EHIXIBT 10.1
DR. DAVID FU EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") is made
and entered into October 1st,
2009 (the "Effective Date"), by and between China Wi-Max
Communications, Inc., a
Nevada corporation (the "Company") and Dr. David Fu (the
"Executive").
W I T N E S S E T H:
WHEREAS, the Company wishes to employ the Executive and
secure the services of
the Executive subject to the contractual terms and conditions
set forth herein;
and
WHEREAS, the Executive is willing to enter into this
Agreement upon the terms
and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth
herein, the parties hereto agree as follows:
1. Employment. The Company hereby
agrees to employ the Executive, and the
Executive hereby agrees to accept such employment with the Company,
all upon the
terms and conditions set forth herein.
2. Term of Employment. Subject to the terms and
conditions of this Agreement,
the Executive shall be employed year to year commencing
on the Effective Date
and ending each and every one year
anniversary (the "Term") unless sooner
terminated as provided for herein. The Term shall
renew automatically for an
additional one (1) year period of time, unless either party gives
written notice
no less than sixty (60) days prior to the
expiration of the Term that the one
party does not intend to extend the Term.
3. Duties and Responsibilities.
A. Capacity. During the
Term, the Executive shall serve in the capacity
of
Chief Engineer, China ("CEC") of Yuan Shan Da Chaun
(Company "B")
and Yuan
Shan Shi Dai Technology Development Company
(Company "D"),
each a
wholly-owned foreign entity ("WOFE") of the Company, subject to
the
supervision of the Managing Director of
such WOFEs, or other
senior
executive officer of the Company as directed by the Board.
B. Full-Time
Duties. During the Term, and
excluding any periods of
disability,
vacation or sick leave to which the Executive is entitled,
the
Executive shall devote substantially all of his
business time,
attention and energies to the business of the Company
and its WOFEs.
During the
Term, it shall not be a violation of this Agreement for the
Executive to
(i) serve on corporate, civic or charitable
boards or
committees, including continuing to fulfill his
commitment to one or
more
"clubs" with which Executive is
currently involved in; (ii)
deliver lectures or fulfill speaking
engagements and (iii) manage
personal investments, so long as such activities
do not materially
interfere
with the performance of the Executive's responsibilities
as
an employee
of the Company in accordance with this Agreement.
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C. Standard of
Performance. The Executive will perform his duties under
this
Agreement with fidelity and loyalty, to the best of his
ability,
experience
and talent and in a manner consistent with his duties
and
responsibilities.
4. Compensation.
A. Base Pay. The
Company shall pay the Executive a salary (the
"Base
Salary") of
Five Thousand Dollars ($5,000) U.S.D. per month, prorated
for partial
months of employment. The Base Salary shall be payable in
accordance
with the general payroll practices of the Company in effect
from time to
time. During the remainder of the Term, the Base
Salary
shall
be reviewed at least every six
months, as the Company
determines, and then annually. Such reviews shall be
conducted by the
President
and CEO (or Managing Director or Board) after
consultation
with
the Executive and may from time to time be
increased (but not
decreased without prior notification to
the Executive) as solely
determined
by the Managing Director or President and CEO. Effective as
of the date
of any such increase, the Base Salary as
so increased
shall
be considered the new Base Salary for
all purposes of this
Agreement
B. Annual
Performance Bonus. The Executive shall be eligible for
annual
discretionary bonus awards payable in cash,
options and/or common
stock of the
Company, as so determined solely by the Board, based
on
performance objectives submitted annually by
senior management and
approved by
the Board.
C. Long-Term
Incentives. Upon the execution of
this Agreement, the
Company agrees to issue the Executive the initial grant
of stock and
option award
set forth on the term sheet attached hereto as Exhibit A,
and
incorporated herein by reference. Following
the initial grant
and/or
option award, the Executive shall be eligible for
grants of
stock
options, restricted stock and/or other long-term incentives,
in
the sole
discretion of the Board.
D. Benefits. If, and to
the extent that, the Company maintains employee
benefit
plans for other employees primarily based in China (including,
but not
limited to, pension, profit-sharing,
disability, accident,
medical, life insurance, and
hospitalization plans) (it being
understood that the Company may but shall not be
obligated to do so)
then (1)
the Executive shall be entitled to
participate therein in
accordance with the Company's regular
practices with respect to
similarly situated senior executives. (2)
The Executive shall be
entitled to
prompt, normally 15 days or less from receipt of approved
expenses incurred by him in the course of
the performance of his
duties
hereunder, upon the submission of appropriate documentation
in
accordance
with the practices, policies and procedures applicable
to
other
senior executives of the Company. (3) The
Executive shall be
entitled to
such vacation, holidays and other paid or unpaid leaves of
absence as
are consistent with the Company's normal policies available
to other
senior executives of the Company or as are otherwise approved
by the
Board.
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5. Termination of Employment.
Notwithstanding the provisions of Section 2
hereof, the Executive's employment hereunder
shall terminate under any of the
following conditions:
A. Death. The Executive's
employment under this Agreement shall terminate
automatically upon his death.
B. Total
Disability. The Company shall have the right to terminate
this
Agreement if
the Executive becomes Totally Disabled. For purposes
of
this
Agreement, "Totally Disabled" means that the
Executive is not
working and is currently unable to
perform the substantial and
material duties of his position hereunder
as a result of sickness,
accident or bodily injury that lasts for a
period of two calendar
weeks or
more. Prior to a determination that
Executive is Totally
Disabled (which shall be made in the sole discretion of the
Company),
but after
Executive has exhausted all sick leave and vacation benefits
provided by
the Company, if any, Executive shall continue to
receive
his Base
Salary, offset by any disability benefits he may be
eligible
to
receive, conditioned on the execution by
the Executive or the
Executive's
representative of a release of all
employment-related
claims;
provided, however, that such release shall be contingent
upon
the
Company's satisfaction of all terms
and conditions of this
Agreement.
C. Termination "At Will" By
Company. Notwithstanding any provision to the
contrary,
the Executive's employment hereunder is "at will" and may be
terminated by the Company with prior written
notice by the Managing
Director
and/or President and CEO (or Board) to the Executive.
6. Payments Upon Termination.
A. Upon termination of
Executive's employment hereunder for any reason as
so provided
for in Section 5 hereof, the Company shall be obligated to
pay and the
Executive shall be entitled to receive, within thirty (30)
days
of termination, Base Salary which has
accrued for services
performed to
the date of termination and which has not yet been paid.
In addition,
the Executive shall be entitled to any vested benefits to
which he
is entitled under the terms of any
applicable Executive
benefit plan
or program, vested restricted stock plan and stock option
plan of
the Company, and, to the extent applicable,
short-term or
long-term disability plan or program with respect to
any disability,
or any life
insurance policies and the benefits provided by such plan,
program or
policies, or applicable law as duly adopted from
time to
time by the
Board.
B. Upon voluntary
termination of employment by the Executive for
any
reason
whatsoever, the Company shall have no further liability
under
or in
connection with this Agreement, except to provide
the amounts
set forth in
Section 6.A.
C. Upon
termination of employment, the Executive shall
continue to be
subject to
the provisions of Section 7, hereof. it being
understood
and
agreed that such provisions shall survive
any termination or
expiration of the Executive's employment
hereunder for any reason
whatsoever.
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7. Confidentiality; Return of Property; Covenant Not To
Compete; Confidential
Information.
A. Company
Information. The Company agrees that it
will provide the
Executive
with Confidential Information, as defined below, which
will
enable the
Executive to optimize the performance of the
Executive's
duties to
the Company. In exchange, the Executive agrees to use
such
Confidential
Information solely for the Company's benefit. The Company
and
the Executive agree and acknowledge that
its provision of such
Confidential Information is not
contingent on the Executive's
continued employment with the Company.
"Confidential Information"
means
any Company proprietary information,
technical data, trade
secrets or
know-how, including, but not limited to, research,
product
plans,
products services, customer lists and customers (including, but
not limited
to, customers of the Company on whom the Executive called
or with whom
the Executive became acquainted during the term
of the
Executive's
employment), markets, software, developments, inventions,
processes, formulas, technology,
designs, drawings, engineering,
hardware configuration information,
marketing finances or other
business
information disclosed to the Executive by the Company
either
directly or indirectly in
writing, orally or by drawings
or
observation
of parts or equipment. Confidential Information does
not
include any
of the foregoing items which has become publicly known and
made
generally available through no wrongful act of the
Executive or
of others
who were under confidentiality obligations as to the item or
items
involved or improvements or new versions. The Executive
agrees
at all
times during the Term and thereafter, to
hold in strictest
confidence, and not to use, except for the
exclusive benefit of the
Company, or to disclose to any person
or entity without written
authorization of the Board of
Directors of the Company, any
Confidential
Information of the Company.
B. Former Employer
Information. The Executive agrees that he will not,
during his
employment with the Company, improperly use or disclose any
proprietary information or trade secrets of any
former employer or
other person
or entity and that the Executive will not bring onto the
premises of the Company any
unpublished document or proprietary
information belonging to any such employer,
person or entity unless
consented to
in writing by such employer, person or entity.
C. &n
