Attached files
| file | filename |
|---|---|
| 8-K - China Integrated Energy, Inc. | v206239_8k.htm |
| EX-10.4 - China Integrated Energy, Inc. | v206239_ex10-4.htm |
| EX-10.1 - China Integrated Energy, Inc. | v206239_ex10-1.htm |
| EX-10.3 - China Integrated Energy, Inc. | v206239_ex10-3.htm |
| EX-10.2 - China Integrated Energy, Inc. | v206239_ex10-2.htm |
CONFIDENTIALITY AND
NON-COMPETITION AGREEMENT
Party
A: Xi’an Baorun Industrial Development Co., Ltd.
Address:
Room 10720, Dongxin Century Plaza, No.7, Huoju Road, Xi’an
Legal
Representative: Gao Xincheng
Party
B: Li Gaihong
ID/Passport
Number: 610528197706072022
Address:
In
consideration of Party B's employment or continued employment with Party A, and
the compensation now and hereafter paid to Party B by Party A, the Parties
hereby agree to enter into this Agreement. For the purposes of this Agreement,
"Group" means Party A
and any entity which is established by Party A for the time being and from time
to time, the holding company, parent or subsidiary or affiliate of Party A, or
any subsidiary or office of the holding company of Party A.
|
1.
|
Employment. Party B
acknowledge that the terms and conditions of his/her employment with Party
A is provided for in a separate employment agreement between the Parties
and no provision of this Agreement shall be construed as confirmation of
Party B's employment with Party A.
|
|
2.
|
Business:
Refined oil wholesale business
|
|
3.
|
Confidential
Information
|
Confidential
Information in this Agreement includes:
|
3.1
|
Company
Information. Company Information
means any proprietary information, technical data, trade secrets or
know-how, including, but not limited to, research, patterns, plans,
compilations, inventions and developments, products, formulas, designs,
prototypes, methods, techniques, processes, procedures, computer programs
and software (whether as source code or object code), database,
development plans, records for research and development, technical report,
inspection report, experimental data, operation manual, technical
documentation, technologies, hardware configuration information, yield
data, equipment modifications, services, customer lists and customers
(including, but not limited to, customers of Party A and/or any other
member of the Group on whom Party B called or with whom Party B became
acquainted during the term of Party B's employment with Party A), supplier
lists, partners, markets, pricing, marketing, finances, salary, legal
business or other business information of the Group disclosed to Party B
or obtained by Party B from Party A and/or any other member of the Group
either directly or indirectly in writing, orally or by drawings or
observation of parts or equipment. Confidential Information may be a
complete set of plan, documentation or product, and may also be part of
the information or elements of the complete set of plan, documentation or
product. The Parties further understand that Confidential
Information does not include any of the foregoing items which has become
publicly known and made generally available through no wrongful act of
Party B or of others who were under confidentiality obligations as to the
item or items involved.
|
Confidential
1
|
3.2
|
Third
Party Information. Party B recognize that Party A and/or
other members of the Group have received and in the future will receive
from third parties, including subsidiaries and affiliated companies of
Party A, their confidential or proprietary information subject to a duty
on Party A’s part and/or the part of other members of the Group to
maintain the confidentiality of such information and to use it only for
certain limited purposes. Party B agrees to hold all such
confidential or proprietary information in the strictest confidence and
not to disclose it to any person, firm or corporation or to use it except
as necessary in carrying out his/her work for Party A consistent with the
agreement(s) Party A and/or a member of the Group has entered into with
such third party.
|
|
4.
|
Media
of Confidential Information
|
|
4.1
|
All
documents, information, photographs, diagrams, notes, reports, letters,
faxes, magnetic tapes, disks, prototypes, apparatus and any other forms of
media, which are containing Confidential Information of Party A and held
or kept by Party B in need of his/her work, shall be owned by Party A, no
matter whether the Confidential Information is of business
value.
|
|
4.2
|
Party
B shall return Party A all the properties and media contained Confidential
Information owned by Party A upon Party A's so request or Party B's
dismissal (whatever the reason is), and shall not reproduce, hold or give
the media herein above to any other person without authorization of Party
A.
|
|
4.3
|
If
the aforesaid media contained Confidential Information of Party A belong
to Party B, Party A shall make corresponding economic compensation
equivalent of the value of the media itself to Party B when Party B
returns such media to Party A.
|
|
5.
|
Maintenance
of Confidentiality
|
|
5.1
|
Party
B agrees at all times during the term of his/her employment and
thereafter, to hold in strictest confidence, and not to use, except for
the benefit of Party A or the benefit of the Group, or to disclose,
publicize, release, impart, transfer, to any person, firm or corporation
(including other employees who are not entitled to know Confidential
Information in accordance with Party A's internal administrations) without
written authorization of Party A, any Confidential Information.
Party B agrees that he/she shall secure and keep such Confidential
Information confidential and shall protect and safeguard the Confidential
Information against any unauthorized use, disclosure, report, transfer or
publication with at least the same degree of care as it uses for its own
confidential or proprietary information, but in no event use less than
reasonable care;
|
Confidential
2
|
5.2
|
Except
for the benefit of Party A or the benefit of the Group, Party B shall not
take any Confidential Information and media contained Confidential
Information out of Party A's office without written authorization of Party
A.
|
|
5.3
|
It
will be regarded that Party A has agreed that Party B may disclose or use
Confidential Information once Party B's supervisor of Party A has agreed
in writing Party B to do so, provided that Party A has clearly stated in
advance that such superior manager had been granted such
power.
|
|
5.4
|
Except
for the benefit of Party A or the benefit of the Group, Party B shall
not inquiry, disclose or discuss the salary, bonus, welfare, option
or any other payments to or with any other persons except for the direct
relatives of Party B.
|
|
6.
|
Intellectual
Property Rights
|
|
6.1
|
Works
Retained and Licensed. Party B have attached hereto, as Exhibit A, a
list describing all inventions, original works of authorship,
developments, improvements, and trade secrets which were made by him/her
prior to his/her employment with Party A (collectively referred to as
"Prior Works"), which belong to Party B and relate to Party A’s current
and proposed business, products or research and development, and which are
not assigned to Party A; or, if no such list is attached, Party B
represent that there are no 就such Prior
Works. If in the course of Party B employment with Party A, Party B
incorporate into a product, process or machine of Party A and/or any other
member of the Group the Prior Works owned by Party B or in which Party B
have an interest, Party A is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide license to make, have
made, modify, use and sell such Prior Works as part of or in connection
with such product, process or
machine.
|
|
6.2
|
Disclosure.
Party B agrees that Party B will promptly make full written disclosure to
Party A or its designee, will hold in trust for the sole right and benefit
of Party A, all his/her right, title, and interest in and to any and all
inventions, original works of authorship, developments, concepts,
improvements, designs, discoveries, ideas, trademarks or trade secrets,
processes, copyright works, know-how, any other work’s information or
matter which gives rise or may give rise to any intellectual property of
whatsoever nature, whether or not patentable or registrable under any law
of any country, which Party B may solely or jointly conceive or develop or
reduce to practice, or cause to be conceived or developed or reduced to
practice, during the period that Party B is in the employ of Party A
(collectively referred to as
"Works").
|
Confidential
3
|
6.3
|
Intellectual
Property Rights. The Parties acknowledge that Party A or its
designee, has the absolute title, right or interest in and to any and all
Works made by Party B (solely or jointly with others) during the period of
Party B's employment with Party A or within one year after Party B's
dismissal, and which are the duties of Party B or the tasks assigned
to him by Party A or its designee, or which are created mainly with the
materials and technical resources of Party A or its designee and under
Party A or its designee's responsibility. Those Works are the
"service invention-creation (zhi wu fa ming)" and
"works made for hire (zhi wu zuo pin)" as
defined under the patent and copyright laws of the People’s Republic of
China. Party B understands and agrees that the decision whether or
not to commercialize or market Works is within Party A’s sole discretion
and for the sole benefit of Party A and/or any other member of the
Group. Party B shall put forward written applications if he/she
claims for authorship of the works made by him during the period of Party
B's employment with Party A, and Party B is entitled to such works upon
written confirmation of Party A that such works are not Works made for
hire (zhi wu zuo
pin). The works made by Party B for which Party B does not
claim will be regarded as the Works made for hire. In respect of
such works of Party B which are not the Works but related to the business
of Party A or the Group, Party A or any member of the Group shall have a
preemptive right to acquire for itself or its nominee all or any part (at
Party A's option) of Party B's rights therein within three (3) months of
Party B's disclosure to Party A of such
works.
|
|
6.4
|
Maintenance
of Records. Party B agrees to keep and maintain adequate and
current written records of all Works made by Party B (solely or jointly
with others) during the term of his/her employment with Party A. The
records will be in the form of notes, sketches, drawings, and any other
format. The records will be available to and remain the sole
property of Party A at all times.
|
|
6.5
|
Patent
and Copyright Registrations. Party B agrees to assist Party
A, or its designee, at Party A's expense, in every proper way to secure
Party A's (or its designee's) rights in the Works and any copyrights,
patents, mask work rights or other intellectual property rights relating
thereto in any and all countries, including the disclosure to Party A of
all pertinent information and data with respect thereto, the execution of
all applications, specifications, oaths, assignments and all other
instruments which Party A shall deem necessary in order to apply for and
obtain such rights and in order to assign and convey to Party A, its
successors, assigns, and nominees the sole and exclusive rights, title and
interest in and to such Works, and any copyrights, patents, mask work
rights or other intellectual property rights relating thereto. Party
B further agrees that his/her obligation to execute or cause to be
executed, when it is in his/her power to do so, any such instrument or
papers shall continue after the termination of this
Agreement.
|
|
7.
|
Conflicting
Employment. Party B agrees that, during the term of his/her
employment with Party A, Party B will provide full-time services to Party
A and will not accept, provide or engage in, directly or indirectly any
other employment, occupation, consulting or other business activity
related to the business in which Party A and/or the Group is now involved
or becomes involved during the term of his/her employment, nor will Party
B engage in any other activities that conflict with his/her obligations to
Party A. Without unanimous written consent from the Board of Directors of
Party A, Party B shall not acquire any shares or interests of other
companies which have business activity related to the business in which
Party A and/or the Group is now involved or becomes involved during the
term of his/her employment other than that have been disclosed to Party A
upon the execution of this
Agreement.
|
Confidential
4
|
8.
|
Non-competition.
|
|
8.1
|
Party
B agrees that during the course of his/her employment and for a period of
24 months(Party A shall be entitled to waive or reduce the period at its
own discretion) immediately following the termination of his/her
relationship with Party A for any reason, whether with or without good
cause or for any or no cause, voluntarily or involuntarily, with or
without notice, Party B will not, without the prior unanimous written
consent of the Board of Director of Party A, (i) serve as a partner,
employee, consultant, officer, director, manager, agent, associate,
investor, or otherwise for, (ii) directly or indirectly, own, purchase,
organize or take preparatory steps for the organization of, (iii) build,
design, finance, acquire, lease, operate, manage, invest in, work or
consult for or otherwise affiliate Party B with, any business, in
competition with or otherwise similar to Party A's business, as stated
under Section 2 of this Agreement. The foregoing covenant shall
cover Party B's activities in every part of the Territory in which Party B
may conduct business during the term of such covenant as set forth
above. "Territory"
shall mean (a) the People's Republic of China, (b) Taiwan, (c)
Hong Kong, (d) Macao, (e) the United States of America, and
(f) all other countries and/or regions of the
world.
|
|
8.2
|
Party
B acknowledge that Party B will derive significant value from Party A's
agreement to provide Party B with that Confidential Information of Party A
and/or any member of the Group to enable Party B to optimize the
performance of Party B's duties to Party A. Party B further
acknowledge that Party B's fulfillment of the obligations contained in
this Agreement, including, but not limited to, Party B's obligation
neither to disclose nor to use the Confidential Information of Party A or
any member of the Group other than for Party A's exclusive benefit and
Party B's obligation not to compete contained in subsection (a) above, is
necessary to protect the Confidential Information of Party A or any member
of the Group and, consequently, to preserve the value and goodwill of
Party A. Party B further acknowledge the time, geographic and scope
limitations of Party B's obligations under Section 8.1 above are
reasonable, especially in light of Party A's and the Group's desire to
protect their Confidential Information, and that Party B will not be
precluded from gainful employment if Party B is obligated not to compete
with Party A during the period and within the Territory as described
above.
|
|
8.3
|
The
covenants contained in Section 8.1 above shall be construed as a series of
separate covenants, one for each city, county and state of any geographic
area in the Territory. Except for geographic coverage, each such
separate covenant shall be deemed identical in terms to the covenant
contained in Section 8.1 above. If, in any arbitration proceeding,
the arbitration panel refuses to enforce any of such separate covenants
(or any part thereof), then such unenforceable covenant (or such part)
shall be eliminated from this Agreement to the extent necessary to permit
the remaining separate covenants (or portions thereof) to be
enforced. In the event the provisions of Section 8.1 above are
deemed to exceed the time, geographic or scope limitations permitted by
applicable law, then such provisions shall be reformed to the maximum
time, geographic or scope limitations, as the case may be, then permitted
by such law.
|
Confidential
5
|
8.4
|
Party
B further agrees that Party B will be compensated by Party A upon the
termination of Party B's employment with Party A and for the performance
of the covenants that Party B make in this Section 8 of this
Agreement (hereinafter “Compensation”). The total amount of
Compensation shall be the twelve times of monthly-salary based on the
month when leaving the employ or the lowest amount as required by law,
whichever is higher(In the case of Party A waive the requirement of
non-competition or reduce the period, the compensation shall be canceled
or reduced in proportion respectively). The Compensation will be paid by
two installments, of which the first installment equal to 1/2 of the total
amount of the Compensation will be paid within one month after the
employment is terminated and the other installments equal to 1/2 of the
total amount of the Compensation will be paid per three months
thereafter.
|
|
9.
|
Returning
Party A's Documents. Party B agrees that, at the time of
leaving the employ of Party A, Party B will deliver to Party A (and will
not keep in Party B's possession, recreate or deliver to anyone else) any
and all devices, records, data, notes, reports, proposals, lists,
correspondence, specifications, drawings blueprints, sketches, materials,
equipment, other documents or property, or reproductions of any
aforementioned items developed by Party B pursuant to Party B's employment
with Party A or otherwise belonging to Party A and/or any other member of
the Group, their successors or assigns. In the event of the
termination of Party B's employment, Party B agrees to sign and deliver
the "Termination Certification" attached hereto as Exhibit B.
|
|
10.
|
Liability
for Default. In the event that Party B breaches this
Agreement and causes any damages of Party A, he/she shall be liable for
such breach and shall compensate all damages resulting thereof. The
amount of compensation may be deducted directly from Party B's salary,
bonus and other incomes paid by Party A after Party B is informed and has
confirmed in written form.
|
|
11.
|
Notification
of New Employer. In the event that Party B leave the employ
of Party A, Party B hereby grant consent to notification by Party A to
his/her new employer about his/her rights and obligations under this
Agreement.
|
|
12.
|
Solicitation
of Employees. Party B agrees that for a period of 24 months
immediately following the termination of his/her relationship with Party A
for any reason, whether with or without cause, Party B shall not either
directly or indirectly solicit, induce, recruit or encourage any employees
of Party A and/or any other member of the Group to leave their employment,
or take away such employees, or attempt to solicit, induce, recruit,
encourage or take away employees of Party A and/or any other member of the
Group, either for himself/herself or for any other person or
entity.
|
Confidential
6
|
13.
|
Conflict
of Interest Guidelines. Party B agrees to diligently adhere
to the Conflict of Interest Guidelines attached as Exhibit C
hereto.
|
|
14.
|
Anti-Corruption
Policy. Party B agrees to diligently adhere to the
Anti-Corruption Policy of Party A attached hereto as Exhibit
D.
|
|
15.
|
Representations.
Party B agrees to execute any warranties or verify any proper document
required to carry out the terms of this Agreement. Party B represent
that his/her performance of all the terms of this Agreement will not
breach any agreement to keep in confidence proprietary information
acquired by Party B in confidence or in trust prior to his/her employment
by Party A. Party B has not entered into, and Party B agrees he/she
will not enter into any oral or written agreement in conflict
herewith.
|
|
16.
|
Arbitration.
|
|
16.1
|
Arbitration.
THE PARTIES AGREE THAT ANY DISPUTE OR CONTROVERSY ARISING OUT OF, RELATING
TO, OR CONCERNING ANY INTERPRETATION, CONSTRUCTION, PERFORMANCE OR BREACH
OF THIS AGREEMENT, SHALL BE SUBMITTED TO CHINA INTERNATIONAL ECONOMIC AND
TRADE ARBITRATION COMMISSION ("CIETAC") FOR
ARBITRATION. THE ARBITRATION SHALL BE CONDUCTED IN BEIJING IN
ACCORDANCE WITH THE THEN APPLICABLE ARBITRATION RULES OF CIETAC. THE
ARBITRATION AWARD SHALL BE FINAL, CONCLUSIVE AND BINDING ON THE PARTIES TO
THE ARBITRATION.
|
|
16.2
|
Consideration.
PARTY B UNDERSTAND THAT EACH PARTY’S PROMISE TO RESOLVE CLAIMS BY
ARBITRATION IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT, RATHER
THAN THROUGH THE COURTS, IS CONSIDERATION FOR OTHER PARTY’S LIKE
PROMISE.
|
|
17.
|
General
Provisions
|
|
17.1
|
Governing
Law. This Agreement will be governed by the laws of the
People's Republic of China, without reference to choice of laws or
conflict of laws principles.
|
|
17.2
|
Entire
Agreement. This Agreement sets forth the entire agreement and
understanding between Party A and Party B relating to the subject matter
herein, supersedes any prior agreement(s) between us regarding the subject
matter herein, and merges all prior discussions between us. No
modification of or amendment to this Agreement, nor any waiver of any
rights under this agreement, will be effective unless in writing signed by
the party to be charged. Any subsequent change or changes in Party
B's duties, salary or compensation will not affect the validity or scope
of this Agreement.
|
Confidential
7
|
17.3
|
Severability.
If one or more of the provisions in this Agreement are deemed void by law,
then the remaining provisions will continue in full force and
effect.
|
|
17.4
|
Successors
and Assigns. This Agreement will be binding upon Party B's
heirs, executors, administrators and other legal representatives and will
be for the benefit of Party A, its successors, and its
assigns.
|
|
17.5
|
Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall be enforceable, and all of which together shall constitute one
agreement.
|
Confidential
8
Party
A: Xi’an Baorun Industrial Development Co., Ltd.
Name:
Gao Xincheng
|
By:
|
/s/ Gao Xincheng |
Party
B: Li Gaihong
|
By:
|
/s/ Li Gaihong |
Confidential
9
EXHIBIT
A
XI’AN
BAORUN INDUSTRIAL DEVELOPMENT CO., LTD.
CONFLICT OF INTEREST
GUIDELINES
It is the
policy of Xi’an Baorun Industrial Development Co., Ltd., its subsidiaries,
affiliates, successors or assigns (together, the "Company") to conduct its
affairs in strict compliance with the letter and spirit of the law and to adhere
to the highest principles of business ethics. Accordingly, all officers,
employees and independent contractors must avoid activities which are in
conflict, or give the appearance of being in conflict, with these principles and
with the interests of Party A. The following are potentially compromising
situations which must be avoided. Any exceptions must be reported to the
President and written approval for continuation must be obtained.
|
1.
|
Revealing
confidential information to outsiders or misusing confidential
information. Unauthorized divulging of information is a violation of
this policy whether or not for personal gain and whether or not harm to
Party A is intended. (The Confidential Information, Invention
Assignment and Non-Competition Agreement elaborates on this principle and
is a binding agreement.)
|
|
2.
|
Accepting
or offering substantial gifts, excessive entertainment, favors or payments
which may be deemed to constitute undue influence or otherwise be improper
or embarrassing to Party A.
|
|
3.
|
Participating
in civic or professional organizations that might involve divulging
confidential information of Party
A.
|
|
4.
|
Initiating
or approving personnel actions affecting reward or punishment of employees
or applicants where there is a family relationship or is or appears to be
a personal or social involvement (other than as officers of Party A
appointed by the board of directors of Party
A).
|
|
5.
|
Initiating
or approving any form of personal or social harassment of
employees.
|
|
6.
|
Investing
or holding outside directorship in suppliers, customers, or competing
companies, including financial speculations, where such investment or
directorship might influence in any manner a decision or course of action
of Party A.
|
|
7.
|
Borrowing
from or lending to employees, customers or
suppliers.
|
|
8.
|
Acquiring
real estate of interest to Party A.
|
|
9.
|
Improperly
using or disclosing to Party A any proprietary information or trade
secrets of any former or concurrent employer or other person or entity
with whom obligations of confidentiality
exist.
|
|
10.
|
Unlawfully
discussing prices, costs, customers, sales or markets with competing
companies or their employees.
|
Confidential
10
|
11.
|
Making
any unlawful agreement with distributors with respect to
prices.
|
|
12.
|
Improperly
using or authorizing the use of any inventions which are the subject of
patent claims of any other person or
entity.
|
|
13.
|
Engaging
in any conduct which is not in the best interest of Party
A.
|
Each
officer, employee and independent contractor must take every necessary action to
ensure compliance with these guidelines and to bring problem areas to the
attention of higher management for review. Violations of this conflict of
interest policy may result in discharge without warning.
Confidential
11
EXHIBIT
B
XI’AN
BAORUN INDUSTRIAL DEVELOPMENT CO., LTD.
CONFLICT OF INTEREST
GUIDELINES
The
following policies are made and will be enforced by Xi’an Baorun Industrial
Development Co., Ltd., its subsidiaries, affiliates, successors or assigns
(together, the "Company") that:
|
1.
|
The
use of Company funds or assets for any unlawful or improper purpose is
strictly prohibited. No payment shall be made to, or for the benefit
of, government employees for the purpose of, or otherwise in connection
with, the securing of sales to or obtaining favorable action by a
government agency. Gifts of substantial value to or lavish
entertainment of government employees are prohibited since they can be
construed as attempts to influence government decisions in matters
affecting Party A's operation. Any entertaining of public officials,
or the furnishing of assistance in the form of transportation or other
services should be of such nature that the official's integrity or
reputation will not be compromised.
|
|
2.
|
The
offer, payment or promise to transfer in the future company funds or
assets or the delivery of gifts or anything else of value to the
officials, the political parties or officials or candidates of the
political parties is strictly prohibited for the purpose of influencing
any act or decision of any such person in his or her official capacity,
including the decision to fail to perform his or her official functions or
to use such persons or party’s influence with a the government or
instrumentality in order to affect or to influence any act or decision of
such government or instrumentality in order to assist Party A in obtaining
or retaining business for or with, or directing business to any person or
entity.
|
|
3.
|
All
records must truly reflect the transactions they record. All assets
and liabilities shall be recorded in the regular books of account.
No undisclosed or unrecorded fund or asset shall be established for any
purpose. No false or artificial entries shall be made in the books
and records for any reason. No payment shall be approved or made
with the intention or understanding that any part of such payment is to be
used for any purpose other than that described by the document supporting
the payment.
|
|
4.
|
No
political contribution shall be made, directly or indirectly, with
corporate funds or assets regardless of whether the contributions are
legal under the laws of the county in which they are
made.
|
|
5.
|
Any
employee who learns of or suspects a violation of this Policy should
promptly report the matter to the President, Chief Financial Officer or
Internal Auditor, as appropriate in the circumstances. All managers
shall be responsible for the enforcement of and compliance with this
Policy, including the necessary distribution to insure employee knowledge
and compliance.
|
Confidential
12