EXHIBIT 10.3
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into this
29th day of August, 2004, between China Biopharmaceuticals Corp., a British
Virgin Islands corporation with its principal place of business located at
Nanjing City, Jiangsu Province, China, which will merge into China
Biopharmaceuticals Holdings, Inc., a Delaware corporation (the "Company"), and
An, Lu Fan, residing at Xxxxx 0000, Xxxxxxxx 00, Xxxxxxxx Xxxxxx; Xxxxxxx, Xxxxx
210013(the "Executive").
WHEREAS, the Company's business consists of the development and production
of bioengineered or small molecule pharmaceutical products and activities
incidental thereto (the "Business");
WHEREAS, the Company has expended considerable time, effort and resources
in the development of certain Confidential Information, as defined hereinbelow,
which must be maintained as confidential in order to ensure the success of the
Company's Business; and
WHEREAS, the Executive will have immediate access to such Confidential
Information immediately upon the Executive's execution of this Agreement;
NOW, THEREFORE, in consideration of the covenants and promises contained
herein, the compensation and benefits received by the Executive from the
Company, and the access given the Executive to the aforesaid confidential and
proprietary information, and for other good and valuable consideration, the
sufficiency of and receipt of which are hereby acknowledged, the Company and the
Executive agree as follows:
1. Employment Period. The Company offers to employ the Executive, and the
Executive agrees to be employed by Company, in accordance with the terms and
subject to the conditions of this Agreement commencing on the effective date of
this Agreement (the "Commencement Date") and terminating the fifth anniversary
of the Commencement Date (the "Scheduled Termination Date"), unless terminated
prior thereto in accordance with the provisions of paragraph 7 hereinbelow. The
Executive affirms that no obligation exists between the Executive and any other
entity which would prevent or impede the Executive's immediate and full
performance of every obligation of this Agreement.
2. Position and Duties. During the term of the Executive's employment
hereunder, the Executive will serve in the position, and assume duties and
responsibilities consistent with the position of President and Chief Operation
Officer unless and until otherwise instructed by the Company. The Executive
agrees to devote substantially all of his working time, skill, energy and best
business efforts during the term of his employment with the Company. The
Executive covenants and agrees that for so long as he is employed by the
Company, the Executive shall inform the Company of each and every business
opportunity related to the business of the Company of which the Executive
becomes aware, and that the Executive will not, directly or indirectly, exploit
any such opportunity for the Executive's own account, nor will the Executive
render any services to any other person or business, acquire any interest of any
type in any other business or engage in any activities that conflict with the
Company's best interests or which is in competition with the Company.
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3. Hours of Work. The Executive's normal days and hours of work shall
coincide with the Company's regular business hours. The nature of the
Executive's employment with the Company requires flexibility in the days and
hours that the Executive must work, and may necessitate that the Executive work
on other or additional days and hours. The Company reserves the right to require
the Executive, and the Executive agrees, to work during other or further days or
hours than the Company's normal business hours.
4. Location. The locus of the Executive's employment with Company shall be
the Company's office located at Xxxxx 000, Xx. 000, Xxxxx Xx. Xxxxxxx Xxxx,
Xxxxxxx Xxxxxxxx, Xxxxx 210009. The Company may, in its sole discretion, require
the Executive to travel to and reside in, on a temporary, indefinite or
permanent basis, in any other location throughout the world in which the Company
or any of its affiliates has offices.
5. Base Salary; Reimbursement of Expenses. (a) During the Executive's
continued full and satisfactory performance of his duties and responsibilities
hereunder, the Company shall pay or cause to pay, and the Executive agrees to
accept, during the first year (the "First Year") of the Executive's employment,
in consideration for the Executive's services, pro rata payments, as earned and
consistent with Company's then-existing payroll practices, of the annualized
salary of US$15,000.00, less all applicable taxes and other appropriate
deductions. Following the First Year, the Executive's base salary shall be
reviewed annually by the Board of Directors of the Company. The Company reserves
the right, in its sole discretion, and the Executive hereby acknowledges the
Company's right, to make no such payments or make reduced payments in connection
with any periods of unauthorized or unjustified absence from work or in the
event that the Executive is unavailable or unable to perform the Executive's
duties for the Company without adequate justification, as determined by the
Company in its sole discretion.
(b) The Company shall promptly pay or reimburse the Executive for all
reasonable expenses actually and properly (in accordance with the Company's
policy) incurred or paid by him, in an amount not to exceed US$50,000, in
connection with the performance of his services under this Agreement (including,
without limitation, travel expenses) upon presentation of expense statements or
vouchers or such other supporting documentation in such form and containing such
information as the Company may from time to time require.
6. Stock Options. During the Executive's continued full and satisfactory
performance of his duties and responsibilities hereunder, and subject to the
provisions in paragraph 7 hereinbelow, the Company shall award to him, in four
quarterly installments on each three month anniversary after the Commencement
Date, options to purchase shares of common stock of the Company pursuant to, and
in accordance with the terms and conditions of, the China Biopharmaceuticals
Holdings, Inc. 2004 Stock Option Plan expected to be adopted by the Company's
Board of Directors on August 20, 2004 (the "Stock Option Plan") and any stock
option agreement entered into by the Company and the Executive. The exercise
price for each option granted to the Executive shall be US$1.5. Each quarterly
grant shall consist of the quantity of shares of common stock of the Company
whose aggregate market price at close of trading on the date of grant minus
their aggregate exercise price equals $7,500.00. The Executive's right to
receive any quarterly grant of stock options is subject to and conditional upon
his status as a full-time employee of the Company at the time of such grant, and
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the Executive shall not be entitled to any portion of any quarterly grant that
has not already been awarded to him prior to his last date of full-time
employment with the Company.
7. Termination.
a. Death Or Resignation. If the Executive dies or resigns during the term
of this Agreement, this Agreement shall automatically terminate on the date of
the Executive's death or resignation and, following the date of the Executive's
death or resignation, the Company shall have no further obligations or liability
to the Executive or his heirs, administrators or executors with respect to
compensation and benefits thereafter, except for the obligation to pay the
Executive any earned but unpaid base salary through the Executive's date of
death or resignation and to pay the Executive for any unused accrued and
unforfeited vacation. The Company shall deduct, from all payments made
hereunder, all applicable taxes, including income tax, FICA and FUTA, and other
appropriate deductions.
b. Disability. At any time during the term of this Agreement, the Company
may terminate this Agreement and the Executive's employment with the Company
because of the Executive's "Disability," by written notice to the Executive. For
purposes of this Agreement, "Disability" shall mean, if at the end of any
calendar month during the term of this Agreement, the Executive, as a result of
mental or physical illness or injury, is or has been unable to perform his
duties under this Agreement, without or without reasonable accommodation, for
(i) the four (4) preceding consecutive calendar months, or (ii) any 180 days in
the previous twelve (12) months. If this Agreement is terminated because of the
Executive's "Disability," the Company shall have no further obligations or
liability to the Executive or his heirs, administrators or Executors with
respect to compensation and benefits thereafter, except for the obligation to
pay the Executive any earned but unpaid base salary through the Executive's last
date of employment with the Company and to pay the Executive for any unused
accrued and unforfeited vacation. The Company shall deduct, from all payments
made hereunder, all applicable taxes, including income tax, FICA and FUTA, and
other appropriate deductions.
c. "Cause." At any time during the term of this Agreement, the Company may
terminate this Agreement and the Executive's employment with the Company, at any
time, for "Company Cause." For purposes of this Agreement, "Company Cause" shall
mean: (i) the good faith determination by the Company's Board of Directors that
there has been continued neglect by the Executive of his duties hereunder, or
(ii) willful misconduct on the Executive's part in connection with the
performance of his duties hereunder, provided however, that the Executive shall
have been given one (1) written notice of such determination by the Company's
Board of Directors of continued neglect or willful misconduct and thereafter the
Executive shall not have cured such neglect or willful misconduct to the
satisfaction of the Company's Board of Directors within fifteen (15) days of the
Executive's receipt of such written notice, (iii) the Executive is convicted of
or pleads guilty or no contest to a felony or other conduct involving moral
turpitude. If this Agreement is terminated for "Company Cause," following the
Executive's last date of employment with the Company, the Company shall have no
further obligations or liability to the Executive or his heirs, administrators
or Executors with respect to compensation and benefits thereafter, except for
the obligation to pay the Executive any earned but unpaid base salary through
the Executive's last date of employment with the Company and to pay the
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Executive for any unused accrued and unforfeited vacation. The Company shall
deduct, from all payments made hereunder, all applicable taxes, including income
tax, FICA and FUTA, and other appropriate deductions.
d. Termination By The Chief Executive Officer. At any time during the term
of this Agreement, the Chief Executive Officer of the Company, in his sole
discretion, may terminate this Agreement and the Executive's employment with the
Company without "Company Cause" by delivering to the Executive written notice.
In the event that this Agreement and the Executive's employment with the Company
is terminated pursuant to this subparagraph 7(d), following the Executive's last
date of employment with the Company, the Company shall have no further
obligations or liability to the Executive or his heirs, administrators or
executors with respect to compensation and benefits, except for the obligation
to pay the Executive any earned but unpaid base salary through the Executive's
last date of employment, the obligation to pay the Executive for any unused
accrued and unforfeited vacation, and the obligation to continue to pay the
Executive his base salary in accordance with paragraph 5(a) hereinabove through
the Scheduled Termination Date. The Company shall deduct, from all payments made
hereunder, all applicable taxes, including income tax, FICA and FUTA, and other
appropriate deductions.
8. Confidential Information.
a. The Executive expressly acknowledges that, in the performance of his
duties and responsibilities with the Company, he will be exposed to the trade
secrets, business and/or financial secrets and confidential and proprietary
information of the Company, its affiliates and/or its clients or customers
("Confidential Information"). The term "Confidential Information" means
information or material that has actual or potential commercial value to the
Company, its affiliates and/or its clients or customers and is not generally
known to and is not readily ascertainable by proper means to persons outside the
Company, its affiliates and/or its clients or customers, and includes, without
limitation, and includes, without limitation, the following, whether or not
expressed in a document or medium, regardless of the form in which it is
communicated, whether or not such information is on the Company's forms, memos,
computer disc or tape, or otherwise, whether or not such information is in
written or verbal form, and whether or not marked "trade secret" or
"confidential" or any similar legend: (i) sales information, (ii) operations
information, (iii) financial information, (iv) administrative information, (v)
research information, (vi) customer information, (vii) supplier information, and
(viii) any other information concerning the Company, its business, its
properties or its affairs that the Company deems to be confidential or that is
confidential according to industry practices.
b. Except as authorized in writing by the Company's Chief Executive
Officer, during the term of this Agreement and thereafter until such time as any
such Confidential Information become generally known to and readily
ascertainable by proper means to persons outside the Company, its affiliates
and/or its clients or customers, the Executive agrees to keep strictly
confidential and not use or disclose, cause to be used or disclosed, or permit
to be used or disclosed, to any person or entity and/or for his personal benefit
or the benefit to any other person or entity, any Confidential Information.
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c. The Executive agrees that upon termination of his employment with the
Company for any reason, he will promptly return to the Company all Confidential
Information within his possession or within his power to control, including,
without limitation all copies of such Confidential Information, all abstracts of
such Confidential Information and any other information containing such
Confidential Information in whole or in part.
d. The Executive affirms that he does not possess and will not rely upon
the protected trade secrets or confidential or proprietary information of the
Executive's prior employer(s) in providing services to the Company.
9. Ownership and Assignment of Inventions.
a. The Executive acknowledges that, in connection with his duties and
responsibilities relating to his employment with the Company, the Executive
and/or other employees of the Company working with the Executive, without the
Executive or under the Executive's supervision, may create, conceive of, make,
prepare, work on or contribute to the creation of, or may be asked by the
Company and/or its affiliates or customers to create, conceive of, make,
prepare, work on or contribute to the creation of, without limitation, lists,
business diaries, business address books, documentation, ideas, concepts,
inventions, designs, works of authorship, computer programs, audio/visual works,
developments, proposals, works for hire or other materials ("Inventions"). To
the extent that any such Inventions relate to any actual or reasonably
anticipated business of the Company or any of its affiliates or customers, or
falls within, is suggested by or results from any tasks assigned to the
Executive for or on behalf of the Company or any of its affiliates or customers,
the Executive expressly acknowledges that all of his activities and efforts
relating to any Inventions, whether or not performed during the Executive's or
the Company's regular business hours, are within the scope of the Executive's
employment with the Company and that the Company owns all right, title and
interest in and to all Inventions, including, to the extent that they exist, all
intellectual property rights thereto, including, without limitation, copyrights,
patents and trademarks in and to all Inventions. The Executive also acknowledges
and agrees that the Company owns and is entitled to sole ownership of all rights
and proceeds to all Inventions.
b. The Executive expressly acknowledges and agrees to assign to the
Company, and hereby assigns to the Company, all of the Executive's right, title
and interest in and to all Inventions, including, to the extent they exist, all
intellectual property rights thereto, including, without limitation, copyrights,
patents and trademarks in and to all Inventions.
c. In connection with all Inventions, the Executive agrees to disclose any
Invention promptly to the Company and to no other person or entity. The
Executive further agrees to execute promptly, at the Company's request, specific
written assignments of the Executive's right, title and interest in any
Inventions, and do anything else reasonably necessary to enable the Company to
secure or obtain a copyright, patent, trademark or other form of protection in
or for any Invention in the United States or other countries. The Executive
further agrees that the Company is not required to designate the Executive as an
author of or contributor to any Invention or to secure the Executive's
permission to change or otherwise alter any Invention.
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d. The Executive acknowledges that all rights, waivers, releases and/or
assignments granted herein and made by the Executive are freely assignable by
the Company and are made for the benefit of the Company and its affiliates,
subsidiaries, licensees, successors and assigns.
e. The Executive agrees to waive, and hereby does waive, for the benefit of
all persons, any and all right, title and interest in the nature of "moral
rights" or "droit moral" granted to the Executive in any country in the world.
10. Non-Competition And Non-Solicitation. Because of the nature of the
Company's Business, and because, as a result of their employment with the
Company, the Executive and other present and former employees of the Company
have been and will be exposed to Confidential Information, the Executive
acknowledges that the Company would sustain grievous harm in the event that he
or the Company's other present and former employees were to disclose
Confidential Information, engage in business activities that compete with the
Business, appropriate or divert business or customers of the Company and/or
induce employees or consultants of the Company to leave the employment of the
Company, all of which would violate recognized employee obligations. The
Executive acknowledges that the Company has a legitimate business interest in
protecting itself from the aforementioned harm and in the protection and
maintenance of the Confidential Information and the Company's customer
relationships. Therefore, the Executive hereby agrees and covenants to be bound
by the non-competition and non-solicitation restrictions set forth hereinbelow,
which restrictions the Executive agrees and acknowledges are reasonable and
necessary and do not impose undue hardship or burdens on the Executive.
a. The Executive agrees that, during his employment with the Company for a
period of three (3) years following the termination of his employment with the
Company, he shall not directly or indirectly own, manage, operate, control, be
employed by, consult for, be a shareholder of, be an officer of, participate in,
contract with or be connected in any capacity or any manner with any business
that directly or indirectly (whether through related companies or otherwise)
competes with the Company anywhere in the United States and the People's
Republic of China where the Company is engaged in the Business, provided
however, that the Executive shall not be prevented from owning an interest in a
publicly traded company so long as the fair market value of such interest at the
date of acquisition is less than Xxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars
(US$100,000.00) and none of the Executive or his affiliates will directly or
indirectly (whether through related companies or otherwise) compete with the
Company anywhere in the United States and the People's Republic of China where
the Company is engaged in the Business.
b. The Executive agrees that during the period of his employment with the
Company and for a period of three (3) years following the termination of his
employment with the Company, for any reason he will not directly or indirectly
supervise, manage, hire, cause to be hired or otherwise induce any employee of
the Company to leave the employment of the Company or any independent contractor
of the Company to terminate its relationship with the Company, for any reason.
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c. The Executive agrees that during the period of his employment with the
Company and for a period of three (3) years following the termination of his
employment with the Company, he will not directly or indirectly appropriate,
divert or assist another to appropriate or divert any actual or potential
business or customer away from the Company, or attempt to do any of the
foregoing or otherwise induce or attempt to induce any customer of the Company,
to terminate or adversely modify its relationship with the Company or any
potential customer to not enter into a relationship with the Company.
d. If any of the restrictive covenants set forth in paragraphs 10(a), (b)
and (c) of this Agreement is held to be invalid, illegal or unenforceable (in
whole or in part), such restrictive covenant shall be deemed modified to the
extent, but only to the extent, of such invalidity, illegality or
unenforceability, and a court of competent jurisdiction shall have the power to
modify, any such restrictive covenant to the extent necessary to render such
provision enforceable, and the remaining restrictive covenant shall not be
affected thereby.
e. In the event of a violation of any of the restrictive covenants set
forth in paragraphs 10(a), (b) and (c) of this Agreement, if the Executive is
prevented by a court or arbitrator from committing any further violation,
whether by a temporary restraining order, injunction or otherwise, the time
periods set forth in paragraphs 10(a), (b) and (c) of this Agreement shall be
computed by commencing the periods on the date of the applicable court or
arbitrators' order and continuing them from that date for the full period
provided.
f. The Executive shall have the right to request a waiver of all or part of
the restrictive covenants contained in paragraphs 10(a), (b) and (c) of this
Agreement by providing the Company with a written request for such a waiver that
contains all relevant details. The Company may, in its sole discretion, waive
all or part of the restrictive covenants contained in paragraphs 10(a), (b) and
(c) of this Agreement on such terms and conditions, and to such extent, as it,
in its sole discretion, deems appropriate. Such waiver must be in writing.
g. The parties acknowledge that this Agreement would not have been entered
into, that the benefits described in paragraphs 5 and 6 would not have been
promised to the Executive by the Company, in the absence of the Executive's
covenants and promises set forth in paragraphs 10(a), (b) and (c) of this
Agreement.
11. Notwithstanding the termination of this Agreement and of the
Executive's employment with the Company, paragraphs 8, 9 and 10 of this
Agreement shall continue in full force and effect in accordance with their
terms.
12. Dispute Resolution. The Executive and the Company agree that any
dispute or claim, whether based on contract, tort, discrimination, retaliation,
or otherwise, relating to, arising from, or connected in any manner with this
Agreement or with the Executive's employment with Company, if not amicably
settled by the parties, shall be resolved exclusively through final and binding
arbitration under the auspices of the Hong Kong Chamber of Commerce ("HKCC") in
accordance with the commercial arbitration rules and supplementary procedures
for international commercial arbitration of the HKCC. The arbitration shall be
held in Hong Kong. There shall be three arbitrators: one arbitrator shall be
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chosen by each party to the dispute and those two arbitrators shall choose the
third arbitrator. Each party shall cooperate with the other in making full
disclosure of and providing complete access to all information and documents
requested by the other party in connection with the arbitration proceedings.
Arbitration shall be the sole, binding, exclusive and final remedy for resolving
any dispute between the parties; provided, however, that either party may apply
to any court of competent jurisdiction in the State of New York for enforcement
of any award granted by the arbitrators. The arbitrators shall have jurisdiction
to determine any claim, including the arbitrability of any claim, submitted to
them. The arbitrators may grant any relief authorized by law for any properly
established claim. The interpretation and enforceability of this paragraph of
this Agreement shall be governed and construed in accordance with the United
States Federal Arbitration Act, 9. U.S.C. ss.1, et seq. More specifically, the
parties agree to submit to binding arbitration any claims for unpaid wages or
benefits, or for alleged discrimination, harassment, or retaliation, arising
under Title VII of the Civil Rights Act of 1964, the Equal Pay Act, the National
Labor Relations Act, the Age Discrimination in Employment Act, the Americans
With Disabilities Act, the Executive Retirement Income Security Act, the Civil
Rights of 1991, the Family and Medical Leave Act, the Fair Labor Standards Act,
Sections 1981 through 1988 of Title 42 of the United States Code, COBRA, and any
other federal, state, or local law, regulation, or ordinance, and any common law
claims, claims for breach of contract, or claims for declaratory relief. The
Executive acknowledges that the purpose and effect of this paragraph is solely
to elect private arbitration in lieu of any judicial proceeding he might
otherwise have available to him in the event of an employment-related dispute
between him and the Company. Therefore, the Executive hereby waives his right to
have any such employment-related dispute heard by a court or jury, as the case
may be, and agrees that his exclusive procedure to redress any
employment-related claims will be arbitration.
13. Miscellaneous.
a. Telephones, stationery, postage, e-mail, the internet and other
resources made available to the Executive by the Company, are solely for the
furtherance of the Company's business.
b. All issues concerning, relating to or arising out of this Agreement and
from the Executive's employment by the Company, including, without limitation,
the construction and interpretation of this Agreement, shall be governed by and
construed in accordance with the internal laws of the State of New York, without
giving effect to that State's principles of conflicts of law.
c. The Executive and the Company agree that any provision of this Agreement
deemed unenforceable or invalid may be reformed to permit enforcement of the
objectionable provision to the fullest permissible extent. Any provision of this
Agreement deemed unenforceable after modification shall be deemed stricken from
this Agreement, with the remainder of the Agreement being given its full force
and effect.
d. The Company shall be entitled to equitable relief, including injunctive
relief and specific performance as against the Executive, for the Executive's
threatened or actual breach of paragraphs 8, 9 or 10 of this Agreement, as money
damages for a breach thereof would be incapable of precise estimation,
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uncertain, and an insufficient remedy for an actual or threatened breach of
paragraphs 8, 9 or 10 of this Agreement. The Executive and the Company agree
that any pursuit of equitable relief in respect of paragraphs 8, 9 or 10 of this
Agreement shall have no effect whatsoever regarding the continued viability and
enforceability of paragraph 11 of this Agreement.
e. Any waiver or inaction by the Company for any breach of this Agreement
shall not be deemed a waiver of any subsequent breach of this Agreement.
f. The Executive and the Company independently have made all inquiries
regarding the qualifications and business affairs of the other which either
party deems necessary. The Executive affirms that he fully understands this
Agreement's meaning and legally binding effect. Each party has participated
fully and equally in the negotiation and drafting of this Agreement. Each party
assumes the risk of any misrepresentation or mistaken understanding or belief
relied upon by her or it in entering into this Agreement.
g. The Company and the Executive agree that the Executive's obligations to
the Company during the Executive's employment with the Company, as well as any
other obligation of the Executive under this Agreement, may be assigned to any
successor in interest to the Company or any division or affiliate of the Company
in its sole discretion and without additional consideration or prior notice to
the Executive, but that nothing requires the Company to do so. The Executive's
obligations under this Agreement are personal in nature and may not be assigned
by the Executive to any other person or entity.
h. The Company and the Executive acknowledge and agree that future
alterations to the Executive's work hours, working title, management or
supervisory responsibilities, number of subordinate Executives, sales or
promotional budgets, reporting relationships within the Company or with
businesses affiliated with the Company, management responsibilities or duties,
or similar changes or alterations may occur periodically during the Executive's
employment with the Company. The Company and the Executive agree that the
Company, in its sole discretion, may implement such alterations or adjustments
for any or no reason and that any such action shall not constitute a breach of
this Agreement so long as the Company continues to perform its remaining
obligations as provided by this Agreement.
i. This instrument constitutes the entire Agreement between the parties
regarding its subject matter. When signed by all parties, this Agreement
supersedes and nullifies all prior or contemporaneous conversations,
negotiations, or agreements, oral and written, regarding the subject matter of
this Agreement. In any future construction of this Agreement, this Agreement
should be given its plain meaning. This Agreement may only be amended only by a
writing signed by the Company and the Executive.
j. This Agreement may be executed in counterparts, a counterpart
transmitted via facsimile, and all executed counterparts, when taken together,
shall constitute sufficient proof of the parties' entry into this Agreement. The
parties agree to execute any further or future documents which may be necessary
to allow the full performance of this Agreement. This Agreement contains
headings for ease of reference. The headings have no independent meaning.
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THE EXECUTIVE STATES THAT HE HAS FREELY AND VOLUNTARILY ENTERED INTO THIS
AGREEMENT AND THAT HE HAS READ AND UNDERSTOOD EACH AND EVERY PROVISION THEREOF.
THIS AGREEMENT IS EFFECTIVE UPON THE EXECUTION OF THIS AGREEMENT BY BOTH
PARTIES.
UNDERSTOOD, AGREED, AND ACCEPTED:
An, Lu Fan CHINA BIOPHARMACEUTICALS
HOLDINGS, INC.
Name: /S/ An, Lu Fan By: /s/ Mao, Peng
------------------- --------------------------
Name: Mao, Peng
Title: CEO
Date: August 29th, 2004 Date: August 29th, 2004
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