{"id":39030,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/employment-agreement-chinamallusa-com-inc-and-max-p-chen.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"employment-agreement-chinamallusa-com-inc-and-max-p-chen","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/employment-agreement-chinamallusa-com-inc-and-max-p-chen.html","title":{"rendered":"Employment Agreement &#8211; ChinaMallUSA.com Inc. and Max P. Chen"},"content":{"rendered":"<pre>                              EMPLOYMENT AGREEMENT\n\n         EMPLOYMENT  AGREEMENT,  dated as of October  22,  1999,  by and between\nChinaMallUSA.com,  Inc., a Utah corporation (the \"Company\"), and Max P. Chen, an\nindividual residing at 108-31 66 Rd. Forest Hills, NY 11375 (the \"Executive\").\n\n                              W I T N E S S E T H:\n                               - - - - - - - - - -\n\n         WHEREAS,  the Company  desires to secure the services of the  Executive\nupon the terms and conditions hereinafter set forth; and\n\n         WHEREAS,  the Executive  desires to render services to the Company upon\nthe terms and conditions hereinafter set forth.\n\n         NOW, THEREFORE, the parties mutually agree as follows:\n\n         Section 1.  EMPLOYMENT.  The Company hereby  employs  Executive and the\nExecutive  hereby accepts such  employment,  as the Chief Executive  Officer and\nDirector of the Company,  subject to the terms and  conditions set forth in this\nAgreement.\n\n         Section 2. DUTIES.  The  Executive  shall serve as the Chief  Executive\nOfficer and Director and shall  properly  perform the duties of Chief  Executive\nOfficer of the Company  and duties as may be lawfully  assigned to him from time\nto time by the Board of Directors  of the Company.  If requested by the Company,\nthe  Executive  shall serve on the Board of Directors or any  committee  thereof\nwithout  additional  compensation.  During  the  term  of  this  Agreement,  the\nExecutive shall devote all of his business time to the performance of his duties\nhereunder unless otherwise authorized by the Board of Directors.\n\n\n\n         Section 3. TERM OF EMPLOYMENT; VACATION.\n                    -----------------------------\n\n                  The term of the Executives  employment  shall be commencing on\nthe date hereof and end on December  31, 2002 (the  \"Term\"),  subject to earlier\ntermination in accordance with the terms of this Agreement.  The Executive shall\nbe entitled to four (4) weeks vacation during each year of the Term.\n\n         Section 4. COMPENSATION OF EXECUTIVE\n                    -------------------------\n\n         4.1  SALARY.  The  Company  shall pay the  Executive a base salary (the\n\"Base  Salary\")  during the time  periods and in the amounts set forth  opposite\nsuch time period,  less such  deductions  as shall be required to be withheld by\napplicable law and regulations, as set forth below:\n\n                     TIME PERIOD                  ANNUAL SALARY RATE\n                     -----------                  ------------------\n\n                 6\/1\/99 - 11\/30\/99                        $60,000\n                12\/1\/99 -  5\/31\/00                        $96,000\n                 6\/1\/01 -  5\/31\/02                       $192,000\n                 6\/1\/02 - 12\/31\/02                       $384,000\n\n         The Base  Salary  payable  to  Employee  shall be paid at such  regular\nweekly,  biweekly or semi-monthly  time or times as the Company makes payment of\nits regular  payroll in the regular course of business.  Commencing on the first\nanniversary of the date hereof,  and on each anniversary  thereafter  during the\nterm of this Agreement,  the Base Salary may be increased in the sole discretion\nof the Company's Board of Directors.\n\n         4.2  PERFORMANCE  BONUS.  During each year of the Term,  the  Executive\nshall be entitled to receive a performance bonus (the \"Performance Bonus\") based\nupon the Company's financial performance and the Executive's  performance of his\nduties  all  as\n\n                                      -2-\n\n\ndetermined by the Company's  Board of Directors (or the  Compensation  Committee\nthereof). Executive understands and acknowledges that the Board of Directors (or\nthe Compensation  committee, as the case may be) may conclude that a Performance\nBonus has not been earned by the Executive,  and therefore, no Performance Bonus\nwill be paid.\n\n         4.3 STOCK OPTIONS. Upon the execution of this Agreement,  the Executive\nshall be granted options to purchase a total of Three million (3,000,000) shares\nof the Company's  Common Stock at an exercise price equal to $0.56250 per share.\nThe price is close market on  10.22.1999.  The options shall be  exercisable  in\nthree  traunches  and shall expire  three years after the  Effective  Date.  The\noptions shall vest with respect to 30% of the shares or (900,000  shares) within\nthe first  year of the  employment;  with  respect to an  additional  35% of the\nshares (or 1,050,000  shares within the second year of the employment;  and with\nrespect to the remaining 35% of the shares (or 1,050,000 shares) within the last\nyear of the employment.\n\n         Exercise of any of the Options by Executive  shall be by written notice\nto Company  accompanied by Executive's  certified or bank check for the purchase\nprice of the shares  being  purchased.  Upon receipt of such notice and payment,\nCompany  shall  cause to be issued the number of shares for which the Option has\nbeen exercised,  registered in the name of Executive.  Such shares, when issued,\nshall be fully paid and non-assessable.\n\n         4.4  EXPENSES.  During  the  Term,  the  Company  shall  reimburse  the\nExecutive  for  all   reasonable  and  necessary   travel   expenses  and  other\ndisbursements incurred by the Executive on behalf of the Company, in performance\nof the  Executive's  duties  hereunder,  assuming  Executive has received  prior\napproval for such travel expenses and  disbursements by the Company's  President\nto the extent possible.\n\n                                      -3-\n\n\n         4.5  BENEFITS.  The  Executive  shall be  permitted  during the Term to\nparticipate in any hospitalization or disability insurance plans, D&amp;O insurance,\n3 million life insurance health programs,  pension plans, bonus plans or similar\nbenefits that may be available to other  executives of the Company to the extent\nthe Executive is eligible under the terms of such plans or programs. The Company\nagrees to provide the Executive with a paid health  insurance plan comparable to\ninsurance  coverage granted to the other Company  Executives.  In the event that\nthe Executive elects not be covered the benefit plans provided by the Company to\nits other executives,  the Company shall pay to the Executive an amount equal to\nthe  amount  the  Company  would  have  paid on the  Executive's  behalf of such\nbenefits, less customary withholding.\n\n         Section  5.   DISABILITY  OF  THE   EXECUTIVE.   If  the  Executive  is\nincapacitated or disabled by accident, sickness or otherwise so as to render the\nExecutive  mentally or physically  incapable of performing the services required\nto be  performed  under this  Agreement  for a period of sixty (60)  consecutive\ndays, or for a period of 180 days during any period of 360  consecutive  days (a\n\"Disability\"),  the  Company  may,  at the time or any time  thereafter,  at its\noption,   terminate  the  employment  of  the  Executive  under  this  Agreement\nimmediately upon giving the Executive written notice to that effect.\n\n         Section 6. TERMINATION.\n                    ------------\n\n         (a) The Company may terminate  the  employment of the Executive and all\nof the  Company's  obligations  under this  Agreement  at any time for Cause (as\nhereinafter  defined) by giving the Executive notice of such  termination,  with\nreasonable  specificity  of the  details  thereof.  \"Cause\"  shall  mean (i) the\nExecutive's  misconduct  that could  reasonably  be  expected to have a material\nadverse effect on the business and affairs of the Company,  (ii) the Executive's\ndisregard of lawful instructions of the Company's Board of Directors, or neglect\nof duties or\n\n                                      -4-\n\n\nfailure to act,  which,  in each case,  could  reasonably  be expected to have a\nmaterial  adverse  effect on the business and affairs of the Company,  (iii) the\nExecutive engages in conduct which, in the opinion of management, is subordinate\nor  abusive  to  the  Company's  management  or  executive  officers,  (iv)  the\ncommission  by the  Executive  of an act  constituting  common law  fraud,  or a\nfelony,  or criminal act against the Company or any affiliate  thereof or any of\nthe assets of any of them, (v) the  Executive's  abuse of alcohol or other drugs\nor controlled  substances,  or conviction of a crime involving moral  turpitude,\n(vi) the Executive's  material breach of any of the agreements  contained herein\nprovided  Executive  shall have the right to cure such  breach  during the sixty\n(60) day period after receiving written notification of such breach or (vii) the\nExecutive's death or resignation  hereunder.  A termination  pursuant to Section\n6(a)(i), (ii), (iv) (other than as a result of a conviction of a crime involving\nmoral turpitude) or (v) shall take effect 10 days after the giving of the notice\ncontemplated  hereby  unless the  Executive  shall,  during such 10-day  period,\nremedy to the reasonable  satisfaction  of the Board of Directors of the Company\nthe misconduct,  disregard,  abuse or breach specified in such notice; provided,\nhowever,  that such termination shall take effect immediately upon the giving of\nsuch  notice  if the  Board  of  Directors  of the  Company  shall,  in its sole\ndiscretion, have determined that such misconduct,  disregard, abuse or breach is\nnot  remediable  (which  determination  shall  be  stated  in  such  notice).  A\ntermination  pursuant to Section (6)(iii),  (iv) (as result of a conviction of a\ncrime involving moral turpitude) or (vi) shall take effect  immediately upon the\ngiving of the notice contemplated hereby.\n\n         (b) The Company may terminate  the  employment of the Executive and all\nof the  Company's  obligations  under  this  Agreement  (except  as  hereinafter\nprovided) at any time during the  Employment  Period without Cause by giving the\nExecutive written notice of such\n\n                                      -5-\n\n\ntermination,  to be  effective  15 days  following  the  giving of such  written\nnotice. For convenience of reference, the date upon which any termination of the\nemployment of the Executive pursuant to Sections 5 or 6 shall be effective shall\nbe hereinafter referred to as the \"Termination Date\".\n\n         Section 7. EFFECT OF TERMINATION OF EMPLOYMENT.\n\n\n         (a) Upon the termination of the Executive's employment for (i) Cause or\n(ii) a Disability,  neither the Executive nor the Executive's  beneficiaries  or\nestate shall have any further  rights under this Agreement or any claims against\nthe Company arising out of this  Agreement,  except the right to receive (i) the\nunpaid portion of the Base Salary provided for in Section 4.1, computed on a pro\nrata  basis  to  the  Termination  Date  (the  \"Unpaid  Salary  Amount\"),   (ii)\nreimbursement  for any expenses for which the Executive shall not have therefore\nbeen reimbursed,  (the \"Expense  Reimbursement Amount\") and (iii) unpaid amounts\nowed  to  the  Executive  for  accrued  an  unused  vacation  days  through  the\nTermination  Date,  (iv) stock  option of  1,000,000  shares fully vested on the\nTermination  Date and exercisable  with 6 months of the Termination  Date in the\ncase of Executive  being  terminated  for causes under Section b(i),  (ii),  and\n(iii).\n\n         (b) Upon the termination of the  Executive's  employment for other than\nCause or a Disability,  neither the Executive nor the Executive's  beneficiaries\nor estate  shall have any  further  rights  under this  Agreement  or any claims\nagainst the Company arising out of this  Agreement,  except the right to receive\n(i) the Unpaid Salary Amount, (ii) the Expense  Reimbursement  Amount, and (iii)\nseverance  compensation  equal  to the Base  Salary  for the  lesser  of (i) the\nremainder of the Term (as if this Agreement was not  terminated) or (ii) six (6)\nmonths,  50% of which is  payable  on the  Termination  Date and 50% of which is\npayable in equal monthly\n\n                                      -6-\n\n\ninstallments  during  the  period  commencing  sixty  (60)  days  following  the\nTermination Date and continuing for a period of twelve (12) months thereafter.\n\n         Section 8. DISCLOSURE OF CONFIDENTIAL INFORMATION. Executive recognizes\nthat he has had and will  continue  to have  access to secret  and  confidential\ninformation  regarding  the Company,  including  but not limited to its customer\nlist, products,  know-how,  and business plans. Executive acknowledges that such\ninformation  is of great  value to the  Company,  is the  sole  property  of the\nCompany,  and  has  been  and  will  be  acquired  by  him  in  confidence.   In\nconsideration  of the obligations  undertaken by the Company  herein,  Executive\nwill not, at any time, during or after his employment hereunder, reveal, divulge\nor make known to any person,  any information  acquired by Executive  during the\ncourse of her employment,  which is treated as confidential by the Company.  The\nprovisions of this Section 8 shall survive Executive's employment hereunder.\n\n         Section 9. COVENANT NOT TO COMPETE.\n\n         (a)  Executive  recognizes  that the  services to be  performed  by him\nhereunder are special, unique and extraordinary.  The parties confirm that it is\nreasonably necessary for the protection of the Company that Executive agree, and\naccordingly,  Executive  does  hereby  agree,  that he shall  not,  directly  or\nindirectly,  at any time during the term of the  Agreement  and the  \"Restricted\nPeriod\" (as defined in Section 9(e) below):\n\n                  (i) except as provided in Subsection (c) below,  be engaged in\n         the sale,  marketing or distribution of __________  products or provide\n         technical    assistance,    advice   or   counseling    regarding   the\n         ________________  industry  in any state in the United  States in which\n         the Company or any affiliate thereof is engaged in business,  either on\n         her  own  behalf  or as an  officer,  director,  stockholder,  partner,\n\n                                      -7-\n\n\n         consultant,  associate,  employee, owner, agent, creditor,  independent\n         contractor, or co-venturer of any third party; or\n\n                  (ii)  employ or engage,  or cause or  authorize,  directly  or\n         indirectly,  to be employed or engaged,  for or on behalf of herself or\n         any third party,  any employee or agent of the Company or any affiliate\n         thereof.\n\n         (b) Executive  hereby agrees that he will not,  directly or indirectly,\nfor or on behalf of herself or any third  party,  at any time during the term of\nthe  Agreement  and during the  Restricted  Period  solicit any customers of the\nCompany or any affiliate thereof.\n\n         (c) If any of the  restrictions  contained  in this  Section 9 shall be\ndeemed to be  unenforceable  by reason of the extent,  duration or  geographical\nscope thereof, or otherwise, then the court making such determination shall have\nthe  right  to  reduce  such  extent,  duration,  geographical  scope,  or other\nprovisions  hereof,  and in its reduced form this Section shall then enforceable\nin the manner contemplated hereby.\n\n         (d) This  Section 9 shall not be construed  to prevent  Executive  from\nowning,  directly or indirectly,  in the aggregate, an amount not exceeding five\npercent (5%) of the issued and outstanding voting securities of any class of any\ncompany whose voting capital stock is traded on a national  securities  exchange\nor on the over-the-counter market other than securities of the Company.\n\n         (e) The term \"Restricted Period,\" as used in this Section 9, shall mean\nthe period of Executive's  actual  employment  hereunder plus twelve (12) months\nafter the Termination Date.\n\n                                      -8-\n\n\n         (f) The  provisions of this Section 9 shall survive the end of the Term\nas provided in Section 9(e) hereof.\n\n         Section 10. MISCELLANEOUS.\n                     --------------\n\n         10.1 INJUNCTIVE RELIEF.  Executive acknowledges that the services to be\nrendered  under the  provisions of this  Agreement are of a special,  unique and\nextraordinary  character and that it would be difficult or impossible to replace\nsuch  services.  Accordingly,  Executive  agrees  that any Breach or  threatened\nbreach by him of Sections 8 or 9 of this  Agreement  shall entitle  Company,  in\naddition to all other legal  remedies  available to it, to apply to any court of\ncompetent  jurisdiction to seek to enjoin such breach or threatened  breach. The\nparties  understand  and intend  that each  restriction  agreed to by  Executive\nhereinabove  shall be  construed  as separable  and  divisible  from every other\nrestriction,  that the  unenforceability  of any restriction shall not limit the\nenforceability,  in whole or in part, of any other restriction,  and that one or\nmore or all of such  restrictions  may be  enforced  in  whole or in part as the\ncircumstances  warrant.  In the event that any  restriction in this Agreement is\nmore  restrictive  than  permitted by law in the  jurisdiction  in which Company\nseeks  enforcement  thereof,  such  restriction  shall be  limited to the extent\npermitted by law.\n\n         10.2  ASSIGNMENTS.  Neither  Executive  nor the  Company  may assign or\ndelegate any of their rights or duties under this Agreement  without the express\nwritten consent of the other.\n\n         10.3 ENTIRE AGREEMENT. This Agreement constitutes and embodies the full\nand  complete  understanding  and  agreement  of the  parties  with  respect  to\nExecutive's  employment  by Company,  supersedes  all prior  understandings  and\nagreements,  whether oral or written,  between Executive and Company,  and shall\nnot be amended,  modified or changed\n\n                                      -9-\n\n\nexcept by an  instrument  in writing  executed by the party to be  charged.  The\ninvalidity  or partial  invalidity of one or more  provisions of this  Agreement\nshall not invalidate any other provision of this Agreement.  No waiver by either\nparty of any provision or condition to be performed  shall be deemed a waiver of\nsimilar or dissimilar  provisions or conditions at the same time or any prior or\nsubsequent time.\n\n         10.4 BINDING  EFFECT.  This Agreement shall inure to the benefit of, be\nbinding upon and enforceable  against,  the parties hereto and their  respective\nsuch successors, heirs, beneficiaries and permitted assigns.\n\n         10.5  HEADINGS.  The  headings  contained  in  this  Agreement  are for\nconvenience  of  reference  only and shall not affect in any way the  meaning or\ninterpretation of this Agreement.\n\n         10.6 NOTICES. All notices,  requests,  demands and other communications\nrequired or  permitted  to be given  hereunder  shall be in writing and shall be\ndeemed to have been duly given when personally delivered,  sent by registered or\ncertified  mail,  return  receipt  requested,  postage  prepaid,  or by  private\novernight mail service (e.g.,  Federal  Express) to the party at the address set\nforth above or to such other address as either party may  hereafter  give notice\nof in accordance  with the provisions  hereof.  Notices shall be deemed given on\nthe  sooner  of the date  actually  received  or the  third  business  day after\nsending.\n\n         10.7 GOVERNING  LAW. This Agreement  shall be governed by and construed\nin  accordance  with the laws of the State of New York without  giving effect to\nsuch  State's  conflicts  of laws  provisions  and  each of the  parties  hereto\nirrevocably  consents  to the  jurisdiction  and venue of the  federal and state\ncourts located in the State of New York, County of New York.\n\n                                      -10-\n\n\n         10.8 COUNTERPARTS. This Agreement may be executed simultaneously in two\nor more  counterparts,  each of which  shall be deemed an  original,  but all of\nwhich together shall constitute one of the same instrument.\n\n         IN WITNESS WHEREOF,  the parties hereto have executed this Agreement as\nof the date set forth above.\n\n                                               CHINAMALLUSA.COM, INC.\n\n\n                                               By:\/s\/ Kristy Ye\n                                                  ------------------------------\n                                                  Name: Secretary\n                                                  Title:\n\n\n                                                  \/s\/ Max P. Chen\n                                                  ------------------------------\n\n\n\n                                      -11-\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7084],"corporate_contracts_industries":[9513],"corporate_contracts_types":[9539,9544],"class_list":["post-39030","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-chinamallusacom-inc","corporate_contracts_industries-technology__software","corporate_contracts_types-compensation","corporate_contracts_types-compensation__employment"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39030","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39030"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39030"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39030"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39030"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}