Exhibit 10.1
EMPLOYMENT AGREEMENT
This
employment agreement (this "Agreement") dated as of December 20, 2012 (the "Effective Date"), is made by and
between Sitoa Global Inc., a Delaware corporation (the "Company") and James Wang (the “Executive”) (collectively,
the “Parties”).
WHEREAS,
the Company is in the business (the “Business”) of building and managing leading online e-commerce marketplaces that
integrate online retailers with targeted customer groups interested in their product offerings and in order to help comply, satisfy
and maintain the Company’s reporting obligations in the United States, requires the skills, advice and supervision of a
suitable President and Chief Executive and Financial Officer;
WHEREAS,
the Executive will have the duties and responsibilities as described in Section 1 of the Agreement during the period when the
Executive is the President and Chief Executive and Financial Officer of the Company; and
WHEREAS,
the Parties wish to establish the terms of the Executive’s employment with 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:
| (a) | | During the Employment Term (as defined in Section 2 below), the Executive shall serve
as the President and Chief Executive and Financial Officer of the Company. In this capacity the Executive shall be responsible
for the following: |
| (i) | | assisting the Company with its management and business operations and policies; |
| (ii) | | establishing and maintaining proper internal financial controls; |
| (iii) | | identifying projects that fall within the ambit of the Company’s Business and
which may enhance shareholder value for the Company; |
| (iv) | | communicating with the media and all financial institutions with a view to enhancing
and promoting the image of the Company; |
| (v) | | developing all aspects of any program in connection with the development and the financing
of the development of the Business; |
| (vi) | | creating, developing, coordinating and managing any and all development and financing
programs in respect of the Business and each of their proposed or potential commercial applications together with all capital
funding projects and resources which are, or which may be, necessarily incidental thereto; |
| (vii) | | negotiating all proposed or potential joint venture and/or financing arrangements
in connection with the ongoing development of the Business and each of their proposed or potential commercial applications; |
| (viii) | | preparing and disseminating any and all business plans, news releases and special
shareholder or investment reports for the Company, or for any of the Company’s subsidiaries, as the case may be and as may
be determined by the Company in its sole and absolute discretion, and in connection with the ongoing development and financing
of the Business; |
| (ix) | | setting up of all corporate alliances for the Company, or for any of the Company’s
subsidiaries, as the case may be and as may be determined by the Company in its sole and absolute discretion, with all potential
and strategic business and financial partners for the purposes of the ongoing development and financing of the Business; |
| (x) | | assisting with other development and financing services in connection with the Business
as may be directed, from time to time, by the Board of Directors of the Company in its sole and absolute discretion; |
| (xi) | | assisting the Company with its reporting requirements and provide managerial advice,
including preparation of quarterly and annual reports as required under Sections 13(d) and 15 of the Securities and Exchange Act
of 1934, as amended; |
| (xii) | | assisting with establishing accounting procedures and policies as well as establishing
and maintaining internal financial controls and procedures; and |
| (xiii) | | such other assistances as the board may reasonably request. |
| (b) | | During the Employment Term, the Executive shall report directly to the Board of Directors
of the Company. The Executive shall obey the lawful directions of the Board of Directors and shall use his diligent efforts to
promote the interests of the Company and to maintain and promote the reputation thereof. |
| (c) | | During the Employment Term, the Executive shall use his best efforts to perform his
duties under this Agreement and shall devote of his business time, energy and skill in the performance of his duties with the
Company. |
| 2. | | EMPLOYMENT TERM. Except for earlier termination as provided in Section 6, the Executive's
employment under this Agreement shall be for two (2) years starting on the Effective Date and ending on December 19, 2014 (the
"Initial Term"). Subject to Section 6, this Agreement shall renew automatically for subsequent one-year periods (each
an “Additional Term”). Renewal shall be on the same terms and conditions contained herein, unless modified and agreed
to in writing by the Parties, and this Agreement shall remain in full force and effect (with any collateral written amendments)
without the necessity to execute a new document. A Party hereto determining not to renew agrees to notify the other Parties hereto
in writing at least 60 calendar days prior to the end of the Initial Term or Additional Term of its intent not to renew this Agreement
(the “Non-Renewal Notice”). |
| (a) | | Base Salary. In consideration of the services to be rendered hereunder, the Company
hereby agrees to pay the Executive a base salary of US$1,000 per month payable on the last day of each calendar month (the “Base
Salary”). |
| 4. | | TERMINATION. The Executive's employment and the Employment Term shall terminate on
the first of the following to occur: |
| (a) | | Disability. The thirtieth (30th) day following a written notice of termination by
the Company to the Executive 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 of termination by the Company to the Executive
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 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 Employee with the Company. |
| (d) | | Without Cause. On the sixtieth (60th) day following delivery of a Non-Renewal Notice
or other written notice by either Party to the other Party without Cause, other than for death or Disability of the Executive.
The Company may also terminate this Agreement for cause at any time in the event of the failure of the Executive to perform duties
assigned by the Company in a correct, timely and expeditious manner or in the event of material violation by the Executive of
any term or condition of this Agreement. |
| 5. | | 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) reimbursement for any unreimbursed expenses properly incurred through the date of termination; and (3) 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"). Additionally, in the event of termination of the Employment Term because of the
Executive’s Disability, all options granted to the Executive pursuant to Section 3(b) of this Agreement shall vest in full
and shall be exercisable by the Executive at any time during the twelve (12) months immediately following the date of such termination. |
| (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. Additionally, in the event of termination of the Employment
Term because of the Executive’s death, all options granted to the Executive pursuant to Section 3(b) of this Agreement shall
vest in full and shall be exercisable by the Executive’s estate at any time during the twelve (12) months immediately following
the date of the Executive’s Death. |
| (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. Additionally, in the event of termination of the Employment Term for Cause, all options granted to the Executive
pursuant to Section 3(b) of this Agreement shall expire immediately upon such termination |
| (d) | | Termination without Cause. Upon the termination of the Employment Term by the Company
without Cause, the Company shall pay or provide to the Executive (i) the Accrued Benefits and (ii) the Base Salary in effect on
the date of such termination for a period of [six (6)] months, payable in installments in accordance with the Company’s
normal payroll practices. Additionally, in the event of termination of the Employment Term without Cause, all options granted
to the Executive pursuant to Section 3(b) of this Agreement shall vest in full and shall be exercisable by the Executive at any
time during the twelve (12) months immediately following the date of such termination. |
| 6. | | NO ASSIGNMENT. This Agreement is personal to each of the Parties. Except as provided
below, no Party may assign or delegate any rights or obligations hereunder without first obtaining the written consent of the
other Party hereto; provided, however, that the Company may assign this Agreement to any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Company. |
| 7. | | NOTICES. For the purpose of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been duly given (1) on the date of delivery if delivered
by hand, (2) on the date of transmission, if delivered by confirmed facsimile or email, (3) on the first business day following
the date of deposit if delivered by guaranteed overnight delivery service, or (4) on the fourth business day following the date
delivered or mailed by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows: |
If to the Executive:
James Wang
4304, 43/F China Resources Building
26 Harbour Road, Wan Chai
Hong Kong HKSAR
If to the Company:
Sitoa Global Inc.
4304, 43/F China Resources Building
26 Harbour Road, Wan Chai
Hong Kong HKSAR
or to such other address as either Party may have furnished to the
other in writing in accordance herewith, except that notices of change of address shall be effective only upon receipt.
| 8. | | PROTECTION OF THE COMPANY'S BUSINESS. |
| (a) | | Confidentiality. The Executive acknowledges that during the course of his employment
by the Company (prior to and during the Employment Term) he has and will occupy a position of trust and confidence. The Executive
shall hold in a fiduciary capacity for the benefit of the Company and shall not disclose to others or use, whether directly or
indirectly, any Confidential Information regarding the Company, except (i) as in good faith deemed necessary by the Executive
to perform his duties hereunder, (ii) to enforce any rights or defend any claims hereunder or under any other agreement to which
the Executive is a party, provided that such disclosure is relevant to the enforcement of such rights or defense of such claims
and is only disclosed in the formal proceedings related thereto, (iii) when required to do so by a court of law, by any governmental
agency having supervisory authority over the business of the Company or by any administrative or legislative body (including a
committee thereof) with jurisdiction to order him to divulge, disclose or make accessible such information, provided that the
Executive shall give prompt written notice to the Company of such requirement, disclose no more information than is so required,
and cooperate with any attempts by the Company to obtain a protective order or similar treatment, (iv) as to such Confidential
Information that shall have become public or known in the Company's industry other than by the Executive's unauthorized disclosure,
or (v) to the Executive's spouse, attorney and/or his personal tax and financial advisors as reasonably necessary or appropriate
to advance the Executive's tax, financial and other personal planning (each an "Exempt Person"), provided, however,
that any disclosure or use of Confidential Information by an Exempt Person shall be deemed to be a breach of this Section 9(a)
by the Executive. The Executive shall take all reasonable steps to safeguard the Confidential Information and to protect it against
disclosure, misuse, espionage, loss and theft. The Executive understands and agrees that the Executive shall acquire no rights
to any such Confidential Information. "Confidential Information" shall mean information about the Company, its subsidiaries
and affiliates, and their respective clients and customers that is not disclosed by the Company and that was learned by the Executive
in the course of his employment by the Company, including, but not limited to, any proprietary knowledge, trade secrets, data
and databases, formulae, sales, financial, marketing, training and technical information, client, customer, supplier and vendor
lists, competitive strategies, computer programs and all papers, resumes, and records (including computer records) of the documents
containing such Confidential Information. |
| (b) | | Non-Competition. During the Employment Term and for the one-year period following
the termination of the Executive's employment for any reason (the "Restricted Period"), the Executive shall not, directly
or indirectly, without the prior written consent of the Company, provide employment (including self-employment), directorship,
consultative or other services to any business, individual, partner, firm, corporation, or other entity that competes with any
business conducted by the Company or any of its subsidiaries or affiliates on the date of the Executive's termination of employment
or within one year of the Executive's termination of employment in the geographic locations where the Company and its subsidiaries
or affiliates engage or propose to engage in such business (the "Business"). Nothing herein shall prevent the Executive
from having a passive ownership interest of not more than 2% of the outstanding securities of any entity engaged in the Business
whose securities are traded on a national securities exchange. |
| (c) | | Non-Solicitation of Employees. The Executive recognizes that he possesses and will
possess confidential information about other employees of the Company and its subsidiaries and affiliates relating to their education,
experience, skills, abilities, compensation and benefits, and inter-personal relationships with customers of the Company and its
subsidiaries and affiliates. The Executive recognizes that the information he possesses and will possess about these other employees
is not generally known, is of substantial value to the Company and its subsidiaries and affiliates in developing their business
and in securing and retaining customers, and has been and will be acquired by him because of his business position with the Company.
The Executive agrees that, during the Restricted Period, he will not, directly or indirectly, (i) solicit or recruit any employee
of the Company or any of its subsidiaries or affiliates (a "Current Employee") or any person who was an employee of
the Company or any of its subsidiaries or affiliates during the twelve (12) month period immediately prior to the date the Executive's
employment terminates (a "Former Employee") for the purpose of being employed by him or any other entity, or (ii) hire
any Current Employee or Former Employee. |
| (d) | | Non-Solicitation of Customers. The Executive agrees that, during the Restricted Period,
he will not, directly or indirectly, solicit or attempt to solicit (i) any party who is a customer or client of the Company or
its subsidiaries, who was a customer or client of the Company or its subsidiaries at any time during the twelve (12) month period
immediately prior to the date the Executive's employment terminates or who is a prospective customer or client that has been identified
and targeted by the Company or its subsidiaries for the purpose of marketing, selling or providing to any such party any services
or products offered by or available from the Company or its subsidiaries, or (ii) any supplier or vendor to the Company or any
subsidiary to terminate, reduce or alter negatively its relationship with the Company or any subsidiary or in any manner interfere
with any agreement or contract between the Company or any subsidiary and such supplier or vendor. |
| (e) | | Property. The Executive acknowledges that all originals and copies of materials, records
and documents generated by him or coming into his possession during his employment by the Company or its subsidiaries are the
sole property of the Company and its subsidiaries ("Company Property"). During the Employment Term, and at all times
thereafter, the Executive shall not remove, or cause to be removed, from the premises of the Company or its subsidiaries, copies
of any record, file, memorandum, document, computer related information or equipment, or any other item relating to the business
of the Company or its subsidiaries, except in furtherance of his duties under this Agreement. When the Executive's employment
with the Company terminates, or upon request of the Company at any time, the Executive shall promptly deliver to the Company all
copies of Company Property in his possession or control. |
| (f) | | Non-Disparagement. Executive shall not, and shall not induce others to, Disparage
the Company or its subsidiaries or affiliates or their past and present officers, directors, employees or products. "Disparage"
shall mean making comments or statements to the press, the Company's or its subsidiaries' or affiliates' employees or any individual
or entity with whom the Company or its subsidiaries or affiliates has a business relationship which would adversely affect in
any manner (1) the business of the Company or its subsidiaries or affiliates (including any products or business plans or prospects),
or (2) the business reputation of the Company or its subsidiaries or affiliates, or any of their products, or their past or present
officers, directors or employees. |
| (g) | | Cooperation. Subject to the Executive's other reasonable business commitments, following
the Employment Term, the Executive shall be available to cooperate with the Company and its outside counsel and provide information
with regard to any past, present, or future legal matters which relate to or arise out of the business the Executive conducted
on behalf of the Company and its subsidiaries and affiliates, and, upon presentation of appropriate documentation, the Company
shall compensate the Executive for any out-of-pocket expenses reasonably incurred by the Executive in connection therewith. |
| (h) | | Equitable Relief and Other Remedies. The Executive acknowledges and agrees that the
Company's remedies at law for a breach or threatened breach of any of the provisions of this Section 9 would be inadequate and,
in recognition of this fact, the Executive agrees that, in the event of such a breach or threatened or attempted breach, in addition
to any remedies at law, the Company, without posting any bond, shall be entitled to obtain equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent injunction or any other equitable remedy which may then be
available. In addition, without limiting the Company's remedies for any breach of any restriction on the Executive set forth in
this Section 9, except as required by law, the Executive shall not be entitled to any payments set forth in Section 6(d) hereof
if the Executive has breached the covenants applicable to the Executive contained in this Section 9, the Executive will immediately
return to the Company any such payments previously received under Section 6(d) upon such a breach, and, in the event of such breach,
the Company will have no obligation to pay any of the amounts that remain payable by the Company under Section 6(d). |
| (i) | | Reformation. If it is determined by a court of competent jurisdiction in any state
that any restriction in this Section 9 is excessive in duration or scope or is unreasonable or unenforceable under the laws of
that state, it is the intention of the parties that such restriction may be modified or amended by the court to render it enforceable
to the maximum extent permitted by the law of that state. The Executive acknowledges that the restrictive covenants contained
in this Section 9 are a condition of this Agreement and are reasonable and valid in temporal scope and in all other respects. |
| (j) | | Liability. Notwithstanding the provisions in this Section 9 the Executive shall
not be liable for any mistakes of fact, errors of judgment, for losses sustained by the Company or any subsidiary or for any acts
or omissions of any kind, unless caused by the negligence or willful or intentional misconduct of the Executive or any person
or entity acting for or on behalf of the Executive. |
| (k) | | Survival of Provisions. The obligations contained in this Section 9 shall survive
in accordance with their terms the termination or expiration of the Executive's employment with the Company and shall be fully
enforceable thereafter. |
| 9. | | INDEMNIFICATION. The Executive shall be indemnified to the extent permitted by the
Company's organizational documents and to the extent required by law. |
| 10. | | SECTION HEADINGS AND INTERPRETATION. The section headings used in this Agreement are
included solely for convenience and shall not affect, or be used in connection with, the interpretation of this Agreement. Expressions
of inclusion used in this agreement are to be understood as being without limitation. |
| 11. | | SEVERABILITY. The provisions of this Agreement shall be deemed severable and the invalidity
of unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. |
| 12. | | COUNTERPARTS. This Agreement may be executed in several counterparts, each of which
shall be deemed to be an original but all of which together will constitute one and the same Agreement. |
| 13. | | GOVERNING LAW AND VENUE. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of Delaware without regard to its conflicts of law principles. The
Parties agree irrevocably to submit to the exclusive jurisdiction of the courts located in the State of Delaware, for the purposes
of any suit, action or other proceeding brought by any Party arising out of any breach of any of the provisions of this Agreement
and hereby waive, and agree not to assert by way of motion, as a defense or otherwise, in any such suit, action, or proceeding,
any claim that it is not personally subject to the jurisdiction of the above-named courts, that the suit, action or proceeding
is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper, or that the provisions of this
Agreement may not be enforced in or by such courts. |
| 14. | | ENTIRE AGREEMENT. This Agreement contains the entire agreement between the Parties
with respect to the subject matter hereof and supersedes all prior agreements, written or oral, with respect thereto. No agreements
or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement. |
| 15. | | WAIVER AND AMENDMENT. No provision of this Agreement may be modified, amended, waived
or discharged unless such waiver, modification, amendment or discharge is agreed to in writing and signed by the Executive and
such officer or director as may be designated by the Board. No waiver by either Party at any time of any breach by the other Party
hereto of, or compliance with, any condition or provision of this Agreement to be performed by such other Party shall be deemed
a waiver or similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. |
| 16. | | WITHHOLDING. The Company may withhold from any and all amounts payable under this
Agreement such federal, state, local and foreign taxes as may be required to be withheld pursuant to any applicable law or regulation. |
| 17. | | AUTHORITY AND NON-CONTRAVENTION. The Executive represents and warrants to the Company
that he has the legal right to enter into this Agreement and to perform all of the obligations on his part to be performed hereunder
in accordance with its terms and that he is not a party to any agreement or understanding, written or oral, which could prevent
him form entering into this Agreement or performing all of his obligations hereunder. |
| 18. | | COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall
be deemed an original but all of which shall constitute one and the same instrument. |
IN WITNESS WHEREOF, the Parties have executed
this Agreement as of the date first written above.
| Date: December 21, 2012 |
Sitoa Global Inc. |
| |
By |
/s/ Philip Ka |
| |
|
Name: Philip Ka
Title: Director of the Board |
| Date: December 21, 2012 |
Sitoa Global Inc. |
| |
By |
/s/ James Wang |
| |
|
Name: James Wang
Title: Executive |
