Consulting Agreement
Exhibit 10.1
This
consulting agreement (the “Agreement”), entered
into on February 18, 2010 and effective immediately, Worldwide Energy and
Manufacturing USA, Inc. a Colorado corporation (together with any successor
thereto, the “Company”), and Xxxxxx
XxXxxxxx, an independent provider of services (the “Contractor”).
RECITALS
A. The
Company desires to assure itself of the services of the Contractor, as an
independent contractor, by engaging the Contractor to perform services under the
terms hereof.
B. The
Contractor desires to provide services to the Company, as an independent
contractor, on the terms herein provided.
C. The
Company and Contractor have agreed that this Agreement shall replace in the
entirety any and all prior written and verbal contractual agreements between the
Company and the Contractor.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and of the respective covenants and
agreements set forth below the parties hereto agree as follows:
1. Certain
Definitions.
(a) “Stock Award” shall
have the meaning set forth in Section 3.
(b) “Board” shall mean the
Board of Directors of the Company.
(c) “Company” shall,
except as otherwise provided in Section 5(b), have the meaning set forth in the
preamble hereto.
(d) “Contractor” shall
have the meaning set forth in the preamble hereto.
(e) “Effective Date” shall
mean February 18, 2010
(f) “Term” shall have the
meaning set forth in Section 2(b).
2. Consulting.
(a) In
General. The Company shall engage the Contractor and the
Contractor shall perform services on behalf of the Company upon the other terms
and conditions herein provided.
(b) Term of
Agreement. The term under this Agreement (the “Term”) shall be for
the period beginning on the Effective Date and ending on February 18, 2011, with
provisions for renewal. Either party can cancel this agreement with 45 days
written notice.
(c) Position and
Duties. During the Term, the Contractor shall provide services
to the Company as Chief Financial Officer. The Contractor will report
directly to the President but will maintain “dotted line” relationship to the
CEO and Auditing Committee; and agrees to observe and comply with the Company’s
rules and policies as adopted by the Company from time to time.
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3. Compensation
and Related Matters.
(a) Cash. The
Contractor will receive cash consideration of $54,000/year for services provided
to be paid monthly, on the last business day of the month.
(b) Stock
Awards. The Contractor will also be compensated with WEMU
common restricted shares valued $50,000 annually. This stock will be
issued twice per year ($25,000 worth of shares) corresponding to your 6-month
anniversaries (August 18, 2010 and February 18, 2011). The number of
shares will be calculated by using the average closing price of WEMU shares for
the five business days preceding your 6-month anniversary
date. Actual issuance will occur within 5 business days of your
anniversary dates.
(c) Expenses. Company
agrees to pay all incidental costs and expenses associated with service provided
by Consultant. Such expenses are separate from cash compensation as
set out above, and include, but are not limited to, such incidental costs and
expenses as traveling, lodging, telephone/cell phone charges and other
reasonable expenses.
4. Duties and Responsibilities
(including but not limited to)
(a) Responsibility
for directing and managing the accounting departments, both in the US and in
China,
(b) Financial
reporting mechanisms as required by SEC, or our external auditors ,and to
satisfy internal requests made by management or the BOD,
(c) Internal
Monthly financial reporting tools,
(d) Quarterly
and Annual consolidations,
(e) Investor
Relations as it pertains to our IR firm, earnings calls and the
like,
(f) Assist
with the implementation of internal controls to comply with all required aspects
of SOX 404,
(g) Assist in
any duties required for listing on AMEX,
(h) Other
financial analysis required for acquisitions, investments and the
like.
5. Restrictive
Covenants.
(a) Confidentiality. The
Contractor agrees that he will not, during the Term or thereafter, divulge to
anyone (other than the Company or any persons designated by the Company) any
knowledge or information of any type whatsoever of a confidential nature
relating to the business of the Company, including, without limitation, all
types of trade secrets, business strategies, marketing, sales and distribution
plans. The Contractor further agrees that he will not disclose,
publish or make use of any such knowledge or information of a confidential
nature (other than in the performance of the Contractor’s duties hereunder)
without the prior written consent of the Company. This provision does
not apply to information which becomes available publicly without the fault of
the Contractor or information which the Contractor is required to disclose in
legal proceedings, provided the Contractor gives advance notice to the Board and
an opportunity to for the Company to resist such disclosure.
(b) Interpretation. In
the event the terms of this Section 5 shall be determined by any court of
competent jurisdiction to be unenforceable by reason of its extending for too
great a period of time or over too great a geographical area or by reason of its
being too extensive in any other respect, it will be interpreted to extend only
over the maximum period of time for which it may be enforceable, over the
maximum geographical area as to which it may be enforceable, or to the maximum
extent in all other respects as to which it may be enforceable, all as
determined by such court in such action. As used in this Section 5,
the term “Company” shall
include the Company, its parent, related entities, and any of its direct or
indirect subsidiaries or affiliates.
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6. Representations
and Warranties of Contractor. The Contractor represents and
warrants that the Contractor is not a party to any other Consulting agreement,
noncompetition agreement or other agreement which restriction could interfere
with the Contractor’s Consulting with the Company or the Company’s rights and
the Contractor’s obligations hereunder and that the Contractor’s acceptance of
Consulting with the Company and the performance of the Contractor’s duties
hereunder will not breach the provisions of any contract, agreement or
understanding to which the Contractor is party or any duty owed by the
Contractor to any other person or entity.
7. Information
of Others. The Contractor agrees that Contractor will not,
during his Consulting or service with the Company, use or disclose any
confidential or proprietary information or trade secrets of any former or
concurrent engager or other person or entity and that Contractor will not bring
onto the premises of the Company any unpublished document or other confidential
or proprietary information belonging to any such engager, person or entity
unless consented to in writing by such engager, person or entity.
8. Injunctive
Relief. The Contractor recognizes and acknowledges that a
breach of the covenants contained in Section 5 will cause irreparable damage to
Company and its goodwill, the exact amount of which will be difficult or
impossible to ascertain, and that the remedies at law for any such breach will
be inadequate. Accordingly, the Contractor agrees that in the event
of a breach of any of the covenants contained in Section 5, in addition to any
other remedy which may be available at law or in equity, the Company will be
entitled to specific performance and injunctive relief.
9. Governing
Law. This Agreement shall be governed, construed, interpreted
and enforced in accordance with the substantive laws of the State of California,
without reference to the principles of conflicts of law of the State of
California or any other jurisdiction, and where applicable, the laws of the
United States. Venue is established in California and both parties hereto
irrevocable submit themselves to venue therein.
10. Dispute
Resolution. Any controversy or claim
arising out of or relating to this Agreement shall be resolved by arbitration
before a panel of one arbitrator in accordance with the Commercial Arbitration
Rules of the American Arbitration Association (“AAA”) then pertaining, except
where those rules conflict with this provision, in which case this provision
controls. Any court with jurisdiction shall enforce this clause and
enter judgment on any award. The arbitrator shall be selected within
twenty business days from commencement of the arbitration from the AAA’s
National Roster of Arbitrators pursuant to agreement or through selection
procedures administered by the AAA. Within 45 days of initiation of
arbitration, the parties shall reach agreement upon and thereafter follow
procedures, including limits on discovery, assuring that the arbitration will be
concluded and the award rendered within no more than eight months from selection
of the arbitrator or, failing agreement, procedures meeting such time limits
will be designed by the AAA and adhered to by the Parties. The
arbitration shall be held in California and the arbitrators shall apply the
substantive law of California, except that the interpretation and enforcement of
this arbitration provision shall be governed by the Federal Arbitration
Act. Prior to commencement of arbitration, emergency relief is
available from any court to avoid irreparable harm. The arbitrator
shall not award either party punitive, exemplary, multiplied or consequential
damages, or attorneys’ fees or costs.
Notwithstanding the
foregoing, the parties acknowledge and agree that the other party would be
irreparably harmed if any of the provisions of this Agreement are not performed
in accordance with their specific terms and that any breach of this Agreement
could not be adequately compensated in all cases by monetary damages
alone. Accordingly, in addition to any other right or remedy to which
such parties may be entitled at law or in equity, they shall be entitled to
enforce any provision of this Agreement by a decree of specific performance and
to temporary preliminary and permanent injunctive relief in any court of
competent jurisdiction to prevent breaches or threatened breaches of any of the
provisions of this Agreement.
11. Counterparts. This
Agreement may be executed in several counterparts, each of which shall be deemed
to be an original, but all of which together will constitute one and the same
Agreement.
12. Entire
Agreement. The terms of this Agreement are intended by the
parties to be the final expression of their agreement with respect to the
Consulting of the Contractor by the Company and may not be contradicted by
evidence of any prior or contemporaneous agreement. This Agreement
(together with any other agreements and instruments contemplated hereby or
referred to herein) shall supersede all undertakings or agreements, whether
written or oral, previously entered into by the Contractor and the Company or
any predecessor thereto or affiliate thereof with respect to the Consulting of
the Contractor by the Company. The parties further intend that this
Agreement shall constitute the complete and exclusive statement of its terms and
that no extrinsic evidence whatsoever may be introduced in any judicial,
administrative, or other legal proceeding to vary the terms of this
Agreement.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the date and year
first above written.
| Worldwide Energy and Manufacturing USA, Inc. | |||
|
|
By:
|
/s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | |||
| Title: President | |||
| CONTRACTOR: | |||
|
|
By: | /s/ Xxxxxx XxXxxxxx | |
| Xxxxxx XxXxxxxx | |||
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