FIRST AMENDMENT TO CONSULTING AGREEMENT
FIRST
AMENDMENT TO
This
First Amendment (this "Amendment")
to
Consulting Agreement is made and entered into on August 11, 2008, between China
Energy Recovery, Inc., a Delaware corporation (the "Company"),
and
ARC China, Inc., a Delaware corporation ("Consultant").
RECITALS:
A. On
June
20, 2008, the Company and Consultant entered into a Consulting Agreement
pursuant to which the Company agreed to retain Consultant's services and
Consultant agreed to render services to the Company (the "Agreement").
B. Pursuant
to the terms of the Agreement, the Company issued Consultant a Common Stock
Purchase Warrant (the "Warrant").
C. The
Company and Consultant desire to amend the Agreement to reduce the aggregate
number of shares of common stock of the Company which may be purchased by
Consultant upon exercise of the Warrant from 750,000 shares to 250,000 shares,
all of which shares were immediately vested and exercisable upon issuance of
the
Warrant and all of which shares have previously been purchased by Consultant
on
a cashless basis.
NOW,
THEREFORE, in consideration of the foregoing recitals and the mutual promises
and covenants contained in the Agreement and this Amendment, and for other
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
AGREEMENT:
1. Recitals.
The
above recitals are incorporated into this Amendment as substantive provisions
of
this Amendment.
2. Defined
Terms.
Except
as otherwise defined herein, all capitalized terms herein shall have the
meanings set forth in the Agreement.
3. Amendments
to the Agreement.
(a) Section
3.1 of the Agreement is hereby amended to replace the number "750,000" with
the
number "250,000."
(b) Sections
3.2(b) and 3.2(c) of the Agreement are hereby deleted in their
entirety.
4. Cancellation
of the Warrant.
Since
Consultant previously exercised the full amount of the vested and exercisable
portion of the Warrant and since the remaining portion of the Warrant is void
due to the amendments set forth in Section 3 of this Amendment, the Warrant
is
hereby cancelled and shall be immediately returned to the Company by Consultant.
5. Full
Force and Effect and Ratification.
Except
as
expressly set forth herein, all of the terms and provisions of the Agreement
shall remain unchanged, unmodified and in full force and effect, and the
Agreement shall be read together and construed with this Amendment. In the
event
of a conflict between the Agreement and this Amendment, the terms of this
Amendment shall control. All of the terms and provisions of the Agreement,
as
herein modified, are hereby ratified and reaffirmed.
6. Counterparts;
Facsimile Signatures.
This
Amendment may be executed in several counterparts, and each counterpart shall
be
binding on all parties hereto, notwithstanding that all of the parties are
not
signatory to an original or same counterpart. This Amendment may be executed
by
facsimile signature.
IN
WITNESS WHEREOF,
the
undersigned have duly executed this Amendment as of the date first above
written.
ARC
CHINA, INC.
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/s/ Qinghuan Wu | /s/ Xxxx Xxxxxxx | |
Qinghuan Wu | Xxxx Xxxxxxx | |
Chief Executive Officer | Chief Executive Officer |