CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made the 1st day of April
2002 by and between BroadenGate Systems, Inc., (the "Company"), and Xx. Xxx Xxx
Xxxxx, Xxxx, (the "Consultant").
RECITALS
WHEREAS, the Company wishes to engage the Consultant with respect to
certain aspects of its business;
WHEREAS, the Consultant is willing to make available to the Company the
consulting services provided for in the Agreement as set forth below;
AGREEMENT
NOW THEREFORE, in consideration of the premises and the respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. TERM
The term of this Agreement shall commence on the date hereof and end on
31st December 2002.
2. CONSULTING SERVICES
(a) Consulting Services. Market anaylsis, marketing planning and business
development, in particular for the software outsourcing market in Europe
and the South East Asia.
(b) Compensation. In consideration of the consulting services set forth in
paragraph 2 (a), and subject to the terms and conditions set forth herein
the Company hereby agrees to issue to Consultant 752,000 shares of the
Company's Common stock (the "Shares") and register such shares at the time
of initial issuance, or immediately thereafter, on Form S-8 under the
Securities Act of 1933.
(c) Issuance. Issuance and delivery of the Common Stock shall be within 45 days
of the full reporting date of the company, at which time, the Company shall
deliver to the Consultant:
(i) the certificate or certificates evidencing the Shares to be issued to
the Consultant and the respective dates, registered in the name of the
Consultant; and
(ii) evidence that the Shares have been registered on Form S-8 to be filed
upon issuance of the Shares to the Consultant, registering for resale
thereof.
3. CONFIDENTIAL INFORMATION
In connection with the providing of Consulting Services, hereunder, the
Company may provide the Consultant with information concerning the Company which
the Company deems confidential (the "Confidential Information"). The Consultant
understands and agrees that any Confidential Information disclosed pursuant to
this Agreement is secret, proprietary and of great value to the Company, which
value may be impaired if the secrecy of such information is not maintained. The
Consultant further agrees that he will take reasonable security measures to
preserve and protect the secrecy of such Confidential Information, and to hold
such information in confidence and not to disclose such information, either
directly or indirectly to any person or entity during the term of this agreement
or any time following the expiration or termination hereof; provided, however,
that the Consultant may disclose the Confidential Information to an assistant to
whom disclosure is necessary for the providing of services under this agreement.
4. REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Consultant that as of the
date hereof and as of the Closing Date (after giving effect to the transactions
contemplated hereby):
(a) Authorization and Validity of Shares. The Shares have been duly
authorized and are validly issued and outstanding, fully paid and non-assessable
and free of any preemptive rights. THE Shares are not subject to any lien,
pledge, security interest or other encumbrance.
(b) Authorization of Agreement. The Company has taken all actions and
obtain all consents or approvals necessary to authorize it to enter into this
Agreement.
(c) Registration. The Shares have been, or will be upon the filing of an
S-8 Registration Statement, registered pursuant to the Securities Act of 1933,
as amended, and all applicable state laws.
5. INDEMNIFICATION
(a) The Company shall indemnify the Consultant from and against any and all
expenses (including attorneys' fees), judgements, fines, claims, cause of
action, liabilities and other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Consultant in connection with such
action, suit or proceeding if (i) the Consultant was made a party to any action,
suit or proceeding by reason of the fact that the Consultant rendered advice or
services pursuant to this Agreement, and (ii) the Consultant acted in good faith
and in a manner reasonably believed by the Consultant to be in or not opposed to
the interests of the Company, and with respect to any criminal action or
proceeding, had no reasonable cause or believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Consultant did not act in good faith in or
not opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful. Notwithstanding the foregoing, the Company shall not indemnify the
Consultant with respect to nay claim, issue or matter as to which the consultant
shall have been adjudged to be liable for gross negligence or willful misconduct
in the performance other duties pursuant to this Agreement unless and only to
the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjunction of liability, but in
view of all the circumstances of the case, the Consultant is fairly and
reasonably entitled to indemnity for such expenses which such court shall deem
proper.
(b) The Consultant shall indemnify the Company from and against any and all
expenses (including attorney's fees), judgements, fines, claims, causes of
action, liabilities and other amounts paid (whether in settlement or otherwise
actually and reasonably incurred) by the Company in connection with such action,
suit or proceeding if (i) the Company was made a party to any action, suit or
proceeding by reason of the fact that the Consultant rendered advice or services
pursuant to this Agreement, and (ii) the Consultant did not act in good faith
and in a manner reasonably believed by the Consultant to be in or not opposed to
the interests of the Company, and with respect to any criminal action or
proceeding, did not reasonably believe his conduct was lawful. Notwithstanding
the foregoing, the Consultant shall not indemnify the Company with respect to
any claim, issue or matter as to which the Company shall have been adjudged to
be liable for gross negligence or willful misconduct in connection with the
performance of the Consultant's duties pursuant to this Agreement unless and
only to the extent that the court on which such action or suit was brought shall
determine upon application that, despite the adjunction of liability, bu in view
of all circumstances of the case, the Company is fairly and reasonably entitled
to indemnify for such expenses which such court shall deem proper.
6. INDEPENDENT CONTRACTOR STATUS
It is expressly understood and agreed that this is a consulting agreement
only and does not constitute an employer-employee relationship. The parties
further acknowlege that the Company's services hereunder are not exclusive, but
that the Consultant shall be performing services and undertaking other
responsibilities, for and with other entities or persons, which may directly or
indirectly compete with the Company.
7. NOTICE
All notices provided by this Agreement shall be in writing and shall be
given by facsimile transmission, overnight courier, by registered mail or by
personal delivery, by one party to the other, addressed to such other party at
the applicable address set forth below, or to such other address as may be given
for such purpose by such other party by notice duly given hereunder. Notice
shall be deemed properly given on the date of the delivery.
To Consultant: Xx. Xxx
Xxx Xxxxx, Andy
Xxxxx 0000, Xxxxxxx Xxxxx
00 Xxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
To the Company: BroadenGate Systems, Inc.
3/F, Xx. 0, Xxxxxxxxx
Xxxxx Xx-Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 000000
The People's Republic of China
8. MISCELLANEOUS
(a) Waiver. Any term or provision of this Agreement may be waived at any
time by the party entitled to the benefit thereof by a written instrument duly
executed by such party.
(b) Entire Agreement. This Agreement contains the entire understanding
between the parties hereto with respect to the transactions contemplated hereby,
and may not be amended, modified, or altered except by an instrument in writing
signed by the party against whom such amendment, modification, or alteration is
sought to be enforced. This Agreement supercedes and replaces all other
agreements between the parties with respect to any services to be performed by
the Consultant of behalf of the Company.
(c) Governing Law. This Agreement shall be construed and interpreted in
accordance with the laws of the State of Florida.
(d) Binding Effect. This Agreement shall bind and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
(e) Construction. The captions and headings contained herein are inserted
for convenient reference only, are not a part hereof and the same shall not
limit or construe the provisions to which they apply. Reference in this
agreement to "paragraphs" are to the paragraphs in this Agreement, unless
otherwise noted.
(f) Expenses. Each party shall pay and be responsible for the cost and
expanses, including, without limitations, attorneys's fees, incurred by such
party in connection with negotiation, preparation and execution of this
Agreement and the transactions contemplated hereby.
(g) Assignment. No party hereto may assign any of its rights or delegate
any of its obligations under this Agreement without the express written consent
of the other party hereto.
(h) Counterparts. This Agreement may be executed simultaneously in two
counterparts, each of which shall be deemed an original, but both of which
together shall constitute on and the same agreement, binding upon both parties
hereto, notwithstanding that both parties are not signatories to the original or
the same counterpart.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first above written.
BROADENGATE SYSTEMS, INC.
By:/s/ Hongbing Lan
By:/s/ Xxx Xxx Xxxxx, Xxxx
