EXECUTIVE EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the
“Agreement”) is
entered into as of _December 14_____________, 2010 by and between China
Botanical Pharmaceutical Inc. (the “Company”), and Xxxxx
Dong__ (the “Executive”)
(collectively the “Parties”; individually a “Party”).
WHEREAS, the Company desires
to employ the Executive, and the Executive desires to be employed by the
Company, as Chief Financial Officer; and
WHEREAS, Executive has
knowledge that will be of value and service to the Company.
NOW, THEREFORE, in
consideration of the mutual covenants set forth in this Agreement and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Term of
Employment. This Agreement shall become effective on _December
14,____, 2010. The term of employment shall be ____3_______ years,
unless this Agreement is terminated prior to the expiration of such ______3_____
year period (the “Term”).
2. Position and
Duties. The Executive shall render services to the Company and
its subsidiaries, including Company Parent, in the position of chief financial
officer and perform all services appropriate to that position as well as other
services as may reasonably be assigned by the Company. The
Executive’s principal place of employment shall be in Harbin, located in the
Heilongjiang Province, within the PRC or any other place as agreed by the
Parties from time to time. The Executive shall devote most of his
working time, attention and skill to the discharge of his duties of his office
and shall faithfully and diligently perform such duties and exercise such powers
as may from time to time be assigned to or vested in him, and shall observe and
comply with all resolutions and directions from time to time made or given by
the Chief Executive Officer and the Board of Directors of the Company
(the “Board”). The
Executive shall at all times keep the Board promptly and fully informed of his
conduct relating to material matters, decisions and transactions affecting or
involving the Company or any of its subsidiaries or controlled affiliates
(collectively, the “Group” and each a
“Group
Company”) and provide such explanations as may reasonably be
required. Insofar as the internal rules and regulations of the Group
or the Group Companies are applicable to the Executive, the Executive undertakes
to abide by such rules and regulations.
3. Remuneration and
Benefits. Subject to the Company’s policies and practices,
during the Term, the Executive shall be entitled to the following remuneration
and benefits (on a cumulative basis):
a. Base
Salary. The Company shall pay the Executive a total base
salary of RMB 600,000 per year (the “Annual Base Salary”
or “Base
Salary”). The Base Salary shall be paid by the Company in
accordance with the Company’s regularly established payroll practices applicable
to all Company employees.
b. Benefits. The
Executive shall be eligible to participate in the benefits generally made
available by the Company to its executives in accordance with the benefit plans
established by the Company, as the same may be amended from time to time in the
Company’s sole discretion.
c. Equity
Incentives. The Executive shall be granted an aggregate of
200,000 shares of company option to purchase company’s common stock in his or
her 3 year’s agreement Term and the option shall have a term of 3
years. The excercise price of the option should be equal to the fair market
value of the effective day of the Agreement. The vesting details as
following:
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Vesting Date*
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Number of Shares Issuable
Upon Exercise
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Exercise Price
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Dec
14, 2011
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60,000
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the
fair market value of the effective day of the Agreement
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Dec
14, 2012
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70,000
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the
fair market value of the effective day of the Agreement
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Dec
14, 2013
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70,000
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the
fair market value of the effective day of the
Agreement
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d. Holidays. The
Executive shall be eligible for the holiday benefits generally made available by
the Company to its executives in accordance with the holiday policies of the
Company, as the same may be amended from time to time in the Company’s sole
discretion.
e. Insurance. The
Company shall pay for life insurance and medical insurance policies with an
internationally recognized insurance provider (or such other insurance provider
as agreed between the Parties) for the benefit of the Executive, provided that
(a) the annual premium of all such insurance policies in any one year shall
be no more than Renminbi (“RMB”)
[10,000__________] in the aggregate; (b) the beneficiaries under the life
insurance policy shall be designated by the Executive; (c) the other terms
of the insurance policies (including, but not limited to, the type of policy and
coverage) shall be reasonably satisfactory to the Executive and (d) the
Executive satisfies the eligibility requirements of such policies.
f. Expenses. The
Company shall reimburse the Executive for reasonable and necessary business
expenses incurred by the Executive in connection with the performance of the
Executive’s duties and
obligations as set forth herein during the Term; provided the Executive shall
provide reasonable supporting documentation with respect to such expenses, if
requested.
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g. Indemnification. Subject
to the advice of an appropriate human resource adviser engaged by the Company to
ascertain the scope of such indemnity, the Company shall fully indemnify the
Executive for any losses incurred in his capacity as a director and/or officer
of any of the Group Companies, if the Company’s director and officer liability
insurance is inadequate to cover such losses; provided the Company shall
not be responsible for any losses caused by or attributable to the Employee’s
gross negligence or willful default.
Unless
otherwise indicated herein and as agreed by the Parties and to the extent
permitted by the governing law (as described in Section 7(e) below), all of
the foregoing remuneration and benefits shall be paid to such account in RMB or
any other currency as designated by the Executive. Unless otherwise
agreed by the Parties in writing, any conversion from United States Dollars to
RMB and vice versa shall be effected at the exchange rate published by the
People’s Bank of China for the relevant period or date (as the case may
be).
4. Amendment, Termination and
Discharge of this Agreement.
a. Amendment to and Termination
of the Agreement. This Agreement may not be modified, amended,
renewed or terminated except by an instrument in writing, signed by the
Executive and the Company.
b. Discharge of the
Agreement.
(i) By
Death. This Agreement shall be discharged automatically upon
the Executive’s death. In such event, the Company shall pay to the
Executive’s beneficiaries full amount of any compensation then due and payable
under Section 3 hereof to which the Executive is entitled as of the date of
termination.
(ii) By
Disability. If (i) the Executive becomes eligible for the
Company’s long-term disability benefits or (ii) the Executive is unable to
carry out the responsibilities and functions of the position held by the
Executive by reason of any physical or mental impairment, for a period of more
than ninety (90) consecutive days or more than one hundred twenty (120) days in
any consecutive twelve-month period, then, to the extent permitted by law, the
Company may terminate the Executive’s employment. In the event that
the Company terminates the Executive’s employment on grounds of disability, the
Company shall pay to the Executive full amount of any compensation then due and
payable under Section 3 hereof to which the Executive is entitled as of the
date of termination and thereafter (subject to Section 7(f)) all
obligations of the Company under this Agreement shall cease. Nothing
in this section shall affect the Executive’s rights under any disability plan
implemented by the Company in which the Executive is a participant, if
any.
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c. Early Termination by the
Company. The Company may dismiss the Executive for Cause (as hereinafter
defined) at any time or by serving the Executive __Three_____ (_3_) months’
prior written notice. During such notice period, the Executive shall
continue to diligently perform all of the Executive’s duties
hereunder. In the event of dismissal without Cause, the Executive
will be eligible to receive an amount equal to the Monthly Salary multiplied by
(M + 12), where M shall mean the number of years Executive has been employed by
the Company pursuant to this Agreement, payable in full immediately following
the receipt by the Executive of such written notice. For the for
purposes of this Agreement, Cause shall
include: (i) the conviction of a felony or any crime involving
moral turpitude, fraud or misrepresentation, (ii) the continued failure by
Executive to substantially perform his duties to the Company after receipt of
written notice from the Company specifying any action or inaction by Executive
which is deemed by the Company to constitute a failure to perform his duties
hereunder with suggestions, where feasible, as to how Executive may remedy such
failure, and Executive has failed to correct the unsatisfactory performance
within fifteen (15) days of such notice, (iii) Executive’s gross
negligence or willful misconduct which is materially injurious to the Company,
monetarily or otherwise, (iv) proven dishonesty by Executive adversely
affecting the Company as determined by the Board, and (v) any material
breach by Executive of the Company’s then current policies with written notice
thereof which has note been cured with 30 days of such notice where such breach
is not one subject to immediate termination under the Company’s policies, or of
the covenants contained in Section 5 of this Agreement. For
purposes of this paragraph, no act or failure to act on Executive’s part shall
be considered “willful” unless done, or omitted to be done, by Executive not in
good faith and without reasonable belief that his action or omission was in the
best interest of the Company. If at any time the Company shall
determine that Executive has engaged in one or more activities constituting
“Cause” for termination hereunder, Executive’s employment shall be terminated
for Cause.
d. Early Termination by the
Executive.
(i) Termination by Executive for
Good Reason. If the Executive selects to terminate his
employment for Good Reason (as hereinafter defined), the Executive will be
eligible to receive an amount equal to the Monthly Salary multiplied by (M +
12), where M shall mean the number of years the Executive has been employed by
the Company pursuant to this Agreement, payable in full immediately following
the Company’s receipt of such termination notice. No Annual Bonus
shall be payable upon such termination. Thereafter (subject to
Section 7(f)) all obligations of the Company under this Agreement shall
cease. For the purpose of this Agreement, “Good Reason” shall mean
any of the following events if (i) the event is effected by the Company
without the consent of the Executive and (ii) such event is not rectified
within twenty (20) days by the Company to the Executive’s reasonable
satisfaction:
(1) a
significant change in the Executive’s position with the Company or a change to
his duties or responsibilities which materially reduces the Executive’s level of
responsibility; or
(2) the
Company fails to perform this Agreement or violates the relevant labor laws
applicable to the Company’s business, regulations or infringes upon any of the
Executive’s rights or interests; or
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(3) the
imposition by the Board on Executive of any action or responsibility involving
the commission of (i) a felony, (ii) criminal dishonesty,
(iii) any crime involving moral turpitude or (iv) fraud;
or
(4) any
action by the Board requiring Executive to breach Executive’s obligations and
responsibilities under this Agreement; or
(5) any
action of the Board constituting a constructive discharge or an unreasonable
interference with Executive’s ability to fulfill Executive’s obligations under
this Agreement; or
(6) a
Change of Control of the Company (for purposes of this Agreement, a “Change of Control of the
Company” shall mean (a) the sale of all or substantially all of the
assets of the Company in a transaction or series of transactions, (b) any
transaction or series of transactions in which an unaffiliated third party
acquires all or substantially all the issued and outstanding capital stock of
the Company, or (c) any merger, consolidation or reorganization to which
the Company is a party, except for a merger, consolidation or reorganization in
which, after giving effect to such merger, consolidation or reorganization, the
stockholders holding a majority of the outstanding voting power of the Company
immediately prior to the merger, consolidation or reorganization of the Company
have at least a majority of the outstanding voting power of the surviving entity
after the merger, consolidation or reorganization.
e. Termination other than for
Good Reason.
(i) The
Executive may terminate employment with the Company at any time for any reason
other than Good Reason or for no reason at all, upon three (3) months’
advance written notice. Upon a termination other than for Good
Reason, the Executive
shall be entitled to a contribution bonus (“Contribution
Bonus”). The distribution of such Contribution Bonus and its
amount shall be
determined by the Company and approved by the Board; provided that the
Contribution Bonus shall not exceed an amount equal to the Monthly Salary
multiplied by (M + 10), where M is the number of years the Executive has been
employed by the Company pursuant to the Agreement. No Annual Bonus
shall be payable upon such termination. During such notice period the
Executive shall continue to diligently perform all of the Executive’s duties
hereunder. The Company shall have the option, in its sole discretion,
to make the Executive’s termination effective at any time prior to the end of
such notice period as long as the Company pays the Executive all compensation
under Section 3 hereof to which the Executive is entitled through the last
day of the three (3) month notice period.
(ii) Termination
Obligations. The Executive agrees that on or before
termination of employment, he will promptly return to the Company all documents
and materials of any nature (including any materials in electronic form)
pertaining to his work with the Company, including all originals and copies of
all or any part of any Confidential Information along with any and all equipment
and other tangible and intangible property of the Company. The
Executive agrees not to retain any documents or materials or copies thereof
containing any Confidential Information.
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f. Any
payments made by the Company pursuant to Section 3 or Section 4 of
this Agreement shall be net of all applicable withholdings and
deductions.
5. Confidentiality;
Non-Compete: Non-Solicitation; No Conflict;
Non-Disparagement.
a. Confidentiality
Obligation. The Executive hereby agrees at all times during
the term of his employment and after termination, to hold in the strictest
confidence, and not to use, except for the benefit of the Group, or to disclose
to any person, corporation or other entity without written consent of the
Company, any Confidential Information. The Executive understands that
“Confidential Information” means any proprietary or confidential information of
the Group, its affiliates, their clients, customers or partners, and the Group’s
licensors, including, without limitation: technical data, trade
secrets, research and development information, product plans, services, customer
lists and customers (including, but not limited to, customers of the Group on
whom the Executive called or with whom the Executive became acquainted during
the term of his employment), supplier lists and suppliers, software,
developments, inventions, processes, formulas, technology, designs, drawings,
engineering, hardware configuration information, personnel information,
marketing, finances, information about the clients, customers, suppliers, joint
ventures, licensors, licensees, distributors and other persons with whom the
Group does business, information regarding the skills and compensation of other
employees of the Group or other business information disclosed to the Executive
by or obtained by the Executive from the Group, its affiliates, or their
clients, customers, suppliers or partners either directly or indirectly in
writing, orally or by drawings or observation of parts or
equipment. Notwithstanding the foregoing, Confidential Information
shall not include information that is common knowledge or that the Executive
demonstrates was or became generally available to the public other than as a
result of a disclosure by the Executive.
b. Non-Compete and
Non-Solicitation. In consideration of the termination
compensation payable to the Executive under Section 4, the Executive
irrevocably and unconditionally agrees with and undertakes to the Company that,
he will not (i) during his term of employment with the Company take up any
executive position in any company other than the Group Companies and will commit
most of his efforts towards the development of the business and operations of
the Group, except as currently contemplated or approved by the Board, and
(ii) for a period of twelve (12) months (or less than twelve
(12) months if agreed by the Board) after he ceases to be employed by any
Group Company (collectively the “Non-Compete
Period”):
(i) either
on his own account or in conjunction with or on behalf of any person, firm or
company carry on or be employed, engaged, concerned, provide technical expertise
or be interested directly or indirectly in, any business, whether as
shareholder, director, executive, partner, agent or otherwise, that is, in the
opinion of the Company in competition (whether directly or indirectly) with any
business carried on or proposed to be carried on by the Group from time to
time;
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(ii) either
on his own account or in conjunction with or on behalf of any other person, firm
or company, solicit or entice away or attempt to solicit or entice away from the
Group from time to time, the customer of any person, firm, company or
organization who shall at any time have been a customer, client, agent or
correspondent of the Group or in the habit of dealing with the Group;
or
(iii) either
on his own account or in conjunction with or on behalf of any other person, firm
or company, solicit or entice away or attempt to solicit or entice away from the
Group from time to time, any person who is an officer, manager or executive of
the Group whether or not such person would commit a breach of his contract of or
employment by reason of leaving such employment.
(iv) The
Executive shall be entitled to monthly compensation in consideration of
fulfilling the obligation under this Section, in an amount equal to the Monthly
Salary, for the period of the Non-compete Period.
If the
Executive fails to discharge his obligations under this Section 5 at any
time during the Non-compete Period, in addition to any and all legal remedies
that the Company is entitled to under the applicable law, the Executive shall
return to the Company such proportion of the compensation payable to the
Executive upon the termination of his employment pursuant to Section 4 of
this Agreement corresponding to the portion of the Non-compete Period during
which the Executive has failed to discharge his non-compete
obligation.
c. No
Conflict. The Executive represents and warrants that the
Executive’s execution of this Agreement, his employment with the Company, and
the performance of his proposed duties under this Agreement shall not violate
any obligations he may have to any former employer or other party, including any
obligations with respect to proprietary or confidential information or
intellectual property rights of such party.
d. Provisions reasonable for
protection of legitimate interest. The Parties agree that the
restrictions in Sections 5(a) and 5(b) are considered to be reasonable in
all circumstances. Notwithstanding the foregoing, it is agreed
between the Parties that if any one or more of such restrictions shall, either
by itself or together with other restrictions, be adjudged to go beyond what is
reasonable in all the circumstances for the protection of the legitimate
interest of any Group Company from time to time, but would be adjudged
reasonable if any particular restriction or restrictions were deleted or if any
part or parts of the wording thereof were deleted, restricted or limited in any
particular manner then the restrictions shall apply with such deletions,
restrictions or limitations, as the case may be.
e. Non-Disparagement. Following
the date hereof, the Executive shall not, directly or indirectly, in person or
through an agent or intermediary, disparage or make negative, derogatory or
defamatory statements about the Company and any of its officers, directors
employees or stockholders or their respective business activities or the
business activities of any of their affiliates or their respective officers,
directors, managers, employees or stockholders to any other person or entity,
whether true or not.
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6. Intellectual
Property. The Executive further agrees with and undertakes to
the Company that:
a. he
will not divulge, use (other than for the purpose and benefit of the Group) or
infringe the trade marks, logos, inventions, know-how, technology, proprietary
information and other intellectual property rights of the Group Companies;
and
b. all
trade marks, logos, inventions, know-how, technology, proprietary information
and other intellectual property rights developed, acquired or filed by the
Executives in the course of his work or employment shall belong solely to the
Group Company. The Executive agrees he will, upon demand by the
Company, execute any documents reasonably necessary to transfer any such
intellectual property rights to the Company.
7. General
Provisions.
a. Effectiveness. This
Agreement shall come into effect when it is signed by the Parties.
b. Entire
Agreement. This Agreement, including the exhibits attached
hereto (if any), constitutes the full and complete understanding of the Parties
hereto and supersedes any previous agreements between the Executive and any
Group Company.
c. Continuing
Obligations. The obligations in this Agreement will continue
in the event that the Executive is hired, renders services to or for the benefit
of or is otherwise retained at any time by any present or future Affiliates of
the Company. Any reference to the Company in this Agreement will
include such Affiliates. Upon the expiration or termination for any
reason whatsoever of this Agreement, the Executive shall forthwith resign from
any employment of office with the Company and all Affiliates of the Company
unless the Board requests otherwise. In this Agreement, “Affiliate”
shall mean (a) in relation to any individual, the immediate family of such
individual or any entity controlled by the individual, where “control” shall
mean the power to direct the management and policies or appoint or remove
members of the board of directors or other governing body of the entity,
directly or indirectly, whether through the ownership of voting securities,
contract or otherwise, and “controlled” shall be construed accordingly;
(b) in relation to any legal person, a company which is for the time being
a holding company of such legal person, or a subsidiary or controlled affiliate
of such legal person or of such holding company.
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d. Releases. In
consideration for any compensation and other benefits provided for in accordance
with Section 4 hereof, the adequacy of which is hereby acknowledged,
Executive, for and on behalf of himself and each of his heirs, executors,
administrators, personal representatives, successors and assigns, to the maximum
extent permitted by law, hereby covenants never to xxx and fully and forever
releases, acquits and discharges the Company, together with its subsidiaries,
parents and affiliates and each of its past and present direct and indirect
stockholders, directors, members, partners, officers, employees, attorneys,
agents and representatives, and their heirs, executors, administrators, personal
representatives, successors and assigns (collectively, the “Releasees”), from all
rights and liabilities up to and including the date of this Agreement to the
expiration thereof arising under or relating to Executive’s employment with the
Company, Executive’s application for and employment with the Company,
Executive’s service as an employee of the Company or any of the Releasees, the
termination of employment, and from any and all charges, complaints, claims,
liabilities, obligations, promises, agreements, controversies, damages, actions,
causes of actions, suits, rights, demands, costs, losses, debts and expenses of
any nature whatsoever, known or unknown, suspected or unsuspected and any claims
of wrongful discharge, breach of contract, implied contract, promissory
estoppel, defamation, slander, libel, tortious conduct, interference with
contract or business relations, intentional or negligent infliction of emotional
distress, sexual harassment, negligence, employment discrimination or claims
under any federal, state or local employment statute, law, order or ordinance,
including without limitation any rights or claims arising under any national,
state or municipal ordinance in China relating to discrimination in employment,
or any applicable statutory or common laws relating to the terms, conditions or
termination of employment, discrimination in employment, or contract- or
tort-based claims in connection therewith.
e. Governing Law and Dispute
Resolution. The execution, validity, interpretation and
performance and resolution of disputes under this Agreement shall be governed by
and construed in accordance with the officially published and publicly available
laws of the State of New York. When the officially published and
publicly available laws of the State of New York do not apply to any particular
matter, international legal principles and practices shall apply (including
available laws of the PRC).
Any
disputes or claims relating to this Agreement or the interpretation, breach,
termination or validity hereof shall be resolved through friendly consultations,
commencing upon written notice given by one Party to the other Party of the
existence of such a claim or dispute. If the dispute or claim cannot
be resolved after thirty (30) days of such notice, either Party may request
arbitration by a labor dispute arbitration committee established in accordance
with Section (h) below. If either Party disagrees with the
arbitral award of the labor dispute arbitration committee, such Party may
institute legal proceedings with the authorized court within 15 days after
notification of the arbitral award
f. Assignability. The
terms of this Agreement will remain in effect and shall be binding upon any
successor in interest including any entity with which the Company may merge or
consolidate or to which all or substantially all of its assets may be
transferred. A reference to the Company shall include its
successors. Except as set forth in the preceding sentence, this
Agreement may not be assigned by a Party to any third party, without the prior
consent of the other Party.
g. Survival. The
Parties’ obligations under Sections 5 and 6 hereof shall survive and
continue in effect after the termination of this Agreement, whatever the reason
for such termination.
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h. Dispute Resolution.
All disputes arising out of or in connection with this Agreement shall be
finally settled under the Rules of Arbitration of the International Chamber of
Commerce by one (1) arbitrator appointed in accordance with the said
Rules. The place of arbitration shall be resolved by the Court of
State of Nevada. The language of the arbitral proceedings shall be English (and
translated to Mandarin, if possible). The award shall be rendered
within nine (9) months of the appointment of the arbitrator, unless the
arbitrator determines that the interest of justice requires that such limit be
extended. Judgment upon any award(s) rendered by the arbitrator may
be entered in any court having jurisdiction thereof. Nothing in this
Agreement shall prevent either party from seeking provisional measures from any
court of competent jurisdiction, and any such request shall not be deemed
incompatible with the agreement to arbitrate or a waiver of the right to
arbitrate. The fees payable to the ICC (including arbitrator fees and
costs but excluding any filing fee payable by a Party commencing the
arbitration) shall be borne equally by the Parties; provided,
however, that the
Company shall pay, and the Executive shall not be responsible for, any such fees
payable to the ICC that exceed €30,000. The Company and the Executive
acknowledge that attorneys fees shall be payable by the Party incurring such
attorneys fees and any filing fees payable in connection with commencing any
arbitration proceeding shall be payable by the Party commencing such arbitration
proceeding, and no such attorneys fees and filing fees shall be counted toward
the forgoing €30,000 cap.
i. Notices. Notices
under this Agreement shall be given in writing to the relevant Party at the
address stated herein (or to such other address as it shall have notified the
other Party previously in writing).
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to
the Company at:
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The
11th Floor, Changjiang International Building, Xx. 00,
Xxxxxxxxxx
Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxx, Xxxxxxxxxxxx
Xxxxxxxx,
P.R. China 150090
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Attention: _Shaoming
Li_____________________
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to
the Executive at:
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Xxxxxxxxx 000, Xxxx 0, Xxxxxxxx 00, Xxxxxxx
Forestry
University, Xx. 00, Xxxxxxxx Xxxx Xxxx, Xxxxxxx
Xxxxxxxx
Xxxxxxx,
000000
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j. Language and Copies of the
Agreement. This Agreement shall be executed in Chinese and
English in two (2) original copies. The English version shall
prevail in case of conflict. Each Party shall receive one
(1) original copy, all of which shall be equally valid and
enforceable.
[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK AND SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the
undersigned has hereunto caused this Agreement to be executed as of the day and
year first above written.
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CHINA
BOTANICAL
PHARMACEUTICAL
INC.
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By:
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/s/
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Name:
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Title:
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EXECUTIVE
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By:
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/s/
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11
