Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (the "Agreement") is effective this 22
nd day of September 2008 (the "Effective Date"), between
American Lorain Corporation, a Delaware corporation with its
principal place of business located at Beihuan Zhong Road, Junan
County, Shandong, China 276600 (the "Company"), and Yilun Jin,
residing in
(the "Executive").
WHEREAS, the Company desires to employ the
Executive as its Chief Financial Officer, and Executive desires to
accept such employment on terms and conditions hereinafter set
forth;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the Company and the Executive agree as
follows:
1.
TERM. The Company offers to employ the
Executive, and the Executive agrees to be employed by the Company,
in accordance with the terms and subject to the conditions of this
Agreement commencing on the Effective Date and terminating on the
first anniversary of the Effective Date (the "Term"), unless
terminated prior thereto in accordance with the provisions of
Section 10 herein. The Term shall be automatically renewed for
successive one (1) year terms, unless either party gives the other
party written notice of its intention not to renew the Agreement no
later than 90 days prior to the expiration of the then current
term. A determination by the Company not to renew this Agreement
without "Cause" shall be deemed a termination of employment for
purposes of Section 10(d) herein and the terms thereof shall
apply.
2.
POSITION AND DUTIES. Executive agrees to be
employed by the Company during the Term upon the terms and subject
to the conditions set forth in this Agreement. Executive shall
serve as the Chief Financial Officer of the Company and shall
report to the Board of Directors of the Company (the "Board of
Directors"). Throughout the Term, Executive shall faithfully and
diligently perform Executive’s duties in conformity with the
directions of the Company and serve the Company to the best of
Executive’s ability. Executive shall devote his full business
time and best efforts to the business and affairs of the Company.
In his capacity as the Chief Financial Officer of the Company,
Executive shall have such duties and responsibilities as may be
prescribed by the Board of Directors.
3.
BUSINESS OPPORTUNITIES. The Executive covenants
and agrees that for so long as he is employed by the Company, the
Executive shall inform the Company of each and every business
opportunity related to the business of the Company of which the
Executive becomes aware, and that the Executive will not, directly
or indirectly, exploit any such opportunity for the
Executive’s own account, nor will the Executive render any
services to any other person or business, acquire any interest of
any type in any other business or engage in any activities that
conflict with the Company’s best interests or which is in
competition with the Company. The Executive affirms that no
obligation exists between the Executive and any other entity which
would prevent or impede the Executive’s immediate and full
performance of every obligation of this Agreement.
4.
HOURS OF WORK. The Executive’s normal days
and hours of work shall coincide with the Company’s regular
business hours. The nature of the Executive’s employment with
the Company requires flexibility in the days and hours that the
Executive must work, and may necessitate that the Executive work on
other or additional days and hours. The Company reserves the right
to require the Executive, and the Executive agrees, to work during
other or further days or hours than the Company’s normal
business hours.
1
5.
LOCATION. The location of the Executive’s
employment with Company shall primarily be the Company’s
Beijing office located in Miyun County. The Company may, in its
sole discretion, require the Executive to travel to and reside in,
on a temporary, indefinite or permanent basis, in any other
location throughout the world in which the Company or any of its
affiliates has, or may have, offices.
6.
BASE SALARY; BONUS.
a.
In consideration of the Executive’s
services under this Agreement, the Company shall pay or cause to
pay, and the Executive agrees to accept, during the one year period
following the Effective Date (the "First Year"), a monthly base
salary of RMB 60,000 (approximately US $8,695), less all applicable
taxes and other appropriate deductions, paid in accordance with the
Company’s standard payroll practices. Following the First
Year, the Executive’s base salary shall be reviewed annually
by the Board of Directors of the Company. The decision to increase
or decrease the Executive’s base salary and the amount of any
such increase or decrease are within the sole discretion of the
Company’s Compensation Committee and the Board of Directors.
Nothing contained in this Section 6(a) is intended to be, or should
be construed as, a promise or guarantee by the Company to increase
the Executive’s base salary. The Company reserves the right,
in its sole discretion, and the Executive hereby acknowledges the
Company’s right, to make no such payments or make reduced
payments in connection with any periods of unauthorized or
unjustified absence from work or in the event that the Executive is
unavailable or unable to perform the Executive’s duties for
the Company without adequate justification, as determined by the
Company in its sole discretion.
b.
At the end of each year, the Compensation
Committee and the Board of Directors shall evaluate the
Executive’s performance for the prior year and determine
whether or not to grant the Executive an annual cash bonus. The
decision whether or not to grant the Executive’s annual cash
bonus, and the amount of any such bonus, are within the sole
discretion of the Company’s Compensation Committee and the
Board of Directors. Nothing contained in this Section 6(b) is
intended to be, or should be construed as, a promise or guarantee
by the Company to grant the Executive an annual cash bonus. The
Company reserves the right, in its sole discretion, and the
Executive hereby acknowledges the Company’s right, to make no
such payments.
7.
COMMON STOCK. During the Executive’s
continued full and satisfactory performance of his duties and
responsibilities hereunder, and subject to the provisions in
Section 10 herein, the Company shall award the Executive on the
Effective Date and each of the first two anniversaries following
the Effective Date, 5,000 shares of common stock of the Company
("Common Stock"). The Executive’s right to receive any such
grant of Common Stock is subject to, and conditioned upon, his
status as a full-time employee of the Company at the time of such
grant, and the Executive shall not be entitled to receive any
portion of any annual grant of Common Stock that has not been
awarded to the Executive on or prior to the last date of the
Employee’s full-time employment with the Company.
8.
REIMBURSEMENT OF EXPENSES; VACTION;
INSURANCE.
2
a.
During the Term, in accordance with the
Company’s expense reimbursement policy, the Executive shall
be entitled to reimbursement for reasonable expenses (including,
without limitation, reasonable travel expenses) paid or incurred by
him, in connection with and related to the performance of his
duties and responsibilities hereunder for the Company. All requests
by Executive for reimbursement for such expenses must be supported
by appropriate invoices, vouchers, receipts or such other
supporting documentation in such form and containing such
information as the Company may from time to time require,
evidencing that the Executive, in fact, incurred or paid said
expenses.
b.
The Executive shall be entitled to an annual
paid vacation of four weeks per calendar year (as prorated for
partial years), such vacations to be taken at such time or times as
mutually agreed upon by the Company and the Executive. The
carry-over of vacation days shall be in accordance with the
Company’s policy applicable to senior executives from time to
time in effect.
c.
The Company shall provide insurance covering
accidental death or injury to the Executive while performing
services for the Company pursuant to this Agreement, payable to the
Executive or his designated beneficiaries, in an amount of US
$1,000,000.
d.
During his employment pursuant to this
Agreement, the Executive shall be entitled to participate in all
employee benefit plans and programs to the same extent generally
available to similarly situated employees of the Company, in
accordance with the terms of such plans and programs, including but
not limited to, pension, unemployment and health
benefits.
9.
NO OTHER COMPENSATION OR BENEFITS; PAYMENT. The
compensation and benefits specified in Sections 6, 7 and 8 herein
shall be in lieu of any and all other compensation and benefits.
Payment of all compensation and benefits to Executive specified in
Sections 6 and 8 herein (i) shall be made in accordance with the
relevant Company policies in effect from time to time to the extent
the same are consistently applied, including normal payroll
practices, and (ii) shall be subject to all legally required and
customary withholdings.
10.
TERMINATION.
a.
DEATH OR RESIGNATION. If the Executive dies or
resigns during the Term, this Agreement shall automatically
terminate on the date of the Executive’s death or resignation
and, following the date of the Executive’s death or
resignation, the Company shall have no further obligations or
liability to the Executive or his heirs, administrators or
executors with respect to compensation and benefits specified in
Sections 6, 7 and 8 herein thereafter, except for the obligation to
pay the Executive (i) any earned but unpaid base salary through the
Executive’s date of death or resignation, (ii) for any unused
accrued and unforfeited vacation, and (iii) subject to Section 8
herein, for any unreimbursed business expenses incurred by the
Executive prior to his death or resignation. The Company shall
deduct, from all payments made hereunder, all applicable taxes and
other appropriate deductions.
b.
DISABILITY. At any time during the Term, the
Company may terminate this Agreement and the Executive’s
employment with the Company because of the Executive’s
"Disability," by written notice to the Executive. For purposes of
this Agreement, "Disability" shall mean, if at the end of any
calendar month during the Term, the Executive, as a result of
mental or physical illness or injury, is or has been unable to
perform his duties under this Agreement, with or without reasonable
accommodation, for a period of 90 consecutive days. If this
Agreement is terminated because of the Executive’s
"Disability," the Company shall have no further obligations or
liability to the Executive or his heirs, administrators or
Executors with respect to compensation and benefits specified in
Sections 6, 7 and 8 herein thereafter, except for the obligation to
pay the Executive (i) any earned but unpaid base salary through the
date of termination for "Disability," at the rate then in effect,
(ii) for any unused accrued and unforfeited vacation, and (iii)
subject to Section 8 herein, for any unreimbursed business expenses
incurred by the Executive prior to his last date of employment with
the Company. The Company shall deduct, from all payments made
hereunder, all applicable taxes and other appropriate
deductions.
3
c.
TERMINATION FOR "CAUSE." At any time during the
Term, the Company may terminate this Agreement and the
Executive’s employment with the Company, at any time, for
"Cause." For purposes of this Agreement, "Cause" shall mean any of
the following: (i) the neglect or failure or refusal of Executive
to perform Executive’s duties hereunder (other than as a
result of total or partial incapacity due to physical or mental
illness), as determined by the Board of Directors or the
Compensation Committee in their sole discretion; (ii) the engaging
by Executive in gross negligence or misconduct which is injurious
to the Company or any of its affiliates, monetarily or otherwise;
(iii) perpetration of an intentional and knowing fraud against or
affecting the Company or any of its affiliates or any customer,
client, agent, or employee thereof; (iv) any willful or intentional
act that could reasonably be expected to injure the reputation,
business, or business relationships of the Company or any of its
affiliates or Executive’s reputation or business
relationships; (v) Executive’s material failure to comply
with, and/or a material violation by Executive of, the internal
policies of the Company or any of its affiliates and/or procedures
or any laws or regulations applicable to Executive’s conduct
as an employee of the Company; (vi) Executive’s conviction
(including conviction on a nolo contendere plea) of a felony or any
crime involving fraud, dishonesty or moral turpitude; (vii) the
breach of a covenant set forth in Sections 11, 12 or 13 herein; or
(viii) any other material breach by Executive of this Agreement;
provided, however, that, if susceptible of cure, a termination by
the Company under Sections 10(c)(i), 10(c)(v) or 10(c)(viii) herein
shall be effective only if, within 14 days following delivery of a
written notice by the Company to Executive that the Company is
terminating his employment for Cause, Executive has failed to cure
the circumstances giving rise to Cause. If this Agreement and the
Executive’s employment is terminated for "Cause," following
the Executive’s last date of employment with the Company, the
Company shall have no further obligations or liability to the
Executive or his heirs, administrators or Executors with respect to
compensation and benefits thereafter, except for the obligation to
pay the Executive (i) any earned but unpaid base salary through the
Executive’s last date of employment, at the rate then in
effect, (ii) for any unused accrued and unforfeited vacation, and
(iii) subject to Section 8 herein, for any unreimbursed business
expenses incurred by the Executive prior to the last date of
employment with the Company. The Company shall deduct, from all
payments made hereunder, all applicable taxes and other appropriate
deductions.
d.
TERMINATION WITHOUT CAUSE. The Company may
terminate Executive’s employment hereunder at any time for
any reason or no reason by giving Executive thirty (30) days prior
written notice of the termination, provided that in the event that
the Company terminates Executive’s employment without
"Cause," the Executive shall not be subject to the covenants listed
in Section 13 herein. Following any such notice, the Company may
reduce or remove any and all of Executive’s duties, positions
and titles with the Company. If this Agreement and the
Executive’s employment with the Company is terminated without
"Cause," following the Executive’s last date of employment
with the Company, the Company shall have no further obligations or
liability to the Executive or his heirs, administrators or
executors with respec
