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EMPLOYMENT AGREEMENT

Employment Agreement

EMPLOYMENT AGREEMENT | Document Parties: APPLIED SPECTRUM TECHNOLOGIES INC | Daping Gu | KI Equity Partners III, LLC You are currently viewing:
This Employment Agreement involves

APPLIED SPECTRUM TECHNOLOGIES INC | Daping Gu | KI Equity Partners III, LLC

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Title: EMPLOYMENT AGREEMENT
Governing Law: New York     Date: 11/17/2006
Law Firm: Anslow & Jaclin,    

EMPLOYMENT AGREEMENT, Parties: applied spectrum technologies inc , daping gu , ki equity partners iii  llc
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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 Daping Gu (the "Executive") (each, a "Party" and together, the "Parties").

 

WHEREAS, the Executive is currently employed as a Vice President of Marketing 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 Marketing 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$100,000, 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).


 

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(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.

 

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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.

 

8.   NO ASSIGN


 
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