EMPLOYMENT
AGREEMENT
This employment
agreement (this "Agreement"), dated as of November 15, 2006 (the
"Effective Date"), is made by and between Applied Spectrum
Technologies, Inc., a Delaware corporation (the "Company"), and Wei
Xu (the "Executive") (each, a "Party" and together, the
"Parties").
WHEREAS, the
Executive is currently employed as a Vice President of Operations
of the Company; and
WHEREAS,
pursuant to an Exchange Agreement (the "Exchange Agreement"), dated
as of September 7, 2006, by and among the Company, Ever Leader KI
Equity Partners III, LLC and each of the stockholders of Ever
Leader, Ever Leader will become a wholly-owned subsidiary of the
Company (the "Acquisition") as of the Effective Date.
Simultaneously with the consummation of the Acquisition on the
Effective Date, the Company shall change its name from Applied
Spectrum Technologies, Inc. to Benda Pharmaceuticals, Inc. All
references herein to the Company after consummation of the
Acquisition shall be deemed to be references to Benda
Pharmaceutical, Inc.; and
WHEREAS, the
Parties wish to establish the terms of the Executive's continued
employment by the Company;
NOW, THEREFORE,
in consideration of the foregoing, of the mutual promises contained
herein and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties,
intending to be legally bound, hereby agree as follows:
1.
POSITION/DUTIES.
(a) During the Employment Term (as defined in
Section 2 below), the Executive shall serve as a Vice President of
Operations of the Company. In this capacity the Executive shall
have such duties, authorities and responsibilities commensurate
with the duties, authorities and responsibilities of persons in
similar capacities in similarly sized companies and such other
reasonable duties and responsibilities as the Board of Directors of
the Company (the "Board") shall designate. The Executive shall
report directly to the Chief Executive Officer. The Executive shall
obey the lawful directions of the Board, the Company's Chief
Executive Officer and any other senior executive of the Company to
whom the Executive reports and shall use his diligent efforts to
promote the interests of the Company and to maintain and promote
the reputation thereof.
(b) During the Employment Term, the Executive shall
use his best efforts to perform his duties under this Agreement and
shall devote all of his business time, energy and skill in the
performance of his duties with the Company. The Executive shall not
during the Employment Term (except as a representative of the
Company or with consent in writing of the Board) be directly or
indirectly engaged or concerned in any other business activity.
Notwithstanding the foregoing provisions, the Executive is not
prohibited from (1) participating in charitable, civic,
educational, professional or community affairs or serving on the
board of directors or advisory committees of non-profit entities,
and (2) managing his and his family's personal investments, in each
case, provided that such activities in the
aggregate do not materially interfere with his duties
hereunder.
2.
EMPLOYMENT
TERM. Except for
earlier termination as provided in Section 6, the Executive's
employment under this Agreement shall be for a three-year term
commencing on the Effective Date and ending on November 15, 2009
(the "Initial Term"). Subject to Section 6, the Initial Term shall
be automatically extended for additional terms of successive
one-year periods (the "Additional Term") unless the Company or the
Executive gives written notice to the other of the termination of
the Executive's employment hereunder at least 90 days prior to the
expiration of the Initial Term or Additional Term. The Initial Term
and any Additional Term shall be referred to herein as the
"Employment Term."
3.
BASE SALARY.
The Company agrees to pay to the
Executive a base salary at an annual rate of not less than
US$120,000, payable in accordance with the regular payroll
practices of the Company. The Executive's Base Salary shall be
subject to annual review by the Board (or a committee thereof). The
base salary as determined herein from time to time shall constitute
"Base Salary" for purposes of this Agreement.
4.
BONUS.
With respect to each full fiscal
year during the Employment Term, the Executive shall be eligible to
earn an annual bonus (the "Annual Bonus") in such amount, if any,
as determined in the sole discretion of the Board of up to 100% of
the Executive's Base Salary. In addition, the Executive shall be
eligible to participate in the Company's bonus and other incentive
compensation plans and programs (if any) for the Company's senior
executives at a level commensurate with his position and may be
entitled to bonus payments in addition to the amount set forth
hereinabove. 1
5.
EMPLOYEE
BENEFITS.
(a)
Benefit
Plans. The
Executive shall be eligible to participate in any employee benefit
plan of the Company, including, but not limited to, equity,
pension, thrift, profit sharing, medical coverage, education, or
other retirement or welfare benefits that the Company has adopted
or may adopt, maintain or contribute to for the benefit of its
senior executives, at a level commensurate with his positions,
subject to satisfying the applicable eligibility requirements. The
Company may at any time or from time to time amend, modify, suspend
or terminate any employee benefit plan, program or arrangement for
any reason in its sole discretion.
1 NOTE:
publicly held companies are subject to the $1,000,000 compensation
deduction limitation imposed by Internal Revenue Code Section
162(m).
(b)
Vacation.
The Executive shall be entitled to
an annual paid vacation in accordance with the Company's policy
applicable to senior executives from time to time in effect, but in
no event less than two weeks per calendar year (as prorated for
partial years), which vacation may be taken at such times as the
Executive elects with due regard to the needs of the Company. 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)
Business and Entertainment
Expenses. Upon
presentation of appropriate documentation, the Executive shall be
reimbursed for all reasonable and necessary business and
entertainment expenses incurred in connection with the performance
of his duties hereunder, all in accordance with the Company's
expense reimbursement policy applicable to senior executives from
time to time in effect.
6.
TERMINATION.
The Executive's employment and the
Employment Term shall terminate on the first of the following to
occur:
(a)
Disability.
The thirtieth (30 th )
day following written notice by the Company to the Executive of
termination due to Disability. For purposes of this Agreement,
"Disability" shall mean a determination by the Company in
accordance with applicable law that due to a physical or mental
injury, infirmity or incapacity, the Executive is unable to perform
the essential functions of his job with or without accommodation
for 180 days (whether or not consecutive) during any 12-month
period.
(b)
Death.
Automatically on the date of death
of the Executive.
(c)
Cause.
Immediately upon written notice by
the Company to the Executive of a termination for Cause. "Cause"
shall mean, as determined by the Board (or its designee) (1)
conduct by the Executive in connection with his employment duties
or responsibilities that is fraudulent, unlawful or grossly
negligent; (2) the willful misconduct of the Executive; (3) the
willful and continued failure of the Executive to perform the
Executive's duties with the Company (other than any such failure
resulting from incapacity due to physical or mental illness); (4)
the commission by the Executive of any felony (or the equivalent
under the law of the People's Republic of China) (other than
traffic-related offenses) or any crime involving moral turpitude;
(5) violation of any material policy of the Company or any material
provision of the Company's code of conduct, employee handbook or
similar documents; or (6) any material breach by the Executive of
any provision of this Agreement or any other written agreement
entered into by the Executive with the Company.
(d)
Without
Cause. On the
thirtieth (30th) day following written notice by the Company to the
Executive of an involuntary termination without Cause, other than
for death or Disability.
(e)
Good Reason.
On the sixtieth (60 th )
day following written notice by the Executive to the Company of a
termination for Good Reason. "Good Reason" shall mean, without the
express written consent of the Executive, the occurrence of any the
following events unless such events are cured (if curable) by the
Company within fifteen days following receipt of written
notification by the Executive to the Company that he intends to
terminate his employment hereunder for one of the reasons set forth
below: any material reduction or diminution (except temporarily
during any period of incapacity due to physical or mental illness)
in the Executive's title, authorities, duties or responsibilities
or reporting requirements with the Company.
7.
CONSEQUENCES OF
TERMINATION.
(a)
Disability.
Upon termination of the Employment
Term because of the Executive's Disability, the Company shall pay
or provide to the Executive (1) any unpaid Base Salary and any
accrued vacation through the date of termination; (2) any unpaid
Annual Bonus accrued with respect to the fiscal year ending on or
preceding the date of termination; (3) reimbursement for any
unreimbursed expenses properly incurred through the date of
termination; and (4) all other payments or benefits to which the
Executive may be entitled under the terms of any applicable
employee benefit plan, program or arrangement (collectively,
"Accrued Benefits").
(b)
Death.
Upon the termination of the
Employment Term because of the Executive's death, the Executive's
estate shall be entitled to any Accrued Benefits.
(c)
Termination for
Cause. Upon the
termination of the Employment Term by the Company for Cause or by
either party in connection with a failure to renew this Agreement,
the Company shall pay to the Executive any Accrued
Benefits.
(d)
Termination without Cause or
for Good Reason. Upon the termination of the Employment Term by
the Company without Cause or by the Executive with Good Reason, the
Company shall pay or provide to the Executive (1) the Accrued
Benefits, and (2) subject to the Executive's execution (and
non-revocation) of a general release of claims against the Company
and its affiliates in a form reasonably requested by the Company,
(A) continued payment of his Base Salary for two (2) months after
termination, payable in accordance with the regular payroll
practices of the Company, but off the payroll; and (B) payment of
the Executive's cost of continued medical coverage for two (2)
months after termination (subject to the Executive's co-payment of
the costs in the same proportion as such costs were shared
immediately prior to the date of termination). 2
Payments provided under this
Section 7(d) shall be in lieu of any termination or severance
payments or benefits for which the Executive may be eligible under
any of the plans, policies or programs of the Company.