CHINA AGRITECH, INC. INDEPENDENT DIRECTOR CONTRACT
Exhibit
99.1
CHINA
AGRITECH, INC.
THIS
AGREEMENT (this “Agreement”) is made
as of the 8th
day of January, 2010 and is by and between China Agritech, Inc., a Delaware
corporation (hereinafter referred to as the “Company”) and Xx.
Xxxxxxx Law (hereinafter referred to as the “Director”).
BACKGROUND
The Board
of Directors of the Company desires to appoint the Director to serve as a member
of the Board of Directors and to have the Director perform the duties of an
independent director and the Director desires to be so appointed for such
position and to perform the duties required of such position in accordance with
the terms and conditions of this Agreement.
AGREEMENT
In
consideration of the premises and the mutual covenants and agreements contained
herein, the adequacy and sufficiency of which are hereby acknowledged, the
Company and the Director hereby agree as follows:
1. DUTIES. The Company
requires that the Director will be available to perform the duties of an
independent director customarily related to this function, customarily performed
by independent directors of similarly situated companies and as may be
determined and assigned by the Board of Directors of the Company and/or required
by the Company’s constituent instruments, including its certificate or articles
of incorporation, bylaws and its corporate governance and board committee
charters, each as amended or modified from time to time, and by applicable law,
including the Delaware General Corporation Law. The Director agrees
to devote as much time as necessary to perform completely the duties as the
Director of the Company, including duties as a member of the Nominating and
Governance Committee and/or such other committees as the Director may hereafter
be appointed to.
2. TERM. The term of
this Agreement shall commence as of the date of the Director’s appointment by
the Board of Directors of the Company (in the event the Director is appointed to
fill a vacancy) or the date of the Director’s election by the stockholders of
the Company and shall continue until the earlier of one year or the Director’s
removal or resignation.
3. COMPENSATION. The
Company will pay the Director a director’s fee of $20,000 per annum, payable in
equal semi annually installments. This fee represents a retainer for
services rendered as a member of the Company’s Board of Directors, and is in
addition to any fees to which the Director may be entitled under guidelines and
rules established by the Company from time to time for compensating non-employee
directors for serving on, and attending meetings of committees of its Board of
Directors and the board of directors of its subsidiaries.
4. EXPENSES. In
addition to the compensation provided in paragraph 3 hereof, the Company will
reimburse the Director for pre-approved reasonable business related expenses
incurred in good faith in the performance of the Director’s duties for the
Company. Such payments shall be made by the Company upon submission
by the Director of a signed statement itemizing the expenses incurred. Such
statement shall be accompanied by sufficient documentary matter to support the
expenditures.
5. CONFIDENTIALITY. The
Company and the Director each acknowledge that, in order for the intents and
purposes of this Agreement to be accomplished, the Director shall necessarily be
obtaining access to certain confidential information concerning the Company and
its affairs, including, but not limited to business methods, information
systems, financial data and strategic plans which are unique assets of the
Company (“Confidential
Information”). The Director covenants not to, either directly
or indirectly, in any manner, utilize or disclose to any person, firm,
corporation, association or other entity any Confidential
Information.
6. NON-COMPETE. During
the term of this Agreement and for a period of twelve (12) months following the
Director’s removal or resignation from the Board of Directors of the Company or
any of its subsidiaries or affiliates (the “Restricted Period”),
the Director shall not, directly or indirectly, (i) in any manner whatsoever
engage in any capacity with any business competitive with the Company’s current
lines of business or any business then engaged in by the Company, any of its
subsidiaries or any of its affiliates (the “Company’s Business”)
for the Director’s own benefit or for the benefit of any person or entity other
than the Company or any subsidiary or affiliate; or (ii) have any interest as
owner, sole proprietor, stockholder, partner, lender, director, officer,
manager, employee, consultant, agent or otherwise in any business competitive
with the Company’s Business; provided, however, that the
Director may hold, directly or indirectly, solely as an investment, not more
than one percent (1%) of the outstanding securities of any person or entity
which is listed on any national securities exchange or regularly traded in the
over-the-counter market notwithstanding the fact that such person or entity is
engaged in a business competitive with the Company’s Business. In
addition, during the Restricted Period, the Director shall not develop any
property for use in the Company’s Business on behalf of any person or entity
other than the Company, its subsidiaries and affiliates.
7. TERMINATION. With
or without cause, the Company and the Director may each terminate this Agreement
at any time upon ten (10) days written notice, and the Company shall be
obligated to pay to the Director the compensation and expenses due up to the
date of the termination. Nothing contained herein or omitted herefrom shall
prevent the stockholder(s) of the Company from removing the Director with
immediate effect at any time for any reason.
8. INDEMNIFICATION. The
Company shall indemnify, defend and hold harmless the Director, to the full
extent allowed by the law of the State of Delaware, and as provided by, or
granted pursuant to, any charter provision, bylaw provision, agreement
(including, without limitation, the Indemnification Agreement executed
herewith), vote of stockholders or disinterested directors or otherwise, both as
to action in the Director’s official capacity and as to action in another
capacity while holding such office. The Company and the Director are
executing the Indemnification Agreement in the form attached hereto as Exhibit
A.
9. EFFECT OF
WAIVER. The waiver by either party of the breach of any
provision of this Agreement shall not operate as or be construed as a waiver of
any subsequent breach thereof.
10. NOTICE. Any and all
notices referred to herein shall be sufficient if furnished in writing at the
addresses specified on the signature page hereto or, if to the Company, to the
Company’s address as specified in filings made by the Company with the U.S.
Securities and Exchange Commission and if by fax to 00- 00-0000
1225.
11. GOVERNING LAW. This
Agreement shall be interpreted in accordance with, and the rights of the parties
hereto shall be determined by, the laws of the State of Delaware without
reference to that state’s conflicts of laws principles.
12. ASSIGNMENT. The
rights and benefits of the Company under this Agreement shall be transferable,
and all the covenants and agreements hereunder shall inure to the benefit of,
and be enforceable by or against, its successors and assigns. The
duties and obligations of the Director under this Agreement are personal and
therefore the Director may not assign any right or duty under this Agreement
without the prior written consent of the Company.
13. MISCELLANEOUS. If
any provision of this Agreement shall be declared invalid or illegal, for any
reason whatsoever, then, notwithstanding such invalidity or illegality, the
remaining terms and provisions of this Agreement shall remain in full force and
effect in the same manner as if the invalid or illegal provision had not been
contained herein.
14. ARTICLE
HEADINGS. The article headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
15. COUNTERPARTS. This Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one instrument. Facsimile execution and delivery of this
Agreement is legal, valid and binding for all purposes.
16. ENTIRE
AGREEMENT. Except as provided elsewhere herein, this Agreement
sets forth the entire agreement of the parties with respect to its subject
matter and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party to this Agreement with respect
to such subject matter.
IN
WITNESS WHEREOF, the parties hereto have cause this Independent Director’s
Contract to be duly executed and signed as of the day and year first above
written.
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CHINA
AGRITECH, INC.
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BY:
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/s/ Xx Xxxxx | ||
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Name:
Xx Xxxxx
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Title:
CEO and President
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INDEPENDENT
DIRECTOR
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/s/
Xxxxxxx Law
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Name:
Xxxxxxx Law
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Address:
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Xxxx
0000, Xxxxxxxx X,
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Xxxx
Xxxxxx Xxxxxxxxx,
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Xxxxxxx,
Xxxxx
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