Exhibit 4.3
CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made the second day of May
2002 by and between American Oriental Bioengineering Inc. (the "Company"), and
Xx. Xxxxx Xxxx Xxxx (the "Consultant").
RECITALS
WHEREAS, the Company wishes to engage the Consultant with respect to the
marketing and sales aspects of its business;
WHEREAS, the Consultant is willing to provide his services to the Company
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
May 1, 2004.
2. CONSULTING SERVICES
(a) Consulting Services. The Consultant will provide macro view on the
market for the Company's products and those of its competitors, formulate the
Company's sales strategies, promotional and sales campaigns ("Consulting
Services").
(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 300,000 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 Exchange
Act of 1934, as amended ("Exchange Act").
(c) Issuance. Issuance and delivery of the Shares shall be immediately
after 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
Consultant may come into contact 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 necessary security measures to preserve and protect the
secrecy of such Confidential Information, and to hold such Confidential
Information in strict confidence and not to disclose such Confidential
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
Consulting Services under this Agreement provided that such assistant enters
into similar agreement to protect the Confidential Information.
4. REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Consultant that as of
the date hereof:
(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.
5. INDEMNIFICATION
(a) The Company shall indemnify the Consultant from and against any and
all expenses (including reasonable attorneys' fees), judgments, 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 to the Company 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.
(b) The Consultant shall indemnify the Company from and against any and
all expenses (including attorney's fees), judgments, 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
to the Company 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.
6. REPRESENTATION OF THE CONSULTANT
The Consultant represents that he (she) is a qualified expert in his (her)
field in terms of providing Consulting Services to the Company and his (her)
provision of the Consulting Services is legal.
7. 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 acknowledge 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.
8. 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: (Name and Address)
To the Company: (Name and Address)
9. 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 New York, the United States of America,
without regard to its conflict of laws rules and principles.
(d) Each party hereby agrees to solve any dispute through friendly
discussions and arbitration in New York City pursuant to the rules of the
American Arbitration Association with one arbitrator jointly selected by the
parties. Arbitration shall be the exclusive and final remedy, the award of which
shall be final and enforceable against the parties.
(e) Binding Effect. This Agreement shall bind and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
(f) 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.
(g) Expenses. Each party shall pay and be responsible for the cost and
expanses, including, without limitations, attorneys' fees, incurred by such
party in connection with negotiation, preparation and execution of this
Agreement and the transactions contemplated hereby.
(h) 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.
(i) 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
one and the same agreement, binding upon both parties hereto, notwithstanding
that both parties are not signatories to the original or the same counterpart.
