SERVICES AGREEMENT
This
SERVICES AGREEMENT (this “Agreement”), dated as of March 30, 2010, by and
between Skystar Bio-Pharmaceutical Company, a Nevada corporation (the
“Company”), and R. Xxxxx Xxxxxx, an individual, whose address is 0000 Xxxxx
Xxxxx Xxxxxx Xxxx, Xxxxxxx 00000-0000 (“Consultant”). The Company and the
Consultant are collectively referred to herein as the “Parties.”
RECITALS:
A. The
Consultant is currently a member of the Company’s board of directors (the
“Board”), a position he has held since October 2001, and has been separately and
additionally acting as a United States Representative of the Company (the
“Representative”) since November 2006 pursuant to an oral agreement of the
Parties concerning the appointment and duties of, and compensation to, the
Consultant for his services.
B. The
Parties desire to memorialize their mutual understanding of the compensation to
the Consultant for his services through March 31, 2010.
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual agreements
herein contained and for other good and valuable consideration, the parties
hereto agree as follows:
1. Compensation for Past
Services.
1.1 Stock
Compensation. For his services as the Representative through
December 31, 2009, the Company shall issue to the Consultant 47,334 shares of
the Company’s common stock, par value $0.001 per share (the “Common Stock”), in
the form of a restricted stock grant (the “Past Services Shares”).
1.2 Expense
Reimbursement. The Company shall reimburse the Consultant for
reimbursable expenses incurred by him on behalf of the Company through December
31, 2009 in the amount of $9,918.39, payable by March 31, 2010.
1.3 Cash
Bonus. In recognition of the Consultant’s efforts and
contributions toward the Company’s past successes as Representative, the Company
shall pay to the Consultant a bonus in the amount of $100,000.00, payable by
March 31, 2010.
Upon his receipt of the Past Services
Shares and the reimbursable expenses described in Section 1.2, the Consultant
agrees and acknowledges that the Company shall have paid him for all salary,
wages, overtime, bonuses, fees, payments, and any other compensation and
benefits due to him through December 31, 2009, if any, and shall have paid him
for all incurred reimbursable expenses, if any, owed by the Company through
December 31, 2009.
2. Compensation for Services
from January 1, 2010 through March 31, 2010. For his services as the
Representative from January 1, 2010 through March 31, 2010, the Company shall
compensate the Representative as follows on March 31, 2010:
(a) Cash
compensation of $7,500 in cash;
(b) Reimbursable
expenses from January 1, 2010 through March 25, 2010 of $8,516.42;
and
(c) 2,500
shares of Common Stock, in the form of a restricted stock grant (the “Current
Services Shares”).
Upon his receipt of the foregoing
compensation, the Consultant agrees and acknowledges that the Company shall have
paid him for all salary, wages, overtime, bonuses, fees, payments, and any other
compensation and benefits due to him through March 31, 2010, if any, and shall
have paid him for all incurred reimbursable expenses, if any, owed by the
Company through March 25, 2010.
3. Consultant’s
Representations.
3.1 No
Violations. The Consultant represents that the entering into
and performance of this Agreement by will not violate any law, rule, regulation,
order, contract or agreement to which the Consultant is a party or is bound or
affected.
3.2 Stock
Issuance. In connection with the issuance of the Past Services
Shares and the Current Services Shares (collectively the “Shares”), the
Consultant understands and hereby acknowledges, represents and warrants (as the
case may be) that:
(a) Upon
the filing of an election pursuant to Section 83(b) of the Internal Revenue Code
with respect to such grant of the Shares, the Company will not reimburse the
Consultant for any federal and state taxes due as a result of such
election.
(b) At
all time that the Consultant is a member of the Board, the Consultant shall
abide by, and not act in contravention of, the Company’s Xxxxxxx Xxxxxxx Policy
as set forth in Section 10 of the Company’s Code of Ethics.
(c) As
of the date hereof:
(1) The
Shares will be acquired for investment for the Consultant’s own account, not as
a nominee or agent, and not with a view to the public resale or distribution
thereof within the meaning of the Securities Act, and the Consultant has no present intention
of selling, granting any participation in or otherwise distributing the
same.
(2) The
Consultant understands that the acquisition of the Shares involves substantial
risk. The Consultant has experience as an investor in securities of companies
and acknowledges that it is able to fend for itself, can bear the economic risk
of its investment and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of its investment
and protecting its own interests in connection with this
investment.
(3) The
Consultant is an "accredited investor" within the meaning of Regulation D of the
Securities Act.
(4) The
Consultant understands that (i) the Shares are characterized as "restricted
securities" under the Securities Act, inasmuch as they are being acquired from
the Company in a transaction not involving a public offering, and (ii) under the
Securities Act and applicable rules and regulations thereunder, such securities
may be resold without registration under the Securities Act only in certain
limited circumstances. The Consultant is familiar with Rule 144 under the
Securities Act, as presently in effect, and understands the resale limitations
imposed thereby and by the Securities Act.
4. Miscellaneous
Provisions.
4.1 The
Parties acknowledge and agree that the relationship between the Company and the
Consultant is that of independent contractors and not that of employer and
employee. Nothing in this Agreement is intended to create or will be deemed to
create or constitute a joint venture or partnership between the Company and the
Consultant.
4.2 The Consultant will be
responsible for the payment of all withholding, payroll and other taxes payable
in respect of the payments received by the Consultant under this Agreement and
hereby agrees to indemnify and hold the Company harmless from any obligation or
penalty arising from the failure to pay such taxes.
4.3 All
notices provided for in this Agreement shall be in writing, and shall be deemed
to have been duly given when delivered personally to the party to receive the
same, when delivered via overnight courier providing for next day delivery
service (“Overnight Courier”), when transmitted by facsimile (electronic receipt
confirmed), or when mailed first class postage prepaid, by certified mail,
return receipt requested, addressed to the party to receive the same at his or
its address set forth below, or such other address as the party to receive the
same shall have specified by written notice given in the manner provided for in
this Section 5.1. All notices shall be deemed to have been given: (a) as of the
date of personal delivery, (b) the first business day after delivery via
Overnight Courier, (c) on the electronically confirmed date of receipt during
business hours of the facsimile transmittal (or the following business day if
the facsimile is received after 5:30 p.m. PDT), or (d) three calendar days after
the date of deposit (postage pre-paid) with the U.S. Postal Service if delivered
via first class or certified mail.
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If
to the Consultant:
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R.
Xxxxx Xxxxxx
0000
Xxxxx Xxxxx
Xxxxxx
Xxxx, XX 00000-0000
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If
to the Company:
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Xxxx
00000, Xxxxxx Xxxxx
Xx.
0, Xxxxxxx Xxxx Xxxxx
Xxxxxx
Xxxxxxxx, Xxxx Xxxxxxxx, PRC
Attn:
Xxxxxxx Xx
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With
a copy (which will not constitute notice) to:
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Xxxxxxxxxx
& Xxxxx, LLP
00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx
Xxxxxxx, XX 00000
Attn:
Xxxxx X. Xxxxx, Esq.
Fax:
(000) 000-0000
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4.4 The
provisions of Sections 2.3 and 3, and any provisions relating to payments owed
to the Consultant after termination of this Agreement, shall survive termination
of this Agreement for any reason.
4.5 This
Agreement sets forth the entire agreement of the Parties relating to the
Services of the Consultant and is intended to supersede all prior negotiations,
understandings and agreements. No provisions of this Agreement may be waived or
changed except by writing by the party against whom such waiver or change is
sought to be enforced. The failure of any party to require performance of any
provision hereof or thereof shall in no manner affect the right at a later time
to enforce such provision.
4.6 All
questions with respect to the construction of this Agreement, and the rights and
obligations of the parties hereunder, shall be determined in accordance with the
law of the State of Nevada applicable to agreements made and to be performed
entirely in the State of Nevada. Any disputes, claims or causes of action by one
party against the other arising out of, in related to or concerning this
Agreement shall be commenced and maintained in any state or federal court
located in Xxxxx County of the State of Nevada, and the Consultant hereby
submits to the jurisdiction and venue of any such court.
4.7 This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of the Company. This Agreement shall not be assignable by the
Consultant, but shall inure to the benefit of and be binding upon the
Consultant’s heirs and legal representatives.
4.8 It
is the desire and intent of the parties that the terms, provisions, covenants
and remedies contained in this Agreement shall be enforceable to the fullest
extent permitted by law. If any such term, provision, covenant or remedy of this
Agreement or the application thereof to any person or circumstances shall, to
any extent, be construed to be invalid or unenforceable in whole or in part,
then such term, provision, covenant or remedy shall be construed in a manner so
as to permit its enforceability under the applicable law, to the fullest extent
permitted by law. In any case, the remaining provisions of the Agreement and the
application thereof to any person or circumstance other than those to which they
have been held invalid or unenforceable, shall remain valid and in full force
and effect.
[Remainder
of Page Intentionally Blank]
IN
WITNESS WHEREOF, the parties have executed this Consulting Services Agreement as
of the date first above written.
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“COMPANY”
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“CONSULTANT”
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R.
Xxxxx Xxxxxx
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By:
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/s/
Xxxxxxx Xx
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/s/
R. Xxxxx Xxxxxx
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R.
Xxxxx Xxxxxx
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Title:
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Chief
Executive Officer
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