INDEPENDENT DIRECTOR’S CONTRACT
Exhibit
10.1
THIS
AGREEMENT (The “Agreement”) is made on the 4th day of February, 2008 and is by
and between Xxxxx Technology Group Limited, (hereinafter referred to as
“Company”) and A. Xxxx Xxxx (hereinafter referred to as
“Director”).
BACKGROUND
The
Board
of Directors of the Company desires to appoint Director to fill an existing
vacancy and to have the Director perform the duties of independent director
and
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 for the above recited promises and the mutual promises contained
herein, the adequacy and sufficiency of which are hereby acknowledged, Company
and Director hereby agree as follows:
1. DUTIES.
The
Company requires that the Director be available to perform the duties of an
independent director as described in the Company’s Handbook for Prospective
Directors and such other duties customarily related to this function as may
be
determined and assigned by the Board of Directors of the Company and as may
be
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 Nevada General Corporation Law. Director agrees
to
devote as much time as is necessary to perform completely the duties as Director
of the Company, including duties as a member of the Audit Committee and such
other committees as the Director may hereafter be appointed to. The Director
will perform such duties described herein in accordance with the general
fiduciary duty of Directors arising under the Nevada General Corporation Law
and
Chapter 78 of the Nevada Revised Statutes.
2. TERM.
The
term of this Agreement shall commence from 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 12 months. This 12-month period
ending on the anniversary date of the Director’s appointment is a “Service
Year.” A new yearly-termed Independent Director Agreement approved by both
parties is required to renew this cooperation relationship between Director
and
Xxxxx Technology Group limited.
3. COMPENSATION.
For all
services to be rendered by Director in any capacity hereunder, the Company
agrees to pay Director a fee of $65,000 in cash during this Service Year, paid
quarterly. This Director’s fee above shall include one (1) Board of Directors
meeting and one (1) Audit Meeting in each of the four calendar quarters of
the
year (total eight (8) meetings per calendar year). Additionally, Director and
the Company shall meet no less than two (2) times per year, at the Company’s
facilities in China, for a period of no less than three (3) days or more than
five (5) days during each meeting for intensive discussions about the Company’s
operations and financial condition.
4. EXPENSES.
In
addition to the compensation provided in paragraph 3 hereof, the Company will
reimburse Director for pre-approved reasonable business related expenses
incurred in good faith in the performance of Director’s duties for the Company.
The Company shall pay for or reimburse Director for all expenses and costs
incurred in travel to and from meetings; travel within the United States shall
be non-stop economy fare and travel to and from China shall be Business Class
via most direct routing. 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 Director each acknowledge that, in order for the intents and
purposes of this Agreement to be accomplished, 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”). 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 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, shareholder,
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 five percent (5%) of the outstanding securities of any person or
entity which are 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 or its Subsidiaries.
7. TERMINATION.
With or
without cause, the Company is forbidden to terminate this Agreement during
the
service year by this contact. Director may only terminate this Agreement for
cause during the service year by this contract.
8. INDEMNIFICATION.
The
Company shall indemnify, defend and hold harmless Director, to the full extent
allowed by the law of the State of Nevada, 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
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.
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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 00-000-00000000.
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 Nevada 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
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 the within 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.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Independent Director’s
Contract to be duly executed and signed on the day and year above
written.
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XXXXX
TECHNOLOGY GROUP LIMITED
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BY:
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/s/
Liuhua Guo
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Name: Liuhua
Guo
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Title:
Chief Executive Officer
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INDEPENDENT
DIRECTOR
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BY:
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/s/
A. Xxxx Xxxx
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ACM
A. Xxxx Xxxx
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