AMENDMENT NO. 1 TO CONSULTANT AGREEMENT
AMENDMENT
NO. 1 TO CONSULTANT AGREEMENT
This
Amendment No. 1 to the Consultant Agreement (the “Amendment”) is made
and entered into this 4th day of January, 2011, to be effective as of January 1,
2011 (the “Effective
Date”) by and between Feigeda Electronic Technology, Inc., a Delaware
corporation (the “Company”) and Xxxxxx
Xxxxxx (the “Consultant”). Capitalized
terms not defined herein shall have the meanings ascribed in the Agreement (as
defined below).
RECITALS
WHEREAS, the Consultant was appointed
the Company’s Part-Time Chief Financial Officer (as defined below) on December
16, 2010;
WHEREAS, the Company and the Consultant
entered into a Consultant Agreement dated as of December 22, 2010, effective as
of January 2011 (the “Agreement”) covering the terms of the Consultant’s service
as the Company’s part-time Chief Financial Officer;
WHEREAS, the Company and the Consultant
desire to amend the Agreement by entering into this Amendment; and
WHEREAS, Section 15 of the Agreement
permits the parties to amend the Original Agreement only by a written instrument
by the parties.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein, and for good and other valuable consideration, the receipt and
sufficiency of which are mutually acknowledged, the parties agree as
follows:
1. Section
1 of the Agreement is hereby revised to add the following sections:
(ff) “Part-Time
Chief Financial Officer” means the chief financial officer of the Company who is
also employed in any capacity, including as an officer, of another
entity.
(gg) “Full-Time
Chief Financial Officer” means the chief financial officer of the Company who is
not employed in any capacity, including as an officer, of any other entity and
who devotes his full business time to his duties as the Company’s chief
financial officer.
2. Section
2(b) of the Agreement is hereby amended and restated in its entirety as
follows:
2. Services
(b) Duties
of the Consultant
(i) Services as Part-Time Chief
Financial Officer: Until such time as the Board appoints the
Consultant as the Full-Time Chief Financial Officer, the Consultant shall serve
as the Part-Time Chief Financial Officer, and shall have such duties typically
associated with such title, including, without limitation, supervising
operations and management of the Company and its subsidiaries. The
Consultant shall faithfully and diligently perform all services as may be
assigned to him by the Chief Executive Officer (the “CEO) of the Company or the
Board (provided that, such services shall not materially differ from the
services currently provided by the Consultant), and shall exercise such power
and authority as may from time to time be delegated to him by the CEO or the
Board.
(ii) Services as Full-Time
Chief Financial Officer. At any time during the Term of this
Agreement, the Board of Directors of the Company may appoint the Consultant as
the Full-Time Chief Financial Officer. Within 5 business days of his
appointment as the Full-Time Chief Financial Officer by the Company’s Board of
Directors, the Consultant agrees to resign with immediate effectiveness from all
other employment and/or officer positions with all other entities and to devote
his full business time to his services as the Full-Time Chief Financial
Officer. During the period of Consultant’s service as the Full-Time
Chief Financial Officer, the Consultant shall not: (i) engage in any other
business activity, whether or not such business activity is pursued for gain or
profit and including service as a director of any other company, except as
approved in advance in writing by the Company, or (ii) accept or engage in any
other employment, whether as an employee or consultant or in any other capacity,
and whether or not compensated therefore. The Consultant and
the Company each acknowledge and agree that the appointment of the Consultant as
the Full-Time Chief Financial Officer shall not constitute “Good Reason”
pursuant to this Agreement.
(iii) Generally. The
Consultant shall render his services under this Agreement to the best of his
ability and use his reasonable best efforts to promote the interests of the
Company. The Consultant shall not engage in any other business or
occupation during the Term of the Agreement, including, without limitation, any
activity that (i) conflicts with the interests of the Company or its
subsidiaries, (ii) interferes with the proper and efficient performance of his
duties for the Company, or (iii) interferes with the exercise of his judgment in
the Company’s best interests. Notwithstanding the foregoing or any
other provision of this Agreement, it shall not be a breach or violation of this
Agreement for the Consultant to (y) deliver lecture, fulfill speaking
engagements or teach at educational institutions, or (z) manage personal
investments, so long as such activities do not unreasonably interfere with or
unreasonably detract from the performance of the Consultant’s responsibilities
to the Company in accordance with this Agreement. In the event of
Consultant’s breach of any of the provisions of this Section 2, the Company may
terminate the Consultant for Cause.
3. Section
4(c) of the Agreement is hereby amended and restated in its entirety as
follows:
4. Compensation
(c) Share
Incentive
(i) The
Company agrees to issue to the Consultant, as soon as practicable after the
Commencement Date, Fifty Thousand (50,000) shares of the Company’s Common Stock
(the “Initial
Shares”), which shall vest on the 12-month anniversary of the
Commencement Date. In the event of the Consultant’s termination of this
Agreement for Good Reason or the Company’s termination of the Consultant’s
services under this Agreement for Cause due to Consultant’s failure to comply
with Section 2 hereof, Consultant shall be entitled to keep such Initial Shares,
subject to the vesting schedule provided in this Section 4(c)(i). The terms and
conditions of the grant of the Initial Shares shall be further set forth in a
grant agreement by and between the Consultant and the Company.
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(ii) As soon as practicable
after the Consultant’s appointment as the Full-Time Chief Financial Officer and
the Consultant’s resignation from all other employment and/or officer positions
with all other entities pursuant to Section 2(b)(ii) of this Agreement, the
Company agrees to grant 100,000 shares of Common Stock of the Company (the
“Supplemental
Shares”) to the Consultant, with 50,000 of such Supplemental Shares to
vest on the one year anniversary of the Consultant’s appointment as the
Full-Time Chief Financial Officer by the Company’s Board of Directors and 50,000
of such Supplemental Shares to vest on the two-year anniversary of the
Consultant’s appointment as the Full-Time Chief Financial Officer by the
Company’s Board of Directors. The Consultant acknowledges and agrees
that if the Company’s Common Stock is listed or quoted on a stock exchange or
automated dealer quotation system at the time of the Company is required to
grant the Supplemental Shares pursuant to this Section 4(c)(ii), the Company’s
grant of the Supplemental Shares may be subject to the rules of such exchange or
quotation system which the Company will be required to follow. The
terms and conditions of the grant of the Supplemental Shares shall be further
set forth in a grant agreement by and between the Consultant and the
Company.
(iii) The Consultant
represents, acknowledges and agrees that:
(A) the Initial Shares and
Supplemental Shares are being offered and sold under one or more of the
exemptions from registration provided for in Section 4(2) of the Securities Act
of 1933, as amended (the “1933 Act”), including
Regulation D promulgated thereunder, and any applicable state securities laws,
(b) the Initial Shares and Supplemental Shares are restricted securities and may
not be resold or otherwise transferred without registration or further
exemption; and (c) this transaction has not been reviewed or approved by the
United States Securities and Exchange Commission (the “SEC”) or by any
regulatory authority charged with the administration of the securities laws of
any state;
(B) Consultant understands that the
Initial Shares and Supplemental Shares, have not been, and will not be,
registered under the 1933 Act by reason of a specific exemption from the
registration provisions of the 1933 Act, the availability of which depends upon,
among other things, the bona fide nature of the investment intent and the
accuracy of Consultant’s representations as expressed herein or otherwise made
pursuant hereto;
(C) Consultant is acquiring the
Initial Shares and Supplemental Shares, for investment for his own account, not
as a nominee or agent, and not with the view to, or for resale in connection
with, any distribution thereof, and that Consultant has no present intention of
selling, granting any participation in, or otherwise distributing the
same;
(D) Consultant has sufficient
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of an investment in the Initial Shares and
Supplemental Shares. Consultant, or Consultant’s professional
advisor, has the capacity to protect Consultant’s interests in connection with
the purchase of the Initial Shares and Supplemental Shares, and Consultant is
able to bear the economic risk of an investment in the Initial Shares and
Supplemental Shares, to hold the Initial Shares and Supplemental Shares for an
indefinite period of time and to suffer a complete loss of its
investment;
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(E) Consultant is an
“accredited investor” within the meaning of Regulation D, Rule 501(a),
promulgated by the SEC under the 1933 Act and shall submit to the Company such
further assurances of such status as may be reasonably requested by the
Company;
(F) Consultant acknowledges
that the Initial Shares and Supplemental Shares must be held indefinitely unless
subsequently registered under the 1933 Act or an exemption from such
registration is available;
(G) Consultant understands
and agrees that the certificates evidencing the Initial Shares and Supplemental
Shares, or any other Initial Shares and Supplemental Shares issued in respect of
the Initial Shares and Supplemental Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event, shall bear a legend
substantially in the form below (in addition to any legend required under
applicable state securities laws):
“THESE
SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER
APPLICABLE STATE LAW AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR
PLEDGED UNLESS COVERED BY AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE LAW, A TRANSFER
MEETING THE REQUIREMENTS OF RULE 144 OF THE SECURITIES AND EXCHANGE COMMISSION,
OR (IF REASONABLY REQUIRED BY THE COMPANY) AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT ANY SUCH TRANSFER IS EXEMPT FROM SUCH
REGISTRATION.”
(H) other than as set out
herein, the Company has not undertaken, and will have no obligation, to register
any of the Shares under the 1933 Act or any other securities
legislation;
(I) the decision to acquire
the Initial Shares and Supplemental Shares pursuant to this Agreement has not
been based upon any oral or written representation as to fact or otherwise made
by or on behalf of the Company and such decision is based entirely upon a review
of any public information which has been filed by the Company with the SEC in
compliance, or intended compliance, with applicable securities
legislation;
(J) the Consultant and his
advisor(s) have had a reasonable opportunity to ask questions of and receive
answers from the Company in connection with the acquisition of the Initial
Shares and Supplemental Shares hereunder, and to obtain additional information,
to the extent possessed or obtainable by the Company without unreasonable effort
or expense;
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(K) the Company is entitled
to rely on the representations and warranties of Consultant contained in this
Agreement and Consultant will indemnify and hold harmless the Company and, where
applicable, its respective directors, officers, employees, agents, advisors and
stockholders from and against any and all loss, liability, claim, damage and
expense whatsoever (including, but not limited to, any and all fees, costs and
expenses whatsoever reasonably incurred in investigating, preparing or defending
against any claim, lawsuit, administrative proceeding or investigation whether
commenced or threatened) arising out of or based upon any representation or
warranty of Consultant contained herein or in any document furnished by
Consultant to the Company in connection herewith being untrue in any material
respect;
(L) Consultant has been
advised to consult Consultant’s own legal, tax and other advisors with respect
to the merits and risks of an investment in the Initial Shares and Supplemental
Shares and with respect to applicable resale restrictions, including without
limitation registration restrictions under Rule 415 of the 1933 Act, and it is
solely responsible (and the Company is not in any way responsible) for
compliance with:
(i) in which Consultant is
resident in connection with the distribution of the Initial Shares and
Supplemental Shares hereunder, and
(ii) applicable resale
restrictions;
(M) none of the Initial
Shares and Supplemental Shares are listed on any stock exchange or automated
dealer quotation system and, other than as set out herein, no representation has
been made to Consultant that any of the Initial Shares and Supplemental Shares
will become listed on any stock exchange or automated dealer quotation system;
and
(N) the Company will refuse
to register any transfer of the Initial Shares and Supplemental Shares not made
in accordance with an effective registration statement under the 1933 Act or
pursuant to an available exemption from the registration requirements of the
1933 Act and in each case in accordance with applicable state laws.
4. Except
as amended herein, the Agreement shall remain in full force and
effect.
5. This
Amendment may be executed in any number of facsimile counterparts, each of which
shall be an original, but which together constitute one and the same
instrument. This Amendment may be executed and delivered by
facsimile.
6. This
Amendment shall be governed by and construed and enforced in accordance with the
internal laws of the State of Florida, without regard to principles of conflict
of law.
[SIGNATURES
ON FOLLOWING PAGE]
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WHEREFORE,
the parties hereto have executed this Amendment on the dates indicated below, to
be effective as of the Effective Date, regardless of the dates actually
signed.
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Dated: January
4, 2011
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By:
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/s/ Wu Zuxi
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Name:
Wu Zuxi
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Title:
Chief Executive Officer
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Dated: January
4, 2011
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XXXXXX
XXXXXX
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/s/ Xxxxxx Xxxxxx
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