Exhibit 4.1
CONSULTING AGREEMENT
AGREEMENT made this 2nd day of July, 2002, between CHINA XIN NETWORK
MEDIA CORP. ("CXN"), having a principal place of business located at 0000
Xxxxxxx Xxxx., Xxx. 000, Xxxxx-Xxxxxxx, Xxxxxx X0X 0X0, and MENG XXX XXX
("XXX"), having a principal residence at 105 Section 0 Xxxxx Xxx Xxxxx Xxxx,
00xx Xxxxx, Xxxxxx, Xxxxxx, Xxxxxxxx of China.
RECITALS:
X. XXX is a businessman operating from Taiwan and Greater China,
and
B. CXN desires to retain XXX as Executive Vice-President, Asian
Operations for CXN.
NOW THEREFORE, in consideration of their mutual promises made herein,
and for other good and valuable consideration, receipt of which is hereby
acknowledged by each party, the parties, intending to be legally bound, hereby
agree as follows:
I. Recitals The parties agree that the foregoing recitals are
true and correct and are incorporated herein by reference.
II. Engagement CXN hereby engages XXX and XXX hereby accepts such
engagement upon the terms and conditions set forth in this
Agreement.
A. Duties: XXX is engaged by CXN as Executive Vice-President,
Asian Operations, to represent the company in its dealings in
Greater China and Asia and to assist CXN in expanding its
business operations in "business consulting" services and
trade. XXX will report directly to the CEO of CXN. The term of
this Agreement begins immediately.
B. Terms: Subject to the terms of this Agreement relating to
termination, this Agreement shall continue in full force and
effect for a term of 12 months from the date hereof, and may
be renewed for successive periods of 12 months thereafter by
the mutual written agreement of the parties hereto made at
least one (1) month prior to the expiration of such term.
A. Fee Structure
1. Time is of the Essence: Time is of the essence with respect to the
parties' respective obligations under this Agreement.
2. Amount of Fee: In lieu of cash in the amount of US$560,000, CXN
hereby agrees to issue to XXX and XXX agrees to accept from CXN, 8,000,000
shares of common stock of CXN, which will be registered by CXN on a Registration
Statement Form S-8 with the Securities and Exchange Commission.
3. Timing of Payment of Fee: Any and all fees due to XXX under this
Agreement shall be paid upon execution of this Agreement.
7
E. Expense Reimbursement CXN shall reimburse XXX for all
reasonable expenses incurred. Expenses and materials
reimbursements shall be made promptly upon submission of an
expense report to CXN.
F. Independent Contractors In all matters relating to this
Agreement and otherwise, the parties hereto shall be and act
as independent contractors, neither shall be the employee or
agent of the other, and each shall assume any and all
liabilities for its own acts. As a result of its independent
contractor status, Consultant shall be responsible for any and
all income taxes and any and all other employment related
taxes or assessments which may be required of Consultant in
his jurisdiction. Neither party shall have any authority to
create any obligations, express or implied, on behalf of the
other party and neither party shall have any authority to
represent the other party as an employee or in any capacity
other than as herein provided.
III. Termination: This Agreement may be terminated by the written
notice of either party hereto forwarded to the other party hereto. This
Agreement shall be binding on the parties hereto for the Term provided herein,
unless terminated as provided herein.
IV. Arbitration: Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, or its interpretation or effectiveness,
and which is not settled between the parties themselves, shall be settled by
binding arbitration in Montreal, Quebec and judgment upon the award may be
entered in any court having jurisdiction thereof. Nothing, however, contained
herein shall limit Consultant's rights to injunctive relief as out in Paragraph
V of this Agreement. The prevailing party in any litigation, arbitration or
mediation relating to collection of fees, or any other matter under this
Agreement, shall be entitled to recover all its costs, if any, including without
limitation reasonable attorney's fees, from the other party for all matters,
including, but no limited to, appeals.
V. Injunctive Relief: XXX agrees that his violation or threatened
violation of any of the provisions of this Agreement shall cause immediate and
irreparable harm to CXN and, in such event, an injunction restraining XXX from
such violation may be entered against XXX in addition to any other relief
available to CXN.
VI. Representations and Warranties: XXX represents, warrants, covenants
and agrees that XXX has a right to enter into this Agreement; that XXX is not a
party to any agreement or understanding whether or not written which would
prohibit XXX'x performance of its obligations hereunder any proprietary
information of any other party which XXX is legally prohibited from using. A
breach of this Paragraph VI shall be ground for immediate termination of this
Agreement.
VII. Indemnification and Hold Harmless Clause: Each party to this
Agreement agrees to indemnify and hold harmless the other party against any
losses, claims, liabilities, damages and the like, joint or several, to which
the other directly or indirectly may become subject to in connection with and
arising out of the services which are the subject of this Agreement, except as
may be the direct cause of the gross negligence or wilful misconduct of the
party seeking indemnification.
VIII. Notice: Any notice given or required to be given under this
Agreement shall be in writing and service thereof shall be sufficient if sent be
hand or by telex or telegram, facsimile transmission or other similar means of
communication if confirmed by mail, or by certified mail, return-receipt
requested, with postage prepaid, directly to the parties' respective addresses
herein above set forth. Each party may, from time to time, by like written
notice, designate a different address to which notice should thereafter be sent.
IX. Survival: The covenants contained in this Agreement shall survive the
termination of this Consulting Agreement, for whatever reason, and
shall be binding on the parties.
X. Binding Effect: The terms of the Agreement shall be binding upon the
respective parties hereto, their heirs, their owners, co-owners, partners,
associates, employers, affiliates, subsidiaries, parent companies, nominees,
representatives, employees, agents, Consultants, Consultants and successors and
assigns.
8
XI. Assignment: This Agreement and the rights and obligations hereunder
may not be assigned or delegated by either party without the prior consent of
the other party.
XII. Choice of Law: This Agreement is made in the Province of Quebec,
and all questions related to the execution,construction, validity,
interpretation and performance of this Agreement and to all other issues or
claims arising hereunder, shall be governed and controlled by the laws of the
Province of Quebec.
XIII. Venue: The Province of Quebec shall be proper venue for any and
all litigation and other proceeds involving this Agreement.
XIV. Counterparts: This Agreement may be signed in more than one
counterpart, in which case each counterpart shall constitute an original of this
Agreement.
XV. Severability: In the event that any term, covenant, or condition of
this Agreement or the application thereof to any party or circumstances shall,
to any extent, be invalid or unenforceable, the remainder of this Agreement, or
the application of such term, covenant or condition to parties or circumstances
other than those as to which it is held invalid or non enforceable, shall not be
affected thereby; and each term, covenant, or condition of this Agreement shall
be valid and shall be enforced to the fullest extent permitted by law.
XVI. Modification: No amendment, modification, or waiver of this
Agreement or any provision hereof shall be valid unless in writing duly signed
by the parties hereto, which writing specifically refers to this Agreement and
states that it is an amendment, modification, or waiver.
XVII. Entire Agreement: This Agreement represents the entire agreement
between the parties to this Agreement concerning its subject matter, and any and
all prior representations and agreements with respect to such subject matter, if
any, are merged herein and are superseded by this Agreement.
XVII. Construction: Paragraph headings are for convenience only and are
not intended to expand or restrict the scope or substance of the provisions of
this Agreement. Whenever used herein, the singular shall include the plural, the
plural shall include the singular, and pronouns shall be read as masculine,
feminine, or neuter as the context requires.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
day and year first above written.
China Xin Network Media Corp.
Date: July 2, 2002 By: /s/ Xxxx-Xxxxxxxx Xxxxx
------------------------------------
Xxxx-Xxxxxxxx Xxxxx, CEO
Date: July 2, 2002 By: /s/ Meng Xxx Xxx
------------------------------------
Meng Xxx Xxx
9
