INDEPENDENT DIRECTOR’S CONTRACT
Exhibit
10.1
THIS
AGREEMENT (the “Agreement”)
is
made as of June 29, 2007 and is by and between Puda Coal, Inc. a Florida
corporation (hereinafter referred to as the “Company”),
and
Jianfei Ni (the “Director”).
BACKGROUND
The
Company desires to retain the Director for the duties of independent director
and the Director desires to be retained for such position and to perform
the
duties required of such position in accordance with the terms and conditions
of
this Agreement.
AGREEMENT
In
consideration for the above recited promises and the mutual promises contained
herein, the adequacy and sufficiency of which are hereby acknowledged, the
Company and the Director hereby agree as follows:
1. DUTIES.
The
Company hereby requires that the Director be available to perform such duties
(i) as may be determined and assigned by the Board of Directors of the
Company, and (ii) that are specified in the Company’s Articles of
Incorporations and Bylaws to be performed by directors. The Director agrees
to
devote as much time as is necessary to perform completely the duties as the
Director of the Company as described in the preceding sentence.
2. TERM.
Except
in the case of early termination, as hereinafter specifically provided, the
term
of this Agreement shall commence as of July 1, 2007 and shall continue for
as
long as the Director serves as a director of the Company.
3. COMPENSATION.
For all
services to be rendered by the Director in any capacity hereunder, the Company
agrees to pay the Director warrants (the “Warrants”)
to
purchase 10,000 shares of common stock of the Company per year. The term
of the
Warrants is five years, and the exercise price is $2.5 per share. Warrants
to
purchase 5,000 shares are payable in advance as an initial fee. The initial
fee
is considered earned when paid and is nonrefundable. The initial payment
for the
services of the Director for services rendered is due upon execution of this
Agreement; thereafter, payment of Warrants to purchase 5,000 shares shall
be due
on or before the first date of
each
six succeeding months. Such fee may be adjusted from time to time as agreed
by
the parties. The Director’s attendance at any meetings outside of China area
will be compensated at a mutually agreed upon rate.
4. EXPENSES.
In
addition to the compensation provided in paragraph 3 hereof, the Company
will
reimburse the Director for business related travel, meal and other miscellaneous
expenses incurred in the performance of the Director’s duties for the Company;
provided, however, that such expenses shall be approved by the Company in
writing prior to the Director incurring such expenses. Such payments shall
be
made by the Company upon submission by the Director of a signed statement
itemizing the expenses incurred. Such statement shall be accompanied by
sufficient documentary matter to support the expenditures.
5. CONFIDENTIALITY
AND XXXXXXX XXXXXXX.
The
Company and the Director each acknowledge that, in order for the intents
and
purposes of this Agreement to be accomplished, the Director shall necessarily
be
obtaining access to certain confidential or non-public information concerning
the Company and its affairs, including, but not limited to business methods,
information systems, financial data and strategic plans which are unique
assets
of the Company (“Confidential
Information”).
The
Director covenants not to, either directly or indirectly, in any manner,
utilize
or disclose to any person, firm, corporation, association or other entity
any
Confidential Information or engage in any illegal inside trading
activities.
6. NOTICE
OF MATERIAL CHANGE IN FINANCIAL CONDITION OF THE COMPANY.
The
Company shall endeavor to notify the Director in writing, at the earliest
practicable time, of any material adverse change in the financial condition
of
the Company.
7. TERMINATION.
With or
without cause, the Company and the Director may each terminate this Agreement
at
any time upon ten (10) days written notice, and the Company shall be obligated
to pay to the Director the compensation and expenses due up to the date of
the
termination and incurred in accordance with this Agreement. If termination
occurs prior to the last date of any succeeding six months after the first
six
months of this agreement, the Company shall be entitled to receive, within
thirty (30) days after written request by the Company, a prorated refund
of the
portion of the fee that relates to the period after the termination date.
Such
written request must be submitted within ninety (90) days of the termination
date. Nothing contained herein or omitted herefrom shall prevent the Director(s)
of the Company from removing the Director with immediate effect at any time
for
any reason.
8. INDEMNIFICATION.
The
Company shall indemnify, defend and hold harmless the Director, to the full
extent allowed by the law of the State of Florida, and as provided by, or
granted pursuant to, any charter provision both as to action in the Director’s
official capacity and as to action in another capacity while holding such
office, except for matters arising out of the Director’s gross negligence or
willful misconduct.
9. EFFECT
OF WAIVER.
The
waiver by either party of the breach of any provision of this Agreement shall
not operate as or be construed as a waiver of any subsequent breach
thereof.
10. NOTICE.
Any and
all notices referred to herein shall be sufficient if furnished in writing
and
delivered in person or mailed at the following addresses or facsimiled to
the
following number:
To
the
Company:
Attention:
Xxxxxx Xxxx
Address:
000 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxxxx, The People’s Republic
of China
Facsimile: 01186-351-703-4404
To
the
Director:
Jianfei
Ni
Address:
000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxx, Xxxxx
Facsimile:
01186-351-734-6642
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12. GOVERNING
LAW AND DISPUTE RESOLUTION.
This
Agreement shall be interpreted in accordance with, and the rights of the
parties
hereto shall be determined by, the laws of China without reference to its
conflicts of laws principles. Any dispute arising from or in connection with
this contract shall be submitted to China International Economic and Trade
Arbitration Commission (“CIETAC”)
in
Beijing for arbitration, which shall be conducted in accordance with CIETAC’s
arbitration rules in effect at the time of applying for arbitration. The
arbitral award is final and biding upon both parties. The parties agree that:
(a) The venue of arbitration is Beijing. The hearing of arbitration may be
conducted in Beijing or, to the extent permitted by CIETAC’s arbitration rules,
any other place as agreed on by the parties as the most convenient place;
(b)
The language to be used during the arbitration proceedings should be Mandarin
Chinese; (c) A one-arbitrator tribunal will be appointed jointly by both
parties
and the arbitration should follow the ordinary proceeding. In case the parties
fail to jointly appoint the arbitrator, the arbitrator should be
appointed by the Chairman of CIETAC upon the joint authorization of the parties.
The parties may select arbitrators from the panel of arbitrators provided
by
CIETAC, and to the extent permitted by CIETAC’s arbitration rules, from outside
of the panel.
13. ASSIGNMENT.
The
rights and benefits of the Company under this Agreement shall be transferable,
and all the covenants and agreements hereunder shall inure to the benefit
of,
and be enforceable by or against, its successors and assigns. The duties
and
obligations of the Director under this Agreement are personal and therefore
the
Director may not assign any right or duty under this Agreement without the
prior
written consent of the Company.
14. MISCELLANEOUS.
(a) If
any provision of this Agreement shall be declared invalid or illegal, for
any
reason whatsoever, then, notwithstanding such invalidity or illegality, the
remaining terms and provisions of the within Agreement shall remain in full
force and effect in the same manner as if the invalid or illegal provision
had
not been contained herein; (b) This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, and their respective heirs,
executors, administrators, successors and assigns.
15. ARTICLE
HEADINGS.
The
article headings contained in this Agreement are for reference purposes only
and
shall not affect in any way the meaning or interpretation of this
Agreement.
16. COUNTERPARTS.
This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one instrument.
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IN
WITNESS WHEREOF, the parties hereto have caused this independent director’s
contract to be duly executed and signed as of the day and year first above
written.
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a
Florida corporation
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| By: | /s/ Xxxx Xxxx | |
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Xxxx Xxxx, Chief Executive Officer |
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| INDEPENDENT DIRECTOR | ||
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| By: |
/s/
Jianfei Ni
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Jianfei
Ni
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