Exhibit
10.1
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (the “
Agreement ”), dated as of December 15, 2008 is
entered into by and between Sino Clean Energy, Inc., a Nevada
corporation (the “ Company ”), and Hon
Wan Chan, also known as Helice Chan (the “
Executive ”, and collectively with the Company,
the “ Parties ”), and shall become
effective as of the date hereof (the “ Effective
Date ”).
WITNESSETH:
WHEREAS , the Company is engaged in the business of
producing and distributing coal water mixture in the People’s
Republic of China (the “ Business
”);
WHEREAS , Executive has represented to Company that he
has the experience, background and expertise necessary to enable
him to be the Chief Financial Officer and Principal Accounting
Officer of the Company; and
WHEREAS , based on Executive’s representation and
the Company’s reasonable due diligence, the Company wishes to
employ Executive as its Chief Financial Officer and Principal
Accounting Officer, and Executive wishes to enter into such
employment with the Company and to enter into this Agreement;
and
NOW ,
THEREFORE , in consideration of the premises and the mutual
covenants herein, and for other good and valuable consideration,
the Parties hereby agree as follows:
1.
Definition . As used herein, the following terms
shall have the following meanings:
1.1 “
Affiliate ” of a Person (the “
Subject Person ”) means any other Person
directly or indirectly controlling, controlled by or under common
control with the Subject Person, where “
control ” means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a person, whether through the ownership
of voting securities, by contract or otherwise, and includes (a)
ownership directly or indirectly of 50% or more of the shares in
issue or other equity interests of such Person; (b) possession
directly or indirectly of 50% or more of the voting power of such
Person or (c) the power directly or indirectly to appoint a
majority of the member of the board of directors or similar
governing body of such Person, and the terms “
controlling ” and “
controlled ” have meaning correlative to the
foregoing.
1.2 “
Board ” means the Board of Directors of the
Company.
1.3 “
Person ”, for the purpose of this Agreement,
means an individual, corporation, joint venture, enterprise,
partnership, trust, unincorporated association, limited liability
company, government or any department or agency hereof, or any
other entity.
1.4 “
Prospective Customer ” means any Person whom
has either (a) entered into a nondisclosure agreement with the
Company or its subsidiary or Affiliate; or (b) has received a
reasonably detailed written proposal from the Company or its
subsidiary or Affiliate, and such Person has not yet rejected such
proposal.
2.1
Agreement to Employ . As of the Effective
Date, the Company hereby agrees to employ Executive, and Executive
hereby accepts such employment, subject to the provisions of this
Agreement, as an officer and employee of the Company.
2.2
Duties . Executive shall serve as the
Chief Financial Officer and Principal Accounting Officer of the
Company. In such position, Executive shall have such
responsibilities as stated in Attachment I of this
Agreement. Executive shall report directly to the Board. The Board
shall have the right to adjust the duties and authority of
Executive, provided that such adjustment shall not be inconsistent
with applicable laws, regulations and rules.
2.3
Term of Employment . Subject to the
provisions of Section 5 of this Agreement, this Agreement shall be
effective for a period commencing on the Effective Date and
terminate pursuant to Section 4 hereof ending on the day
immediately preceding the first anniversary of the Effective Date
(the “ Term ”).
3.1
Salary . The Company shall pay Executive a
monthly salary of at the annual rate of One Hundred Eighty Thousand
Renminbi (RMB 180,000) (the “ Salary ”), payable
in monthly installments of Ten Thousand Renminbi (RMB 10,000) for
the initial six months of the Term, and in monthly installments of
Twenty Thousand Renminbi (RMB 20,000) thereafter.
3.2
Stock Option . Upon execution of this
Agreement, Executive shall be granted an option (the “
Option ”) to purchase up to One Hundred
Thousand (100,000) shares of the Company’s common stock,
$0.001 par value, at an exercise price equal to the last reported
sale price per share in the over-the-counter market on the grant
date of the Option, as reported by the Financial Industry
Regulatory Authority’s OTC Bulletin Board, the National
Quotation Bureau Incorporated or any similar organization or agency
reporting prices in the over-the-counter market, for a period of
two (2) years. The Option shall be granted pursuant to,
and the terms and conditions of the Option shall be set forth in,
an option agreement entered into by and between the Company and
Executive as of the Effective Date, substantially in the form which
is attached to this Agreement as Exhibit A .
3.3
Business Expenses . During the Term, the
Company, in accordance with Company policies as are in effect from
time to time, shall reimburse all reasonable business expenses
incurred by Executive in the performance of his duties hereunder
provided Executive furnishes the Company with vouchers, receipts
and other details of such expenses in the form required by the
Company sufficient to substantiate a deduction for such reasonable
business expenses under all applicable rules and regulations of
Federal and State taxing authorities.
4.
Termination . Notwithstanding any other
provision of this Agreement:
4.1
For Cause by the Company . The Company
hereunder, may terminate the Term, and the Executive’s
employment at any time for Cause (as defined below) upon delivery
of a Notice of Termination (as defined in Section 4.4) by the
Company to Executive, in which the cause or reason of such
termination is stated. For purposes of this Agreement,
“ Cause ” means, in each case, as
reasonably determined by the Board: (i) conviction of, or entry of
a pleading of guilty or no contest by, Executive with respect to a
felony or any lesser crime of which fraud or dishonesty is a
material element; (ii) Executive's willful dishonesty towards the
Company; (iii) Executive's willful and continued failure to perform
substantially all of his duties with the Company, or a failure to
follow the lawful direction of the Board after the Board delivers a
written demand for substantial performance and Executive neglects
to cure such a failure to the reasonable satisfaction of the Board
within five (5) business days following receipt of such written
demand; (iv) Executive's knowing and intentional failure to comply
with applicable laws with respect to the execution of the Company's
business operations or his material breach of this Agreement; (v)
Executive's theft, fraud, embezzlement, dishonesty or similar
conduct which has resulted or is likely to result in material
damage to the Company or any subsidiaries and Affiliate; or (vi)
Executive's habitual intoxication or continued abuse of illegal
drugs which materially interferes with Executive's ability to
perform his assigned duties and responsibilities. If
Executive is terminated for Cause pursuant to this Section 4.1, he
shall be entitled to receive only his Salary through the date of
termination and he shall have no further rights to any compensation
(including any Salary) or any other benefits under this
Agreement.
4.2
Disability or Death . The Term and
Executive’s employment hereunder, shall terminate immediately
upon his death or following delivery of a Notice of Termination by
the Company to Executive if Executive becomes physically or
mentally incapacitated, whether total or partial, and is therefore
unable to perform substantially all of his duties and
responsibilities hereunder for a period of ninety (90) consecutive
days (such incapacity is hereinafter referred to as
“Disability”). Upon termination of
Executive’s employment hereunder for either Disability or
death, Executive or Executive’s estate (as the case may be)
shall be entitled to receive his Salary through the date of
termination, any earned but unpaid vacation, and all other
compensation and benefits that were vested through the date of
Disability or death. All other benefits, if any, due
Executive following the Executive’s termination for
Disability or death shall be determined in accordance with the
plans, policies and practices of the Company, provided, however,
that Executive (or his estate, as the case may be) shall not be
entitled to participate in any severance plan, policy or program of
the Company.
4.3
Termination by Company Without Cause
. Executive’s employment may be terminated without
Cause by the Company by delivery of written notice to Executive at
least thirty (30) days prior to the termination date (“
Early Termination by Company ”). It
is expressly agreed and understood that if Executive’s
employment is terminated by the Company without Cause as provided
in this Section 4.3, it shall not impair, limit or otherwise
affect Executive’s Continuing Obligations (as defined
below). Upon the effective date of the Early Termination
by Company, Executive shall be entitled to all compensation and
benefits that were vested through such Early Termination by Company
date.
4.4
Termination by Executive
. Executive’s employment may be terminated by
Executive without further liability on the part of Executive (other
than with respect to those provisions of this Agreement expressly
surviving such termination) by written notice to the Company at
least thirty (30) days prior to such termination date (“
Termination by Executive ”). It is
expressly agreed and understood that if Executive’s
employment is terminated by the Executive as provided in this
Section 4.4, it shall not impair, limit or otherwise affect
Executive’s Continuing Obligations (as defined
below). Upon the effective date of the Termination by
Executive, Executive shall be entitled to all compensation and
benefits that were vested through such Termination by Executive
date.
4.5
Notice of Termination . The “
Date of Termination ” shall mean the applicable
date on which the Executive’s employment is terminated under
this Agreement. Any purported termination of employment
by the Company or Executive (other than on account of the death of
Executive) shall be communicated by a written Notice of Termination
to Executive or the Company, respectively, delivered in accordance
with Section 8.4 hereof. For purposes of this Agreement,
a " Notice of Termination " shall mean a notice which
shall indicate the specific termination provision in this Agreement
relied upon, the date of termination, and shall set forth in
reasonable detail the facts and circumstances claimed to provide a
basis for termination of employment under the provision so
indicated. The date of termination of Executive's
employment shall be the date so stated in the Notice of Termination
and shall be no less than thirty (30) days following the delivery
of a Notice of Termination; except that: (a) in the case of a
termination by the Company for Cause in accordance with the terms
of Section 4.1 hereof, in which case the date of termination of
Executive’s employment may be, at the sole discretion of the
Company, the same date as the delivery of the Notice of
Termination; and (b) in the case of a Termination by Executive in
accordance with the terms of Section 4.4 hereof, the Company shall
have the option, in its complete discretion and upon payment of all
compensation and benefits then due and owing through the last day
of the notice period, to make Executive’s termination
effective at any time prior to the end of such thirty (30) day
notice period and, thereafter, all of Company’s obligations
under this Agreement shall cease..
4.6
Payment . The Executive shall not be
entitled to severance payments or participate in any severance
plan, policy or program of the Company upon any termination
provided in Section 4 herein. Except as otherwise
provided in this Agreement, any payments to which the Executive
shall be entitled under this Section 4, including, without
limitation, any economic equivalent of any benefit, shall be made
as promptly as possible following the Date of Termination, but in
no event more than thirty (30) days after the Date of
Termination. If the amount of any payment due to the
Executive cannot be determined within thirty (30) days after the
Date of Termination, such amount shall be reasonably estimated on a
good faith basis by the Company
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