CONSULTING AGREEMENT
This consulting agreement (this "Agreement") is made the November 26, 2004 by and between China Energy and Carbon Black Holdings, Inc. (the "Company"), and Zhang Xxx Xxx (the "Consultant").
RECITALS
WHEREAS, the Company wishes to engage the Consultant to general corporate development, marketing and customers relations in Central, North and South China within the beginning phase of the Company’s corporate development;
WHEREAS, the Consultant is willing to provide his services to the Company provided for in the Agreement as set forth below;
AGREEMENT
NOW THEREFORE, in consideration of the premises and the respective covenants and agreements of the parties herein contained, the parties hereto agree as follows:
1. TERM
The term of this Agreement shall commence on the date hereof and end on December 31, 2004.
2. CONSULTING SERVICES
(a) Consulting Services. . Assist the Company to perform general corporate development, marketing and customers relations in Central, North and South China within the beginning phase of the Company’s corporate development. Also, the Consultant is responsible for liaise with relevant customers, distributors, government officers and regional government departments (“Consulting Services”). The Consultant shall be responsible for all the disbursements and out of pocket expenses incurred during the provision of the Consulting Services
(b) Compensation. In consideration of the consulting services set forth in paragraph 2 (a), and subject to the terms and conditions set forth herein the Company hereby agrees to issue to Consultant 160,000 shares of the Company's Common stock (the "Shares") up front and register such shares at the time of initial issuance, or immediately thereafter, on Form S-8 under the Securities Exchange Act of 1934, as amended ("Exchange Act”)
(c) Issuance. Issuance and delivery of the Shares shall be immediately after the Consultant completes the Consulting Services as stipulated in paragraph 2(a) to the satisfactory of the Company, at which time, the Company shall deliver to the Consultant: (i) the certificate or certificates evidencing the Shares to be issued to the Consultant and the respective dates, registered in the name of the Consultant; and (ii) evidence that the Shares have been registered on Form S-8 to be filed upon issuance of the Shares to the Consultant, registering for resale thereof.
3. CONFIDENTIAL INFORMATION
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In connection with the providing of Consulting Services, hereunder, the Consultant may come into contact with information concerning the Company which the Company deems confidential (the Confidential Information"). The Consultant understands and agrees that any Confidential Information disclosed pursuant to this Agreement is secret, proprietary and of great value to the Company, which value may be impaired if the secrecy of such information is not maintained. The Consultant further agrees that he will take necessary security measures to preserve and protect the
secrecy of such Confidential Information, and to hold such Confidential Information in strict confidence and not to disclose such Confidential Information, either directly or indirectly to any person or entity during the term of this agreement or any time following the expiration or termination hereof; provided, however, that the Consultant may disclose the Confidential Information to an assistant to whom disclosure is necessary for the providing of Consulting Services under this Agreement provided that such assistant enters into similar agreement to protect the Confidential Information.
4. REPRESENTATION AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Consultant that as of the date hereof:
(a) Authorization and Validity of Shares. The Shares have been duly authorized and are validly issued and outstanding, fully paid and non-assessable and free of any preemptive rights. The Shares are not subject to any lien, pledge, security interest or other encumbrance.
(b) Authorization of Agreement. The Company has taken all actions and has obtained all consents or approvals necessary to authorize it to enter into this Agreement.
(c) Registration. The Shares have been, or will be upon the filing of an S-8 Registration Statement, registered pursuant to the Securities Act.
5. INDEMNIFICATION
(a) The Company shall indemnify the Consultant from and against any and all expenses (including reasonable attorneys' fees), judgments, fines, claims, cause of action, liabilities and other amounts paid (whether in settlement or otherwise actually and reasonably incurred) by the Consultant in connection with such action, suit or proceeding if (i) the Consultant was made a party to any action, suit or proceeding by reason of the fact that the Consultant rendered advice or services to the Company pursuant to this Agreement, and (ii) the Consultant acted in good faith and in a manner reasonably believed by the Consultant to be in or not opposed to the interests of the Company, and with respect to any criminal action or proceeding, had no reasonable cause or believe his conduct was unlawful.
(b) The Consultant shall indemnify the Company from and against any and all expenses (including attorney's fees), judgments, fines, claims, causes of action, liabilities and other amounts paid (whether in settlement or otherwise actually and reasonably incurred) by the Company in connection with such action, suit or proceeding if (i) the Company was made a party to any action, suit or proceeding by reason of the fact that the Consultant rendered advice or services to the Company pursuant to this Agreement, and (ii) the Consultant did not act in good faith and in a manner reasonably believed by the Consultant to be in or not opposed to the interests of the Company, and with respect to any criminal action or proceeding, did not reasonably believe his conduct was lawful.
6. REPRESENTATION OF THE CONSULTANT
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The Consultant represents that he is a qualified expert in his field in terms of providing Consulting Services to the Company and his provision of the Consulting Services is legal.
7. INDEPENDENT CONTRACTOR STATUS
It is expressly understood and agreed that this is a consulting agreement only and does not constitute an employer-employee relationship. The parties further acknowledge that the Company's services hereunder are not exclusive, but that the Consultant shall be performing services and undertaking other responsibilities, for and with other entities or persons, which may directly or indirectly compete with the Company.
8. NOTICE
All notices provided by this Agreement shall be in writing and shall be given by facsimile transmission, overnight courier, by registered mail or by personal delivery, by one party to the other, addressed to such other party at the applicable address set forth below, or to such other address as may be given for such purpose by such other party by notice duly given hereunder. Notice shall be deemed properly given on the date of the delivery.
To Consultant:
Flat A, 8th Floor
Xx. 00 Xxxx Xxx Xxxx
Xxxxx Xxxxxx, Xxxx Xxxx
To the Company:
Flat A, 8th Floor
No. 65 Sing Woo Road
Happy Valley, Hong Kong
9. MISCELLANEOUS
(a) Waiver. Any term or provision of this Agreement may be waived at any time by the party entitled to the benefit thereof by a written instrument duly executed by such party.
(b) Entire Agreement. This Agreement contains the entire understanding between the parties hereto with respect to the transactions contemplated hereby, and may not be amended, modified, or altered except by an instrument in writing signed by the party against whom such amendment, modification, or alteration is sought to be enforced. This Agreement supercedes and replaces all other agreements between the parties with respect to any services to be performed by the Consultant of behalf of the Company.
(c) Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of New York, the United States of America, without regard to its conflict of laws rules and principles.
(d) Each party hereby agrees to solve any dispute through friendly discussions and arbitration in New York City pursuant to the rules of the American Arbitration Association with one arbitrator jointly selected by the parties. Arbitration shall be the exclusive and final remedy, the award of which shall be final and enforceable against the parties.
(e) Binding Effect. This Agreement shall bind and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and assigns.
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(f) Construction. The captions and headings contained herein are inserted for convenient reference only, are not a part hereof and the same shall not limit or construe the provisions to which they apply. Reference in this agreement to "paragraphs" is to the paragraphs in this Agreement, unless otherwise noted.
(g) Expenses. Each party shall pay and be responsible for the cost and expanses, including, without limitations, attorneys' fees, incurred by such party in connection with negotiation, preparation and execution of this Agreement and the transactions contemplated hereby.
(h) Assignment. No party hereto may assign any of its rights or delegate any of its obligations under this Agreement without the express written consent of the other party hereto.
(i) Counterparts. This Agreement may be executed simultaneously in two counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same agreement, binding upon both parties hereto, not withstanding that both parties are not signatories to the original or the same counterpart.
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IN WITNESS WHEREOF, the parties have caused this CONSULTING AGREEMENT to be duly executed as of the day and year first above written
CHINA CARBON BLACK AND HOLDINGS, INC.
By:
/s/ Guo Xxxx Xxxx
Chairman and Chief Executive officer
CONSULTANT
/s/ Zhang Xxx Xxx
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