% or more in the Company
(collectively, the “Company Group”) of a proprietary,
private, secret or confidential nature (including, without
exception, inventions, products, processes, methods, techniques,
formulas, compositions, compounds, projects, developments, sales
strategies, plans, research data, clinical data, financial data,
personnel data, computer programs, customer and supplier lists,
trademarks, service marks, copyrights (whether registered or
unregistered), artwork, and contacts at or knowledge of customers
or prospective customers) concerning the Company Group’s
business, business relationships or financial affairs, which
derives independent economic value from not being readily known to
or ascertainable by proper means by others who can obtain economic
value from the disclosure or use of such information (collectively,
“Proprietary Information”) shall be the exclusive
property of the Company Group.
ii.
reasonable efforts
have been put forth by the Company Group to maintain the secrecy of
its Proprietary Information; and
iii.
any willful
retention or use by the Executive of Proprietary Information that
violates this Agreement after the termination of the
Executive’s employment will constitute a misappropriation of
the Company Group’s Proprietary Information.
b)
The Executive
further acknowledges and agrees that he will take all affirmative
steps as reasonably necessary or requested by the Company to
protect the Proprietary Information from inappropriate disclosure
during and after his employment with the Company, provided that the
Company agrees to pay any expenses reasonably incurred by the
Executive in complying with this obligation promptly following
receipt of appropriate documentation from the Executive
substantiating such expenses.
c)
All materials or
copies thereof and all tangible things and other property of the
Company Group that embody, represent or contain Proprietary
Information in the Executive’s custody or possession shall be
delivered to the Company (to the extent the Executive has not
already returned them) within ten business days after the earlier
of: (i) any request by the Company delivered in accordance with
Section 20 or (ii) any termination of the Executive’s
employment with the Company for any reason. After such delivery,
the Executive shall not retain any such materials or portions or
copies thereof or any such tangible things and other property and
shall execute any affirmation of compliance that the Company may
reasonably require. Anything in this Agreement or elsewhere to the
contrary notwithstanding the Executive shall at all times be
entitled to retain, and use appropriately (i) papers and other
materials of a personal nature, including, but not limited to,
photographs, correspondence, personal diaries, calendars, rolodexes
(and electronic equivalents), personal files and phone books, (ii)
information and documents pertaining to his personal rights,
obligations and entitlements, (iii) information the Executive
reasonably believes may be needed for tax purposes, and (iv) copies
of plans, programs and agreements related to his employment, or
termination thereof, with the Company.
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d)
The Executive
further agrees that his obligation not to disclose or to use
information and materials set forth in Sections 10(a), 10(b) and
10(c) above, and his obligation to return materials and tangible
property set forth in Section 10(c) above, also extends to
corresponding types of information, materials and tangible property
of customers of the Company Group, consultants for the Company
Group, suppliers to the Company Group, or other third parties who
may have disclosed or entrusted the same to the Company Group or to
the Executive.
e)
The Executive
further acknowledges and agrees that he will continue to keep in
strict confidence, and will not, directly or indirectly, at any
time, disclose, furnish, disseminate, make available, use or suffer
to be used in any manner except in carrying out his duties
hereunder any Proprietary Information without limitation as to when
or how the Executive may have acquired such Proprietary Information
and that he will not disclose any Proprietary Information to any
person or entity other than appropriate employees of the Company or
use the same for any purposes (other than in the performance of his
duties under this Agreement) without written approval of the Board,
either during or after his employment with the
Company.
f)
Further the
Executive acknowledges that his obligation of confidentiality will
survive, regardless of any other breach of this Agreement or any
other agreement, by any party hereto, until and unless such
Proprietary Information of the Company Group has become, through no
fault of the Executive, generally known to the public. In the event
that the Executive is required by law, regulation, or court order
to disclose any Proprietary Information, the Executive will
promptly notify the Company prior to making any such disclosure to
facilitate the Company seeking a protective order or other
appropriate remedy from the proper authority prior to disclosing
such information. The Executive further agrees to cooperate with
the Company in seeking such order or other remedy and that, if the
Company is not successful in precluding the requesting legal body
from requiring the disclosure of the Proprietary Information, the
Executive will furnish only that portion of the Proprietary
Information that he reasonably believes is legally required to be
disclosed, and the Executive will exercise all reasonable efforts
to obtain reliable assurances that confidential treatment will be
accorded to the Proprietary Information; provided that, in each
case, the Company agrees to promptly pay any expenses reasonably
incurred by the Executive in complying with these obligations
following receipt of appropriate documentation from the Executive
substantiating such expenses.
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g)
The
Executive’s obligations under this Section 10 are in addition
to, and not in limitation of, all other obligations of
confidentiality under the Company’s policies, general legal
or equitable principles or statutes. However, nothing in this
Agreement or elsewhere shall prohibit the Executive from making
truthful statements, or disclosing Proprietary Information in good
faith (i) to appropriate members of the Company Group, or to any
authorized (or apparently authorized) agent or representatives of
any of them, (ii) in connection with the good faith performance of
his duties for the Company, (iii) when required to do so by a
court, government agency, legislative body, arbitrator or another
person with apparent jurisdiction to require such disclosure
provided the Executive give the Company notice of same and the
opportunity to seek a protective order in accordance with the
provisions of (f) above, (iv) as reasonably necessary in the course
of any proceeding under Section 16 or 21, (v) in confidence to an
attorney or other professional for the purpose of securing
professional assistance or advice, or (vi) when specifically
authorized to do so in writing by the Board.
h)
During and after
the Employment Term:
i.
the Executive
covenants and agrees not to engage in conduct that involves the
making or publishing of written or oral statements or remarks,
(including, without limitation, the repetition or distribution of
derogatory rumors, allegations, negative reports or comments) which
are disparaging, deleterious or damaging to the integrity,
reputation or good will of the Company. This prohibition applies to
statements made privately and publicly, and whether by electronic,
written or oral means, in person, by phone, by voicemail, by text
message, by email and by any other electronic means, including on
the internet via a blog post or comment, vlog, instant message,
video, any online conversation, and on any social media sites or
applications; and
ii.
the Company shall
refrain from making any statements about the Executive that would
disparage, or reflect unfavorably upon the image or reputation of
the Executive; provided, however, that the foregoing shall not
prohibit the Company from complying with its policies regarding
public statements with respect to the Executive, or otherwise
complying with applicable law, and any such statements shall be
deemed to be made by the Company only if made or authorized by a
member of the Board or a senior executive officer of the Company;
and
iii.
nothing in this
Agreement or elsewhere shall prohibit honest and good faith
reporting by the Executive to appropriate Company or legal
enforcement authorities or otherwise complying with applicable
law.
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11.
Non-Competition. In
consideration of the Company entering into this Agreement, for the
period commencing on the Restatement Effective Date and ending on
the expiration of the Restricted Period:
a)
The Executive
covenants and agrees that the Executive will not, directly or
indirectly, engage in any activities on behalf of or have an
interest in any Competitor of the Company Group, whether as an
owner, investor, executive, manager, employee, independent
consultant, contractor, advisor, agent, stockholder, officer,
director or otherwise. The Executive’s ownership of less than
three percent (3%) of any class of stock in a publicly-traded
entity shall not be a breach of this Section 11(a).
b)
“Competitor”
means, at the time of the termination of the Executive’s
employment with the Company for any reason, any individual,
corporation, partnership, limited liability company, association,
joint venture, trust, joint stock company, joint venture, or
unincorporated organization (a “Person”) or any of such
Person’s Divisions doing business in the United States
including any territory of the United States and the Place of
Performance (collectively, the “Territory”) or any of
such Person’s Divisions employing the Executive doing
business in the Territory if such Person or its Division: (i)
receives at least 15% of its gross operating revenues from
providing substantially similar cell therapies of any type (for
example, Knee Osteoarthritis and the Company’s Chimeric
Antigen Receptor T-Cell therapies targeted indications ), (ii) is
operating for less than 5 years a substantially similar line of
cell therapies business from which the Company Group derives, and
the Company Group has specifically disclosed to the Executive that
it derives, or that the Executive knows or should reasonably know
based on his position, duties or responsibilities with the Company
that it derives, at least 20% of gross operating revenues,
notwithstanding such Person’s or Division’s lack of
substantial revenues in such line of business, or (iii) is engaged
in any activity or has an interest in any activity in which
Proprietary Information to which the Executive had access at any
time during the two-year period before his termination of
employment that could be of substantial harm to the Company Group.
For this purpose, “Division” means any distinct group,
subsidiary, or unit organized as a segment or portion of a Person
that is devoted to the production, provision, or management of a
common product or service or group of related products or services,
regardless of whether the group is organized as a legally distinct
entity. For purposes of the foregoing, gross operating revenues of
the Company Group and such other Person shall be those of the
Company Group or such Person, together with their Company Group,
but those of any Division employing or proposing to employ the
Executive shall be on a stand-alone basis, all measured by the most
recent available financial information of both the Company Group
and such other Person or Division at the time the Executive
accepts, or proposes to accept, employment with or to otherwise
perform services for such Person or Division. If financial
information concerning any potential Competitor is not publicly
available or is inadequate for purposes of applying this
definition, the ultimate burden shall be on the Executive to
present information that such Person or Division is not a
Competitor.
12
c)
The Executive
acknowledges and agrees that, for purposes of this Section 11, due
to the continually evolving nature of the Company Group’s
industry, the scope of its business and/or the identities of
Competitors may change over time and that breach of this Agreement
by accepting employment with a Competitor would irreparably injure
the Company Group. The Parties further acknowledge and agree that
the Company Group currently markets its products and services on an
international basis, encompassing the Territory, and may expand
such Territory to include any international and foreign markets, in
which case the Parties acknowledge that the terms and provisions of
this Section 11 shall apply to such expanded markets.
d)
The Executive
covenants and agrees that should a court of competent jurisdiction
at any time determine that any restriction or limitation in this
Section 11 is unreasonable or unenforceable, it will be deemed
amended so as to provide the maximum protection to the Company
Group and be deemed reasonable and enforceable by the
court.
12.
Non-Solicitation. In
consideration of the Company entering into this Agreement, for the
period commencing on the Restatement Effective Date and ending on
the expiration of the Restricted Period, the Executive hereby
covenants and agrees that he shall not individually or in
cooperation with any other person or entity do any of the
following:
a)
Non-Solicitation of Employees.
Executive agrees that he will not, while employed by the Company
and for a period of two (2) years following the Termination
Date:
i.
directly solicit,
encourage, or take any other action which is intended to induce any
other employee of the Company to terminate his or her employment
with the Company; or
ii.
directly interfere
in any manner with the contractual or employment relationship
between the Company and any such employee of the
Company.
The
foregoing shall not prohibit Executive or any entity with which
Executive may later be affiliated from hiring a former or existing
employee of the Company or any of its subsidiaries, provided that
such hiring does not result from the direct actions of
Executive.
13
a)
Non-Solicit of Customers with respect
to Competitive Business Activity. Executive agrees that he
will not, while employed by the Company and for a period of two (2)
years following termination of such employment, directly or
indirectly, whether for his own account or for the account of any
other individual or entity, solicit the business or patronage of
any customers of the Company with respect to products and/or
services directly related to a Competitive Business Activity.
“Competitive Business Activity” shall mean engaging in,
whether independently or as an employee, agent, consultant,
advisor, independent contractor, partner, stockholder, officer,
director or otherwise, any business which is materially competitive
with the business of the Company as conducted or actively planned
to be conducted by the Company during his employment by it,
provided that Executive shall not be deemed to engage in a
Competitive Business Activity under this Section 12(b) solely by
reason of (i) owning 1% or less of the outstanding common stock of
any corporation if such class of common stock is registered under
Section 12 of the Securities Exchange Act of 1934, or (ii) after
the termination of his employment by the Company, being employed by
or otherwise providing services to a corporation having total
revenue of at least $500 million (or such lower number as may be
agreed by the Board) so long as such services are provided solely
to a division or other business unit of such corporation which does
not engage in a business which is then competitive with the
business of the Company.
13)
Developments.
a)
The Executive
acknowledges and agrees that he will, upon request by the Company,
make full and prompt disclosure to the Company of all inventions,
improvements, discoveries, methods, developments, software, written
material, record, document, firmware, development, design, mask
works, and works of authorship, whether patentable or copyrightable
or not, (i) which relate to the Company’s business and have
heretofore been created, made, conceived or reduced to practice by
the Executive or under his direction or jointly with others, and
not assigned to prior employers, or (ii) which have utility in or
relate to the Company’s business, and which are created,
made, conceived or reduced to practice by the Executive or under
his direction or jointly with others during his employment with the
Company, whether or not during normal working hours or on the
premises of the Company (all of the foregoing of which are
collectively referred to in this Agreement as
“Developments”).
b)
The Executive
agrees that all lab notebooks, description of planned and conducted
experiments, all documents referencing the company’s
technology, and invention disclosure form (whether signed, executed
of not) are the Company’s proprietary property.
14
c)
The Executive
further agrees to assign and does hereby assign to the Company (or
any person or entity designated by the Company) all of the
Executive’s rights, title and interest worldwide in and to
all Developments and all related intellectual properties comprised
of patents, patent applications, trademark/service mark
application, trade dress, copyrights and copyright applications,
and any other applications for registration of a proprietary right.
This Section 13(b) shall not apply to Developments that the
Executive developed entirely on his own time without using the
Company’s equipment, supplies, facilities, or Proprietary
Information and that does not, at the time of conception or
reduction to practice, have utility in or relate to the
Company’s business, or actual or demonstrably anticipated
research or development. The Executive understands that, to the
extent this Agreement shall be construed in accordance with the
laws of any Territory which precludes a requirement in an employee
agreement to assign certain classes of inventions made by an
employee, this Section 13(b) shall be interpreted not to apply to
any invention which a court or arbitrator rules, or the Company
agrees, falls within such classes.
d)
The Executive
further agrees to cooperate with the Company, both during and after
the Employment Term and upon the Company’s reasonable request
and at the Company’s sole expense, with respect to the
procurement, maintenance and enforcement of copyrights, patents and
other intellectual property rights (both in the United States and
other countries) relating to Developments. The Executive shall not
be required to incur or pay any costs or expenses in connection
with the rendering of such cooperation. Upon reasonable request by
the Company, the Executive will sign all papers, including, without
limitation, copyright applications, patent applications,
declarations, oaths, formal assignments, assignments of priority
rights, and powers of attorney, and do all other things reasonably
requested by the Company (at its sole expense) to protect the
Company’s rights and interests in any
Development.
e)
The Executive
further acknowledges and agrees that if the Company is unable,
after reasonable effort, to secure the Executive’s signature
on any such papers as reasonably requested, any executive officer
of the Company shall be entitled to execute any such papers as the
Executive’s agent and attorney-in-fact, and the Executive
hereby irrevocably designates and appoints each executive officer
of the Company as his agent and attorney-in-fact for the sole
purpose of executing any such papers on the Executive’s
behalf under such circumstances and taking any and all actions
reasonably requested by the Company (at the Company’s sole
expense) in order to protect its rights and interests in any
Development, under the conditions described in this
sentence.
f)
Executive hereby
forever fully releases and discharges the Company, and the Company
and their respective officers, directors and employees, from and
against any and all claims, demands, damages, liabilities, costs
and expenses of Executive arising out of, or relating to, any
Developments.
15
14)
Remedies. The Executive and the
Company agree that the covenants contained in Sections 10, 11, 12,
and 13 are reasonable under the circumstances, and further agree
that if in the opinion of any court of competent jurisdiction any
such covenant is not reasonable in any respect, such court will
have the right, power and authority to sever or modify any
provision or provisions of such covenants as to the court will
appear not reasonable and to enforce the remainder of the covenants
as so amended. The Executive acknowledges and agrees that the
remedy at law available to the Company for breach of any of the
Executive’s obligations under Sections 10, 11, 12, and 13
would be inadequate and that damages flowing from such a breach may
not readily be susceptible to being measured in monetary terms.
Accordingly, the Executive acknowledges, consents and agrees that,
in the event of any such breach, in addition to any other rights or
remedies that the Company may have at law, in equity or under this
Agreement, upon adequate proof of the Executive’s violation
of any such provision of this Agreement, the Company will be
entitled to seek immediate injunctive relief and may obtain a
temporary order restraining any threatened or further breach,
without the necessity of proof of actual damage. Without limiting
the applicability of this Section 14 or in any way affecting the
right of the Company to seek equitable remedies hereunder, in the
event that the Executive materially and willfully breaches any of
the provisions of Sections 10, 11, or 12 or engages in any activity
that would constitute a material and willful breach save for the
Executive’s action being in a state where any of the
provisions of Sections 10, 11, 12, or this Section 14 is not
enforceable as a matter of law, and, if such breach or activity is
susceptible to cure and such breach or activity is not cured by the
Executive within 7 days after the Company delivers a notice to the
Executive describing the breach or activity in reasonable detail
and requesting cure, then the Company’s obligation to pay any
remaining severance compensation and benefits that have not already
been paid to the Executive pursuant to Sections 9(a), 9(b) or 9(d)
shall terminate. During any breach of the provisions of paragraph
10 of this Agreement, the period of restraint set forth therein
shall be automatically tolled and suspended for the amount of time
that the violation continues. Executive understands and agrees that
he will be liable to pay all expenses, including court costs and
reasonable attorneys’ fees, necessarily incurred by him in
connection with the Company’s enforcement of the Restrictive
Covenants, whether or not litigation is entirely commenced and
including litigation of any appeal taken or defended by the Company
in any action to enforce this agreement. If any tribunal having
jurisdiction determines that any of the provisions of the
Restrictive Covenants, or any part thereof, is invalid or
unenforceable because of the duration or geographical scope of such
provision, such tribunal shall have the power to reduce the
duration or geographical scope of such provision and in its reduced
form, such provision shall then be enforceable.
16
15)
Continued Availability and
Cooperation.
a)
Following termination of the Executive’s employment under
this Agreement for any reason, the Executive agrees that,
consistent with the Executive’s business and personal affairs
and his fiduciary duties both to the Company and to any new
employer, he will (upon reasonable request by the Company)
cooperate with the Company and with the Company’s counsel in
connection with any present and future actual or threatened
litigation, administrative proceeding or investigation involving
the Company that relates to events, occurrences or conduct
occurring (or claimed to have occurred) during the period of the
Executive’s employment by the Company (other than any
litigation, administrative proceeding or investigation in which the
Executive and the Company are opposing parties); provided, however,
nothing in this Section 15(a) shall require the Executive to
cooperate in such a way that would jeopardize his legal interests.
Cooperation may include, but is not limited to:
i.
making himself
reasonably available for interviews and discussions with the
Company’s counsel as well as for depositions and trial
testimony;
ii.
if depositions or
trial testimony are to occur, making himself reasonably available
and cooperating in the preparation therefore, as and to the extent
that the Company or the Company’s counsel reasonably
requests;
iii.
refraining from
impeding in any way the Company’s prosecution or defense of
such litigation or administrative proceeding; and
iv.
cooperating in the
development and presentation of the Company’s prosecution or
defense of such litigation or administrative
proceeding.
b)
The Company will
promptly pay directly, or promptly reimburse the Executive for, any
expense reasonably incurred by him in connection with rendering
cooperation under Section 15(a), including (without limitation)
attorneys’ fees and other charges of counsel (if the
Executive reasonably determines that he should retain independent
legal counsel), incurred in connection with any cooperation,
consultation and advice rendered under this Agreement following
receipt of appropriate documentation from the Executive
substantiating such expenses.
16)
Dispute
Resolution.
17
a)
In the event that
the Parties are unable to resolve any controversy or claim arising
out of or relating to this Agreement, the Executive’s
employment with the Company, or any termination of such employment,
either Party to the dispute shall refer the dispute to binding
arbitration, which shall (except as otherwise provided in Section
16(d)) be the exclusive forum for resolving all such controversies
and claims. Such arbitration will be administered by Judicial
Arbitration and Mediation Services, Inc. (“JAMS”)
pursuant to its Comprehensive Arbitration Rules and Procedures (the
“JAMS Rules”). The arbitration shall be conducted by a
single arbitrator selected by the Parties according to the JAMS
Rules. In the event that the Parties fail to agree on the selection
of the arbitrator within 30 days after either Party’s request
for arbitration, the arbitrator will be chosen by JAMS. Unless the
Parties otherwise agree, any arbitration hearings shall commence on
a mutually agreeable date within 90 days after the request for
arbitration and shall be conducted within thirty (30) miles of the
location of the Place of Performance.
b)
The Parties agree
that each will bear their own costs and attorneys’ fees. The
arbitrator shall not have authority to award attorneys’ fees
or costs to any Party.
c)
The arbitrator
shall have no power or authority to make awards or orders granting
relief that would not be available to a Party in a court of law.
The arbitrator’s award is limited by and must comply with
this Agreement and controlling federal, state, and local laws.
Except as otherwise provided by law, the decision of the arbitrator
shall otherwise be final and binding on the Parties.
d)
Notwithstanding the
foregoing, no claim for injunctive or similar non-monetary
equitable relief contemplated by or allowed under applicable law
with respect to alleged violations of Sections 10, 11, 12, and 13
of this Agreement will be subject to arbitration under this Section
16, but will instead be subject to determination in a court of
competent jurisdiction as set forth in Section 21, which court
shall apply Delaware law consistent with Section 21 of this
Agreement.
17)
Other Agreements.
No agreements (other than the agreements evidencing grants of
equity awards and those expressly referred to in this Agreement,
and other Company Arrangements arising out of or relating to the
Executive’s service as a member of the Company’s Board)
(collectively, “Other Arrangements”)) or
representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either Party
which are not set forth in this Agreement. Each Party acknowledges
that no representations, inducements, promises, or other
agreements, orally or otherwise, have been made by any Party, or
anyone acting on behalf of such Party, pertaining to the subject
matter hereof, which are not embodied in this Agreement (or in any
Other Arrangement), and that no prior and/or contemporaneous
agreement, statement or promise pertaining to the subject matter
hereof that is not contained in this Agreement (or in any Other
Arrangement) shall be valid or binding on either
Party.
18
18)
Withholding of Taxes. The
Company will withhold from any amounts payable by it under this
Agreement all federal, state, city or other taxes that the Company
is required to withhold pursuant to any applicable statute or
government regulation or ruling.
19)
Successors and Binding
Agreements.
a)
Nothing in this
Agreement, except as expressly set forth herein, is intended to
confer any rights or remedies under or by reason of this Agreement
on any persons other than the parties to this Agreement and the
successors, assigns and affiliates of the Company, nor is anything
in this Agreement intended to relieve or discharge the obligation
or liability of any third person to any party to this Agreement,
nor shall any provision give any third person any right of action
over or against any party to this Agreement.
b)
The Company may
assign its rights under the Agreement only to any successor
(whether direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of the
business or assets of the Company that expressly agrees to assume
and perform this Agreement in the same manner and to the same
extent the Company would have been required to perform if no such
succession had taken place. This Agreement will be binding upon and
inure to the benefit of the Company and any such successor to the
Company, (and such successor shall thereafter be deemed to be
included in the term the “Company” for the purposes of
this Agreement, except to the extent that the result would be to
expand the restrictions applying to the Executive under Section
11), but will not otherwise be assignable, transferable or
`delegable by the Company.
c)
This Agreement will
inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
d)
This Agreement is
personal in nature and neither of the parties hereto shall, without
the consent of the other, assign, transfer or delegate this
Agreement or any rights or obligations hereunder except as
expressly provided in Sections 19(a) and 19(b). Without limiting
the generality or effect of the foregoing, the Executive’s
right to receive payments and benefits hereunder will (except as
otherwise expressly provided in any other applicable Company
Arrangement) not be assignable, transferable or delegable, whether
by pledge, creation of a security interest, or otherwise, other
than by a transfer by the Executive’s will or by the laws of
descent and distribution and, in the event of any attempted
assignment or transfer contrary to this Section 19(c), the Company
shall have no liability to pay any amount so attempted to be
assigned, transferred or delegated.
19
20)
Notices. All
communications, including without limitation notices, consents,
requests or approvals, required or permitted to be given hereunder
will be in writing and will be duly given when hand delivered or
dispatched by electronic facsimile transmission (with receipt
thereof confirmed), or five business days after having been mailed
by United States registered or certified mail, return receipt
requested, postage prepaid, or three business days after having
been sent by a nationally recognized overnight courier service such
as DHL, Federal Express or UPS, addressed to the Company (to the
attention of the Company Secretary) at its principal executive
offices and to the Executive at his principal residence, with
(during the Employment Term) a copy delivered to the
Executive’s principal office at the Company and with a copy
(which shall not constitute notice) also delivered to Ellenoff
Grossman & Schole LLP, 1345 Avenue of the Americas, 11th Floor,
New York, NY 10105, attention Sarah Williams, Esq., or to such
other address as either Party may have furnished to the other in
writing and in accordance herewith, except that notices of changes
of address shall be effective only upon receipt.
21)
Governing Law and Choice of
Forum.
a)
This Agreement will
be construed and enforced according to the laws of the State of
Maryland, without giving effect to the conflict of laws principles
thereof.
b)
To the extent not
otherwise provided for by Section 16 of this Agreement, the
Executive and the Company consent to the jurisdiction of all state
and federal courts located in Cupertino, Santa Clara County,
California, as well as to the jurisdiction of all courts of which
an appeal may be taken from such courts, for the purpose of any
suit, action, or other proceeding arising out of, or in connection
with, this Agreement or that otherwise arise out of the employment
relationship. Each Party hereby expressly waives any and all rights
to bring any suit, action, or other proceeding in or before any
court or tribunal other than the courts described above and
covenants that it shall not seek in any manner to resolve any
dispute other than as set forth in this paragraph. Further, the
Parties each hereby expressly waives any and all objections either
may have to venue, including, without limitation, the inconvenience
of such forum, in any of such courts. In addition, each of the
Parties consents to the service of process by personal service or
any manner in which notices may be delivered hereunder in
accordance with this Agreement.
22)
Severability. If any provision
of this Agreement or the application of any provision is held
invalid, unenforceable or otherwise illegal, the remainder of this
Agreement and the application of such provision will not be
affected, and the provision so held to be invalid, unenforceable or
otherwise illegal will be reformed to the extent (and only to the
extent) necessary to make it enforceable, valid or legal. To the
extent any provisions are held to be invalid, unenforceable or
otherwise illegal cannot be reformed, such provisions are to be
stricken herefrom and the remainder of this Agreement will be
binding on the Parties and their successors and assigns as if such
invalid or illegal provisions were never included in this
Agreement
from
the first instance.
20
23)
Survival of Provisions.
Notwithstanding any other provision of this Agreement, the
Parties’ respective rights and obligations under Sections 5,
9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 25 and 26,
will survive any termination of the Executive’s employment
under this Agreement.
24)
Representations and
Acknowledgements.
a)
The Executive
hereby represents that, except as he has disclosed to the Company,
he is not subject to any restriction on his ability to enter into
this Agreement or to perform his duties and responsibilities
hereunder, including, but not limited to, any covenant not to
compete with any former employer that would so restrict
him.
b)
The Executive
further represents that, to the best of his knowledge, his
performance of all the terms of this Agreement and as an employee
of the Company does not and will not breach any agreement with
another party, and that he will not knowingly disclose to the
Company or induce the Company to use any confidential or
proprietary information or material belonging to any previous
employer not included in the Company Group or others.
c)
Executive hereby
represents and warrants to Company that as of the date of execution
of this Agreement: (i) this Agreement will not cause or require
Executive to breach any obligation to, or agreement or confidence
with, any other person; (ii) Executive is not representing, or
otherwise affiliated in any capacity with, any other research
organizations, lines of products, manufacturers, vendors or
customers of the Company; and (iii) Executive has not been induced
to enter into this Agreement by any promise or representation other
than as expressly set forth in this Agreement.
d)
The Executive
hereby represents and agrees that, during the Restricted Period, if
the Executive is offered employment or the opportunity to enter
into any business activity, whether as owner, investor, executive,
manager, employee, independent consultant, contractor, advisor or
otherwise, the Executive will inform the offeror of the existence
of Sections 10, 11, 12, and 13 of this Agreement and provide the
offeror a copy thereof. The Executive authorizes the Company to
provide a copy of the relevant provisions of this Agreement to any
of the persons or entities described in this Section 24(c) and to
make such persons aware of the Executive’s obligations under
this Agreement.
21
e)
The Company
represents and warrants that (i) it is fully authorized by action
of its Board (and of any other person or body whose action is
required) to enter into this Agreement and to perform its
obligations under it, and (ii) upon the execution and delivery of
this Agreement by the Parties, this Agreement shall be its valid
and binding obligation, enforceable against it in accordance with
its terms, except to the extent that enforceability may be limited
by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally.
25)
Compliance with Code Section
409A. With respect to reimbursements or in-kind benefits
provided under this Agreement or under any other Company
Arrangement: (a) the Company will not provide for cash in lieu of a
right to reimbursement or in-kind benefits to which the Executive
has a right under this Agreement or under any other Company
Arrangement, (b) any reimbursement of provision of in-kind benefits
made during the Executive’s lifetime (or such shorter period
prescribed by a specific provision of this Agreement or of any
other Company Arrangement) shall be made not later than December
31st of the year following the year in which the Executive incurs
the expense, and (c) in no event will the amount of expenses so
reimbursed, or in-kind benefits provided, by the Company in one
year affect the amount of expenses eligible for reimbursement or
in-kind benefits to be provided, in any other taxable year. Each
payment, reimbursement or in-kind benefit made pursuant to the
provisions of this Agreement or of any other Company Arrangement
shall be regarded as a separate payment and not one of a series of
payments for purposes of Section 409A of the Code. It is intended
that any amounts payable under this Agreement, any Employee Plan or
any other Company Arrangement, and any exercise of the
Company’s and the Executive’s authority or discretion
hereunder, shall comply with the provisions of Section 409A of the
Code and the treasury regulations relating thereto so as not to
subject the Executive to the payment of the additional tax,
interest and any tax penalty which may be imposed under Code
Section 409A. In furtherance of this interest, to the extent that
any provision hereof would result in the Executive being subject to
payment of the additional tax, interest and tax penalty under Code
Section 409A, the Parties agree to amend this Agreement in order to
bring this Agreement into compliance with Code Section 409A; and
thereafter to interpret its provisions in a manner that complies
with Section 409A of the Code. Reference to Section 409A of the
Code is to Section 409A of the Internal Revenue Code of 1986, as
amended, and will also include any proposed, temporary or final
regulations, or any other guidance, promulgated with respect to
such Section by the U.S. Department of Treasury or the Internal
Revenue Service. Notwithstanding anything in this Agreement or
elsewhere to the contrary, and unless the Executive otherwise
agrees in a signed writing executed in connection with the
termination of his employment under this Agreement, the Executive
shall have no duties or responsibilities after the Termination Date
that are inconsistent with his having had a Separation from Service
on the Termination Date. If the Executive agrees, in a signed
writing that is executed in connection with the termination of his
employment under this Agreement, to undertake duties and
responsibilities that will result in his not incurring a Separation
from Service on the Termination Date, all references to the
Termination Date herein for the purposes of determining the
commencement of any severance payments and benefits that constitute
deferred compensation within the meaning of Section 409A shall mean
the date Executive incurs a Separation from Service.
Notwithstanding the foregoing, no particular tax result for the
Executive with respect to any income recognized by the Executive in
connection with this Agreement is guaranteed, and the Executive
shall be responsible for any taxes, penalties and interest imposed
on him under or as a result of Section 409A of the Code in
connection with payments and benefits made in accordance with the
terms of this Agreement.
22
26)
Amendment;
Waiver.
No provision of
this Agreement may be modified or amended other than through a
writing that is signed by the Parties and that expressly identifies
the provision being modified or amended. No waiver by either Party
at any time of any breach by the other Party hereto of compliance
with any provision of this Agreement to be performed by such other
Party will be effective unless in a signed writing that expressly
identifies the provision of this Agreement that is being waived,
nor shall any such waiver, deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent
time.
27)
Counterparts. This Agreement
may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together will constitute
one and the same agreement. Signatures delivered by facsimile
(including, without limitation, by “pdf”) shall be
effective for all purposes.
28)
Defined Terms.
a)
“Base
Salary” has the meaning set forth in Section
4(a).
b)
“Board”
has the meaning set forth in Section 3(a).
c)
“Bonus
Award” has the meaning set forth in Section
4(b)(i).
d)
“Cause”
Shall mean:
i.
any act or omission
constituting a material and intentional breach by the Executive of
any provisions of this Agreement after notice is delivered by the
Company that identifies the manner in which the breach occurred, if
within 30 days of such notice, the Executive fails to cure any such
failure capable of being cured;
ii.
the willful and
continued failure by the Executive to substantially perform his
duties hereunder, after demand for performance is delivered by the
Company that identifies the manner in which the Company believes
the Executive has not performed his duties, if, within 30 days of
such demand, the Executive fails to cure any such failure capable
of being cured;
iii.
any intentional
misconduct by the Executive (including, but not limited to,
misappropriation, fraud including with respect to the
Company’s accounting and financial statements, embezzlement
or conversion by the Executive of the Company’s or any of its
Subsidiary’s property in connection with the
Executive’s duties or in the course of the Executive’s
employment with the Company) that causes material harm to the
Company or any Subsidiary, financially or otherwise;
23
iv.
the conviction (or
plea of no contest) of the Executive for any felony, or the
indictment of the Executive for any felony (including, but not
limited to, any felony involving fraud, moral turpitude,
embezzlement or theft in connection with the Executive’s
duties or in the course of the Executive’s employment with
the Company); provided, however that if the Executive’s
employment is terminated for Cause based on an indictment, and such
indictment is thereafter resolved other than by a conviction or a
plea of no contest, the Executive shall be entitled to the benefits
(or the economic equivalent thereof) that he would have received
under Section 9(a) or 9(b) if those Sections had been applied as of
his Termination Date, provided that the Release Consideration
Period in Sections 9(a) and 9(b) shall be deemed not to have
commenced until the date that his indictment was
resolved;
v.
the commission of
any intentional or knowing violation of any material antifraud
provision of the federal or state securities laws;
vi.
there is a final,
non-appealable order in a proceeding before a court of competent
jurisdiction, or a final order arising out of an administrative
proceeding, finding that the Executive committed any willful
misconduct or criminal activity, either for his personal benefit or
in connection with his duties for the Company or any Subsidiary but
excluding traffic violations and other minor offenses, which
misconduct or activity is materially harmful to the interests of
the Company or any of its Subsidiaries;
vii.
Current use
or abuse of illegal substance that affects work
performance;
viii.
knowing and
material violation of specific prohibitions or requirements in the
Company’s Code of Conduct and Ethics (which the Executive
shall be deemed to have read and understood), which violation
causes significant harm to the Company, financially or otherwise,
with written notice of termination by the Company for Cause in each
case given by the Company to the Executive in accordance with
Section 20 prior to the Termination Date.
For
purposes of this Agreement, no act or failure to act on the part of
the Executive shall be deemed “intentional” or
“willful” or “knowing” if it was due
primarily to an error in judgment or gross negligence, and any act
or failure to act on the part of the Executive shall be deemed
“intentional” or “willful” or
“knowing” only if done or omitted to be done by the
Executive not in good faith and without reasonable belief that the
Executive’s action or omission was in the interest of the
Company. Failure to meet performance expectations, unless willful,
continuing, substantial, and uncured after demand for cure to the
extent such failure is curable, shall not be considered
“Cause.”
24
e)
“Change in
Control” means a change in control of the Company of a nature
that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Exchange Act
as in effect on the date of this Agreement, whether or not the
Company is then subject to such reporting requirement; provided
that, without limitation, a Change in Control shall be deemed to
have occurred if:
i.
any
“Person” (as defined in Sections 13(d) and 14(d) of the
Exchange Act) becomes the “beneficial owner” (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company representing thirty
percent (30%) or more of the combined voting power of the
Company’s then outstanding securities; provided that a Change
in Control shall not be deemed to occur under this clause (i) by
reason of the acquisition of securities by the Company or an
employee benefit plan (or any trust funding such a plan) maintained
by the Company;
ii.
during any period
of one year there shall cease to be a majority of the Board
comprised of “Continuing Directors” as hereinafter
defined; or
iii.
there occurs (A) a
merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into voting securities of the surviving entity)
more than eighty percent (80%) of the combined voting power of the
voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or (B)
the approval by the stockholders of the Company of a plan of
complete liquidation of the Company, or (C) the sale or disposition
by the Company of more than fifty percent (50%) of the
Company’s assets. For purposes of this Section 28(e)(iii), a
sale of more than fifty percent (50%) of the Company’s assets
includes a sale of more than fifty percent (50%) of the aggregate
value of the assets of the Company and its subsidiaries or the sale
of stock of one or more of the Company’s subsidiaries with an
aggregate value in excess of fifty percent (50%) of the aggregate
value of the Company and its subsidiaries or any combination of
methods by which more than fifty percent (50%) of the aggregate
value of the Company and its subsidiaries is sold.
25
iv.
For purposes of
this Agreement, a “Change in Control” will be deemed to
occur:
1.
on the day on which
a thirty percent (30%) or greater ownership interest described in
Section 28(e)(i) is acquired, provided that a subsequent increase
in such ownership interest after it first equals or exceeds thirty
percent (30%) shall not be deemed a separate Change in
Control;
2.
on the day on which
“Continuing Directors”, as hereinafter defined, cease
to be a majority of the Board as described in Section
28(e)(ii);
3.
on the day of a
merger, consolidation or sale of assets as described in Section
28(e)(iii); or
4.
on the day of the
approval of a plan of complete liquidation as described in Section
28(e)(iii).
v.
For purposes of
this Section 28(e), the words “Continuing Directors”
mean individuals who at the beginning of any period (not including
any period prior to the date of this Agreement) of one year
constitute the Board and any new Director(s) whose election by the
Board or nomination for election by the Company’s
stockholders was approved by a vote of at least a majority of the
Directors then still in office who either were Directors at the
beginning of the period or whose election or nomination for
election was previously so approved.
f)
“Code”
means the Internal Revenue Code of 1986, as amended.
g)
“Common
Stock” means common stock of the Company listed on NASDAQ
under the symbol “CBMG”.
h)
“Company
Arrangement” means any written plan, program, agreement or
arrangement of the Company or any of its Subsidiaries applicable to
the Executive and relating to employment, compensation or
benefits.
i)
“Company
Group” has the meaning set forth in Section
10(a).
j)
“Compensation
Committee” means the Compensation Committee of the Board or
its successor.
k)
“Competitor”
has the meaning set forth in Section 11(b).
26
l)
“Director”
means a member of the Board.
m)
“Disability”
or “Disabled” means due to illness or accidental
injury, a physical or mental incapacity that prevents the Executive
from performing his material and substantial duties for a total of
one hundred eighty (180) days in any twenty four (24) month period;
provided, however, for purposes of Section 5(b), (x) no termination
of the Executive’s employment shall be required for his
illness or incapacity to constitute “Disability” but
(y) his illness or incapacity must also constitute a disability
within the meaning of Section 409A(a)(2)(C) of the Code and
Treasury regulation section 1.409A-3(i)(4), as each may be amended
from time to time; provided, further, if the Executive shall not
agree with a determination to terminate his employment because of
Disability, the question of the Executive’s disability shall
be subject to the certification of a qualified medical doctor
agreed to by the Company and the Executive. All fees and other
costs relating to such certification shall be promptly paid by the
Company.
n)
“Employee
Plans” has the meaning set forth in Section
5(a).
o)
“Executive”
has the meaning set forth in the preamble, provided that, in the
event of the Executive’s death or a judicial determination of
his incapacity, the term shall mean (where appropriate) his
designated beneficiary or beneficiaries, his heirs, his estate, his
executor or executors, or his other legal representative or
representatives.
p)
“Good
Reason” means the occurrence of any of the following without
the Executive's consent: (i) a material reduction in Executive's
base salary; and (ii) any relocation of Executive's principal
office by more than 50 miles from his office in Maryland. Company
and Executive agree that “Good Reason“ shall not exist
unless and until Executive provides the Company with written notice
of the acts alleged to constitute Good Reason within ten (10) days
of Executive's knowledge of the occurrence of such event, and
Company fails to cure such acts within ten (10) days of receipt of
such notice, if curable. Executive must terminate his employment
within ten (10) days following the expiration of such cure period
for the termination to be on account of Good Reason.
q)
“Release”
means a release of claims in the form attached hereto as Exhibit
A.
r)
“Release
Consideration and Revocation Period” means the combined total
of the Release Consideration Period and the Release Revocation
Period.
27
s)
“Release
Consideration Period” means the 21-day period described in
the Release during which the Executive is entitled to consider
whether to sign it.
t)
“Release
Revocation Period” means the period pursuant to the terms of
an executed Release in which it may be revoked by the
Executive.
u)
“Restricted
Period” means the 24-month period following the date on which
the Executive’s employment with the Company terminates for
any reason.
v)
“Separation
from Service” means “separation from service”
from the Company and its subsidiaries as described under Section
409A of the Code and the guidance and Treasury regulations issued
thereunder. Separation from Service will occur on the date on which
the Executive’s level of services to the Company decreases to
21 percent or less of the average level of services performed by
the Executive over the immediately preceding 36-month period (or if
providing services for less than 36 months, such lesser period)
after taking into account any services that the Executive provided
prior to such date or that the Company and the Executive reasonably
anticipate the Executive may provide (whether as an employee or as
an independent contractor) after such date. For purposes of the
determination of whether the Executive has had a Separation from
Service, the term “Company” shall mean the Company and
any affiliate with which the Company would be considered a single
employer under Section 414(b) or 414(c) of the Code, provided that
in applying Sections 1563(a)(1), (2), and (3) of the Code for
purposes of determining a controlled group of corporations under
Section 414(b) of the Code, the language “at least 50
percent” is used instead of “at least 80 percent”
each place it appears in Sections 1563(a)(1), (2) and (3) of the
Code, and in applying Treasury Regulation Section 1.414(c)-2 for
purposes of determining trades or businesses (whether or not
incorporated) that are under common control for purposes of Section
414(c) of the Code, “at least 50 percent” is used
instead of “at least 80 percent” each place it appears
in Treasury Regulation Section 1.414(c)-2. In addition, where the
use of such definition of “Company” for purposes of
determining a Separation from Service is based upon legitimate
business criteria, in applying Sections 1563(a)(1), (2), and (3) of
the Code for purposes of determining a controlled group of
corporations under Section 414(b) of the Code, the language
“at least 20 percent” is used instead of “at
least 80 percent” at each place it appears in Sections
1563(a)(1), (2) and (3) of the Code, and in applying Treasury
Regulation Section 1.414(c)-2 for purposes of determining trades or
businesses (whether or not incorporated) that are under common
control for purposes of Section 414(c) of the Code, “at least
20 percent” is used instead of “at least 80
percent” at each place it appears in Treasury Regulation
Section 1.414(c)-2.
w)
“Subsidiary”
shall mean any entity, corporation, partnership (general or
limited), limited liability company, entity, firm, business
organization, enterprise, association or joint venture in which the
Company directly or indirectly controls twenty percent (20%) or
more of the voting interest.
28
IN
WITNESS WHEREOF, the Company has caused this Agreement to be signed
by the Chief Executive Officer pursuant to the authority of its
Board, and the Executive has executed this Agreement, as of the
Restatement Effective Date.
Cellular
Biomedicine Group Inc.
/s/____ Bizuo (Tony) Liu____
Bizuo
(Tony) Liu
Chief
Executive Officer
Executive
_/s/ Yihong Yao
Yihong
Yao
29
EXHIBIT A
FORM OF RELEASE
WHEREAS, Cellular
Biomedicine Group Inc., a Delaware corporation (the
“Company”) and (the “Executive”) are
parties to that certain employment agreement dated August 4, 2015
and amended and restated effective March 3, 2017 (the
“Agreement”);
WHEREAS, the
Executive’s employment with the Company under this Agreement
terminated on [ ] (the “Termination Date”);
and
WHEREAS, under
Section 9(a) and 9(b) of the Agreement, the Executive is required
to sign this release (the “Release”) within 21 days
after the Termination Date, in order to receive the payments to be
made and the benefits to be received by the Executive pursuant to
Section 9(a) or 9(b) of the Agreement.
NOW
THEREFORE, in consideration of the promises and agreements
contained herein and in the Agreement and for other good and
valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, and intending to be legally bound, the
Executive agrees as follows:
This
Release shall become effective on the Effective Date, as defined in
Section 7(b) hereof.
1)
In consideration of
the payments to be made and the benefits to be received by the
Executive pursuant to Section 9(a) or 9(b) of the Agreement, the
Executive, for himself and the Executive’s dependents,
successors, assigns, heirs, executors and administrators (and the
Executive’s and their legal representatives of every kind),
(the “Executive Releasors”), hereby irrevocably and
unconditionally releases, acquits and forever discharges the
Company and its affiliated companies and their past and present
parents, subsidiaries, affiliated corporations, partnerships, joint
ventures and their successors and assigns (the “Company
Affiliated Group”), and their current and former officers,
directors, stockholders, members, employees, heirs, assigns,
representatives, insurers, agents and counsel and all persons
acting by, through, under or in concert with any of them (but as to
any such identified categories of persons, including those acting
by, through, under or in concert with them, only in such capacity
in such designated category or relationship to such designated
category) (together with the Company Affiliated Group, the
“Company Releasees”), from any and all arbitrations,
complaints, claims, charges, demands, controversies, suits,
proceedings and causes of action with respect to liabilities,
obligations, promises, agreements, damages, costs, losses, debts or
expenses including attorneys’ fees and other legal costs, of
any kind whatsoever and every description that are related to the
Executive’s employment or termination of employment, whether
known or unknown, suspected or unsuspected, which the Executive now
has, may have, claimed to have, or any time had against any of the
Company Affiliated Group arising prior to the Effective Date (as
defined in Section 7(b) below) (collectively “Claims”),
and the Executive agrees not to assert any such
Claims.
30
a)
More specifically,
this release of Claims includes, without express or implied
limitation, the release of all Claims of wrongful termination of
employment whether in contract or tort; all Claims of intentional,
reckless, or negligent infliction of emotional distress; all Claims
of breach of any express or implied contract or express or implied
covenant of employment, including the covenant of good faith and
fair dealing; all Claims of interference with contractual or
advantageous relations, whether prospective or existing; all Claims
of deceit or misrepresentation; all Claims of discrimination under
local, state or federal law; any legal restrictions on the right of
any of the Company Affiliated Group to terminate employees; Claims
arising under any federal, state, local statutory or common law or
other governmental statute, regulation or ordinance, including,
without limitation, the Sarbanes-Oxley Act of 2002; Section 1981 of
Title 42 of the United States Code; 42 U.S.C. §1981; and/or
Title VII of the Civil Rights Act of 1964; the Age Discrimination
in Employment Act; the Older Workers’ Benefit Protection Act;
the Americans with Disabilities Act; the Equal Pay Act; the Fair
Labor Standards Act; the Family and Medical Leave Act; the Employee
Retirement Income Security Act of 1974, as amended; the
Rehabilitation Act of 1973; the Racketeer Influenced and Corrupt
Organizations Act; the Worker Adjustment and Retraining
Notification Act; all Claims of defamation or damage to reputation;
all Claims for reinstatement; all Claims for punitive or emotional
distress damages; and all Claims for wages, bonuses, severance,
back or front pay or other forms of compensation which are based
upon or arise from the acts, practices, transactions, events,
and/or facts underlying any wage claim that was or could have been
asserted.
b)
Notwithstanding the
foregoing, nothing herein shall constitute a release by the
Executive of any of the following:
i.
any rights he has
under the Agreement, including any right to enforce any of the
terms thereof, and any rights he has under this Release, including
any right to enforce the terms thereof;
ii.
any Claim for
payments, benefits or other entitlements, to which the Executive is
or will be entitled under the terms of any compensation or benefit
plan, program or other arrangement maintained by any of the Company
Affiliated Group, including without limitation any incentive or
deferred compensation plan, any pension plan or benefits under any
medical, dental, vision, life insurance, disability insurance or
other welfare benefit plan;
iii.
any Claim for
indemnification the Executive may have under applicable laws, under
the applicable constituent documents (including bylaws and
certificates of incorporation) of any of the Company Affiliated
Group, under any applicable insurance policy the Company Affiliated
Group may maintain, or any under any other written agreement or
arrangement with any of the Company Affiliated Group, with respect
to any liability, costs or expenses the Executive incurs or has
incurred as a director, officer or employee of any of the Company
Affiliated Group;
31
iv.
any Claim the
Executive may have to obtain contribution as permitted by law in
the event of entry of judgment against the Executive as a result of
any act or failure to act for which the Executive and any of the
Company Affiliated Group are jointly liable;
v.
any Claim that by
law may not be released by private agreement without judicial or
governmental review and approval;
vi.
any Claim that
arises after the Effective Date; and
vii.
any Claim the
Executive has against any of the Company Releasees solely in his
capacity as a shareholder of Cellular Biomedicine Group Inc. or of
any affiliate of the Company or as a former shareholder of Cellular
Biomedicine Group Inc.
2)
The Executive
understands and acknowledges that the Company does not admit any
violation of law, liability or invasion of any of his rights and
that any such violation, liability or invasion is expressly denied.
The consideration provided to the Executive for this Release is
made for the purpose of settling and extinguishing all Claims
arising prior to the Effective Date that relate to his employment
or termination of employment with the Company that the Executive
ever had or now may have against the Company or any of the other
Company Releasees to the extent provided in this Release. The
Executive further agrees and acknowledges that no representations,
promises or inducements have been made by any of the Company
Releasees to the Executive with respect to this Release other than
as appear in the Agreement or this Release.
3)
The Executive
agrees to release and discharge each Company Releasee, not only
from any and all Claims which he could make on his own behalf, but
also Claims that may or could be brought by any person or
organization on his behalf, for monetary relief, and he
specifically waives any right to recovery, directly or indirectly,
in connection with any class or collective action or representative
proceeding in which a Claim or Claims against any Company Releasee
for monetary relief may arise, in whole or in part, from any event
which occurred up through and including the Effective
Date.
4)
The Executive
acknowledges that his waiver and release of rights and claims as
set forth in this Release is in exchange for valuable consideration
which he would not otherwise be entitled to receive.
5)
The parties
understand, agree and intend that, except as otherwise provided in
Section 1(b) above, upon the Executive’s receipt of all of
the payments and benefits to be paid or provided to him by the
Company pursuant to Section 9(a) and 9(b) of the Agreement, he will
have received complete satisfaction of any and all Claims arising
prior to the Effective Date , whether known, suspected, or unknown,
that he may have or had against any of the Company Releasees that
are related to his employment, or termination of employment, with
any of them.
32
6)
The Executive
agrees to pay any reasonable legal fees or costs incurred by any of
the Company Affiliated Group as a result of any breach of his
promises in this Release, including his promise to fully release
each member of the Company Affiliated Group from all Claims and to
compensate any such company for its legal costs, including
attorneys’ fees incurred by such company as a result of any
breach of the Release, except to the extent that he challenges the
validity of the Release under the Age Discrimination in Employment
Act, in which case such company may only recover such fees and
expenses as may be permitted by state and federal law.
7)
The Executive
further represents, agrees and acknowledges that:
a)
he has been advised
by the Company to consult with his own legal counsel prior to
executing and delivering this Release, has had an opportunity to
consult with and to be advised by legal counsel of his choice,
fully understands the terms of this Release, and enters into this
Release freely, voluntarily, without coercion or duress of any kind
and intending to be bound;
b)
he has been given
the opportunity to consider this Release for a period of at least
21 days after the Termination Date (as defined in the Agreement).
In the event that the Executive has executed this Release within
less than such 21-day period, the Executive acknowledges that his
decision to so execute the Release was entirely voluntary and that
he had the opportunity to consider this Release for the entire 21-
day period. The Executive and the Company acknowledge that for a
period of seven (7) days from the date that the Executive executes
this Release (the “Revocation Period”), he shall retain
the right to revoke this Release by written notice that is received
by the Company’s Secretary before the end of such Revocation
Period. Provided that this Release is not revoked pursuant to the
preceding sentence, this Release shall become effective, binding,
irrevocable and enforceable on the date immediately following the
last day of the Revocation Period (the “Effective
Date”). If the Executive timely exercises his right to revoke
this Release, the Executive will forfeit his right to receive any
of the benefits that were conditioned on this Release becoming
effective, without affecting the effectiveness of the termination
of the Executive’s employment with the Company, and without
altering the termination of the Executive’s employment from
all offices and any directorships and any fiduciary
positions;
c)
in executing this
Release, the Executive does not rely and has not relied upon any
representation or statement not set forth herein or in the
Agreement made by the Company with regard to the subject matter,
basis, or effect of this Release or otherwise; and
33
d)
for the purpose of
implementing a full and complete release and discharge of all
Claims against the Company Affiliated Group, the Executive
expressly acknowledges that this Release is intended to include in
its effect, to the extent herein provided, all Claims related to
his employment or termination of employment with any of the Company
Affiliated Group arising before the Effective Date , which the
Executive does not know or suspect to exist in his favor at the
time of execution hereof, and that this Release contemplates the
extinguishment of any such Claim or Claims. IN EXECUTING THIS
RELEASE, THE EXECUTIVE EXPRESSLY REPRESENTS THAT HE IS DOING SO
VOLUNTARILY AND OF HIS OWN FREE WILL AND THAT HE IS OF SOUND MIND
AT THE TIME OF SAID EXECUTION.
8)
The Executive
represents that he will not seek to recover any monetary damages in
the future with respect to Claims that arose prior to the Effective
Date; provided, however, that nothing in this Release shall not
limit the Executive from commencing any proceeding for the purpose
of enforcing the Executive’s rights arising under, or
preserved by, this Release or the Agreement.
9)
The Executive
waives and releases any Claim that the Executive has or may have to
reemployment.
10)
This Release does
not waive any of the rights of any of the Company Affiliated Group
to enforce any clawback policy including to the extent it may be
required under final NASDAQ Stock Market (or other applicable
exchange) listing standards subsequently adopted. Executive agrees
that as of the date set forth below, Executive has not reported
information to the Securities and Exchange Commission concerning,
and is not aware of, any securities law compliance failure at any
of the Company Affiliated Group by any person that has not been
reported to the Compliance Officer of the Company, and further
agrees to report to the Compliance Officer of the Company
information Executive learns about any securities law compliance
failure by any of the Company Affiliated Group after the date set
forth below before taking any further action.
34
IN
WITNESS WHEREOF, the Executive has executed and delivered this
Release on the date set forth below.
|
Dated:
____________________________________________
|
|
|
|
_____________________________________
Yihong
Yao
|
THIS RELEASE IS INVALID IF SIGNED BY THE EXECUTIVE BEFORE
THE
TERMINATION DATE
35