EMPLOYMENT AGREEMENT
This
EMPLOYMENT AGREEMENT (the “agreements”) is
entered into as of August 26, 2010 by and between China Dredging Group Co.,
Ltd., a company incorporated and existing under the laws of the BVI (the “Company”)and Xx
Xxxxxxx Xxxx (Passport Number XX0000000), an individual (the “Executive”).The term
“Company” as used herein with respect to all obligations of the Executive
hereunder shall be deemed to include the Company and all of its direct or
indirect subsidiaries and affiliated (collectively, the “Group”).
RECITALS
A. The
Company desires to employ the Executive and to assure itself of the services of
the Executive
during the term of Employment (as defined below).
B. The
Executive desires to be employed by the Company during the term of Employment
and under
the terms and conditions of this Agreement.
AGREEMENT
The
parties hereto agree as follows:
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1.
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POSITION
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The
Executive hereby accepts a position of the Chief Executive Officer (the “Employment”) of the
Company.
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2.
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TERM
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Subject
to the terms and conditions of this Agreement, the initial term of the
Employment shall be 3 years, commencing on August 26, 2010 (the “Effective Date”),
until August 25, 2013, unless terminated earlier pursuant to the terms of this
Agreement.
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3.
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Salary
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(a) The
Executive’s annual base salary is HK$320,000 (or other equivalent currency) to
be paid on the fifth day of each month during the term of the Employment. The
Executive’s cash bonus shall be determined by the Board or the Compensation
Committee of the Board on a discretionary basis in accordance with the terms of
the Company’s Memorandum and Articles of Association.
(b) Benefits.
The Executive is eligible for participation in any standard employee benefit
plan of the Company that currently exists or may be adopted by the Company in
the future, but not limited to, any retirement plan, and travel holiday
policy.
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4.
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DUTIES
AND RESPONSIBILITIES
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The
Executive’s duties at the Company will include all jobs assigned by the
Company’s Chief
Executive Officer. If the Executive is the Chief Executive Officer of the
Company, the Executive’s duties will include all jobs assigned by the Board of
Directors of the Company (the “Board”).
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The
Executive shall devote all of his/her working time, attention and skills to the
performance of his/her duties at the Company and shall faithfully and diligently
serve the Company in accordance with this Agreement and the guidelines, policies
and procedures of the Company approved from time to time by the
Board.
The
Executive shall use his/her best efforts to perform his/her duties hereunder.
During the term of Employment the Executive shall not become an employee of any
entity, which competes with the business carried on by the Company (any such
business or entity, a “Competitor”), other
than the Company and any subsidiary or affiliate of the Company, provided that
nothing in this clause shall preclude the Executive from holding less than 5%
shares or other securities of any Competitor that is listed on any securities
exchange or recognized securities market anywhere.
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5.
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NO
BREACH OF CONTRACT
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The
Executive hereby represents to the Company that: (i) the execution and delivery
of this Agreement by the Executive and the performance by the Executive of the
Executive’s duties hereunder shall not constitute a breach of, or otherwise
contravene, the terms of any other agreement to which the Executive is a party
or otherwise bound, except for agreements that are required to be entered into
by and between the Executive and any member of the Group pursuant to applicable
law of the jurisdiction where the Executive is based, if any; (ii) that the
Executive has no information, confidential information and trade secrets
relating to any other person or entity which would prevent, or be violated by,
the Executive entering into this Agreement or carrying out his/her duties
hereunder.
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6.
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LOCATION
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The
Executive will be based in Fuzhou City, China or any other location as requested
by the Company during the term of this Agreement.
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7.
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TERMINATION OF THE
AGREEMENT
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(a)
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By the Company.
The Company may terminate the Employment for cause, at any time, without
advance notice or remuneration, if (i) the Executive is convicted or
pleads guilty to a felony, (ii) the Executive has been negligent or acted
dishonestly to the detriment of the Company, (iii) the Executive has
engaged in actions amounting to misconduct or failed to perform his/her
duties hereunder and such failure continues after the Executive is
afforded a reasonable opportunity to cure such failure,(iv)the Executive
has died, or (v)the Executive has a disability which shall mean a physical
or mental impairment which, as reasonably determined by the Board, renders
the Executive unable to perform the essential functions of his/her
employment with the company, even with reasonable accommodation that does
not impose an undue hardship on the Company, for more than 180 days in any
12-month period, unless a longer period is required by applicable law, in
which case that longer period would
apply.
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In
addition, the Company may terminate the Employment without cause, at any time,
upon one-month prior written notice to the Executive. Upon termination without
cause, the Company shall provide the Executive with severance payment in cash in
an amount equal to three months of the Executive’s base salary at the then
current rate. Under such circumstance, the Executive agrees not to make any
further claims for compensation for loss of office, accrued remuneration, fees,
wrongful dismissal or any other claim whatsoever against the Company or its
subsidiaries or the respective officers or employees of any of
them.
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(b)
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By the
Executive. If there is a material and substantial reduction in the
Executive’s existing authority and responsibilities, the Executive may
resign upon one-month prior written notice to the Company. In addition,
the Executive may resign prior to the expiration of the Agreement upon
three-month prior written notice to the
Company.
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(c)
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Notice of
Termination. Any termination of the Executive’s employment under
this Agreement shall be communicated by written notice of termination from
the terminating party to the other party. The notice of termination shall
indicate the specific provision(s) of this Agreement relied upon in
effecting the termination.
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8.
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CONFIDENTIALITY
AND NONDISCLOSURE
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(a)
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Confidentiality and
Non-disclosure. In the course of the Executive’s services, the
Executive may have access to the Company and/or the Company’s
customer/supplier’s and/or prospective customer/supplier’s trade secrets
and confidential information, including but not limited to those embodied
in memoranda, manuals, letters or other documents, computer disks, tapes
or other information storage devices, hardware, or other media or
vehicles, pertaining to the Company and/or the Company’s
customer/supplier’s and/or prospective customer/supplier’s business. All
such trade secrets and confidential information are considered
confidential. All materials containing any secrets and confidential
information are the property of the Company and/or the Company’s
customer/supplier and/or prospective customer/supplier, and shall be
returned to the Company and/or the Company’s customer/supplier and/or
prospective customer/supplier upon expiration or earlier termination of
this Agreement. The Executive shall not directly or indirectly disclose or
use any such trade secret or confidential information, except as required
in the performance of the Executive’s duties in connection with the
Employment, or pursuant to applicable
law.
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(b)
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Trade Secrets.
During and after the Employment, the Executive shall hold the Trade
Secrets in strict confidence; the Executive shall not disclose these Trade
Secrets to anyone except other employees of the Company who have a need to
know the Trade Secrets in connection with the Company’s business. The
Executive shall not use the Trade Secrets other than for the benefits of
the Company.
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“Trade
Secrets” means information deemed confidential by the Company, treated by the
Company or which the Executive knows or ought reasonably to have known to be
confidential, and trade secrets, including without limitation designs,
processes, pricing policies, methods, inventions, conceptions, technology,
technical data, financial information, corporate structure and know how,
relating to the business and affairs of the Company and its subsidiaries,
affiliates and business associates, whether embodied in memoranda, manuals,
letters or other documents, computer disks, tapes or other information storage
devices, hardware, or other media or vehicles. Trade Secrets do not include
information generally known or released to public domain through no fault of
yours.
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(c)
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Former Employer
Information. The Executive agrees that he or she has not and will
not, during the term of his/her employment, (i) improperly use or disclose
any proprietary information or trade secrets of any former employer or
other person or entity with which the Executive has an agreement or duty
to keep in confidence information acquired by Executive, if any, or (ii)
bring into the premises of Company any document or confidential or
proprietary information belonging to such former employer, person or
entity unless consented to in writing by such former employer, person or
entity. The Executive will indemnify the Company and hold it harmless from
and against all claims, liabilities, damages and expenses, including
reasonable attorneys’ fees and costs of suit, arising out of or in
connection with any violation of the
foregoing.
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(d)
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Third Party
Information. The Executive recognizes that the Company may have
received, and in the future may receive, from third parties their
confidential or proprietary information subject to a duty on the Company’s
part to maintain the confidentiality of such information and to use it
only for certain limited purposes. The Executive agrees that the Executive
owes the Company and such third parties, during the Executive’s employment
by the Company and thereafter, a duty to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it
to any person or firm and to use it in a manner consistent with, and for
the limited purposes permitted by, the Company’s agreement with such third
party.
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This
Section 8 shall survive the termination of this Agreement for any reason. In the
event the Executive breaches this Section 8, the Company shall have right to
seek, remedies permissible under applicable law.
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9.
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INVENTIONS
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(a)
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Inventions Retained
and Licensed. The
Executive doesn’t have any inventions, ideas, improvements, designs and
discoveries, whether or not patentable and whether or not reduced to
practice, original works of authorship and trade secrets made or conceived
by or belonging to the Executive (whether made solely by the Executive or
jointly with others) that (i) were developed by Executive prior to the
Executive’s employment by the Company (collectively, “Prior
Inventions” (ii) relate to the Company’ actual or proposed
business, products or research and development, and (iii) are not assigned
to the Company hereunder; the Executive hereby acknowledges that, if in
the course of his/her service for the Company, the Executive incorporates
into a Company product, process or machine a Prior Invention owned by the
Executive ,the Company is hereby granted and shall have a nonexclusive,
royalty-free, irrevocable, perpetual, worldwide right and license (which
may be freely transferred by the Company to any other person or entity) to
make, have made, modify, use, sell, sublicense and otherwise distribute,
such Prior Invention as part of or in connection with such product,
process or machine.
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(b)
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Disclosure and
Assignment of
Inventions. The
Executive understands that the Company engages in research and development
and other activities in connection with its business and that, as an
essential part of the Employment, the Executive is expected to make new
contributions to and create inventions of value for the
Company.
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From and
after the Effective Date, the Executive shall disclose in confidence to the
Company all inventions, improvements, designs, original works of authorship,
formulas, processes, compositions of matter, computer software programs,
databases, mask works and trade secrets (collectively, the “Inventions’), which
the Executive may solely or jointly conceive or develop or reduce to practice,
or cause to be conceived or developed or reduced to practice, during the period
of the Executive’s Employment at the Company. The Executive acknowledges that
copyrightable works prepared by the Executive within the scope of and during the
period of the Executive’s Employment with the Company are “works for hire” and
that the Company will be considered the author thereof. The Executive agrees
that all the Inventions shall be the sole and exclusive property of the Company
and the Executive hereby assigns all his/her right, title and interest in and to
any and all of the Inventions to the Company or its successor in interest
without further consideration.
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(c)
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Patent and Copyright
Registration. The
Executive agrees to assist the Company in every proper way to obtain for
the Company and enforce patents, copyrights, mask work rights, trade
secret rights, and other legal protection for the Inventions.
The Executive will execute any documents that the Company may reasonably
request for use in obtaining or enforcing such patents, copyrights, mask
work rights, trade secrets and other legal protections. The Executive’s
obligations under this paragraph will continue beyond the termination of
the Employment with the Company, provided that the Company will reasonably
compensate the Executive after such termination for time or expenses
actually spent by the Executive at the Company’s request on such
assistance, The Executive appoints the Secretary of the Company as the
Executive’s attorney-in-fact to execute documents on the Executive’s
behalf for this
purpose.
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(d)
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Return of Confidential
Material. In the
event of the Executive’s termination of employment with the Company for
any reason whatsoever, Executive agrees promptly to surrender and deliver
to the Company all records, materials, equipment, drawings, documents
and data of any nature pertaining to any confidential information or to
his/her employment, and Executive will not retain or take with him or her
any tangible materials or electronically stored data, containing or
pertaining to any confidential information that Executive may produce,
acquire or obtain access to during the course of his/her
employment.
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This
Section 9 shall survive the termination of this Agreement for any reason. In the
event the Executive breaches this Section 9, the Company shall have right to
seek remedies permissible under applicable law.
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10.
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NON-COMPETITION
AND NON-SOLICITATION
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In
consideration of the compensation provided to the Executive by the Company
hereunder, the adequacy of which is hereby acknowledged by the parties hereto,
the Executive agrees that during the term of the Employment and for a period of
two years following the termination of the Employment for whatever
reason:
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(a)
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the
Executive will not assume employment with or provide services as a
director for any Competitor,
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(b)
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unless
expressly consented to by the Company, the Executive will not seek
directly or indirectly, by the offer of alternative employment or other
inducement whatsoever, to solicit the services of any employee of the
Company employed as at or after the date of such termination, or in the
year preceding such
termination.
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The
provisions contained in Section 10 are considered reasonable by the Executive
and the Company. In the event that any such provisions should be found to be
void under applicable laws but would be valid if some part thereof was deleted
or the period or area of application reduced, such provisions shall apply with
such modification as may be necessary to make them valid and
effective.
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This
Section 10 shall survive the termination of this Agreement for any reason.
In the event the Executive breaches this Section 10, the Executive acknowledges
that there will be no adequate remedy at law, and the Company shall be entitled
to injunctive relief and/or a decree for specific performance, and such other
relief as may be proper (including monetary damages if appropriate). In any
event, the Company shall have right to seek all remedies permissible under
applicable law,
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11.
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WITHHOLDING
TAXES
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Notwithstanding
anything else herein to the contrary, the Company may withhold (or cause there
to be withheld, as the case may be) from any amounts otherwise due or payable
under or pursuant to this Agreement such national, provincial, local or any
other income, employment, or other taxes as may be required to be withheld
pursuant to any applicable law or regulation.
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12.
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ASSIGNMENT
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This
Agreement is personal in its nature and neither of the parties hereto shall,
without the consent of the other, assign or transfer this Agreement or any
rights or obligations hereunder; provided, however, that (i) the Company may
assign or transfer this Agreement or any rights or obligations hereunder to any
member of the Group without such consent, and (ii) in the event of a merger,
consolidation, or transfer or sale of all or substantially all of the assets of
the Company with or to any other individual(s) or entity, this Agreement shall,
subject to the provisions hereof, be binding upon and inure to the benefit of
such successor and such successor shall discharge and perform all the promises,
covenants, duties, and obligations of the Company hereunder.
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13.
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SEVERABILITY
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If any
provision of this Agreement or the application thereof is held invalid, the
invalidity shall not affect other provisions or applications of this Agreement
which can be given effect without the invalid provisions or applications and to
this end the provisions of this Agreement are declared to be
severable.
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14.
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ENTIRE
AGREEMENT
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This
Agreement constitutes the entire agreement and understanding, between the
Executive and the Company regarding the terms of the Employment and supersedes
all prior or contemporaneous oral or written agreements concerning such subject
matter. The Executive acknowledges that he has not entered into this Agreement
in reliance upon any representation, warranty or undertaking which is not set
forth in this Agreement. Any amendment to this Agreement must be in writing and
signed by the Executive and the Company.
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15.
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GOVERNING
LAW
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This
Agreement shall be governed by and construed in accordance with the PRC
laws.
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16.
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AMENDMENT
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This
Agreement may not be amended, modified or changed (in whole or in part), except
by a formal, definitive written agreement expressly referring to this Agreement,
which agreement is executed by both of the parties hereto.
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17.
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WAIVER
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Neither
the failure nor any delay on the part of a party to exercise any right, remedy,
power or privilege under this Agreement shall operate as a waiver thereof. Nor
shall any single or partial exercise of any right, remedy, power or privilege
preclude any other or further exercise of the same or of any right, remedy,
power or privilege, nor shall any waiver of any right, remedy, power or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrence. No waiver shall
be effective unless it is in writing and is signed by the party asserted to have
granted such waiver.
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18.
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NOTICES
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All
notices, requests, demands and other communications required or permitted under
this Agreement shall be in writing and shall be deemed to have been duly given
and made if (i) delivered by hand, (ii) otherwise delivered against receipt
therefore, (iii) sent by a recognized courier with next-day or second-day
delivery to the last known address of the other party; or (iv) sent by e-mail
with confirmation of receipt.
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19.
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COUNTERPARTS
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This
Agreement may be executed in counterparts, each of which shall be deemed an
original as against any party whose signature appears thereon, and all of which
together shall constitute one and the same instrument.
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20.
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NO
INTERPRETATION AGAINST DRAFTER
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Each
party recognizes that this Agreement is a legally binding contract and
acknowledges that such party has had the opportunity to consult with legal
counsel of choice. In any construction of the terms of this Agreement, the same
shall not be construed against either party on the basis of that party being the
drafter of such terms.
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In
WITNESS WHEREOF, this Agreement has been executed as of the date first written
above.
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For
and on behalf of
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By:
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CHINA DREDGING GROUP CO.,
LTD.
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Name:
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Title:
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Authorized Signature(s)
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Executive
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Signature:
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Name:
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