FAR EAST WIND POWER CORP. CONSULTING AGREEMENT
Exhibit
10.1
This Consulting Agreement (the “Agreement”), is made and entered into as of June 24, 2010 (the “Effective Date”), by and between Far East Wind Power Corp., a Nevada corporation located at 00000 X. Xxxxx Xxxx.,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000 (the “Company”), and J Crane & Company Limited, located at 00
Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (the “Consultant”). The
Company desires to retain Consultant as an independent contractor to perform
such services, on terms set forth more fully below. In consideration
of the mutual promises contained herein, the parties agree as
follows:
1. SERVICES AND
COMPENSATION
(a) Services. Consultant shall serve as the Company’s Chief Financial
Officer and shall perform the customary duties and responsibilities implied by
such position including, without limitation, the duties and responsibilities set
forth in Exhibit A hereto (the “Services”). In such capacities Consultant shall report directly
to the Chief Executive Officer of the Company, or, in the absence of a Chief
Executive Officer, the Board of Directors of the Company (the “Board”). Consultant’s
position, duties, and responsibilities can be modified as reasonably required
to suit the specific requirements and needs of the Company. Consultant shall perform the Services for the
Company in a professional and diligent fashion. Consultant agrees that Xxxxx
Xxxxx (the “Principal”) shall
exclusively perform the Services on behalf of Consultant pursuant to this
Agreement and failure to do so shall be deemed a material breach of this
Agreement subject to termination of this Agreement by the Company pursuant to
Section 8(d) hereof.
(b) Compensation.
(i) Initial
Fee. On the Effective Date, the
Company shall pay to Consultant a fee of 68,000 Chinese Renminbi (the “Initial Fee”), as payment for Consultant (i) modifying and refining
the Company’s financial forecast and other related models and (ii) preparing an
initial presentation in Microsoft Powerpoint format.
(ii) Monthly
Fee. The Company shall pay Consultant a monthly fee (the
“Monthly Fee”)
of 68,000 Chinese Renminbi which shall be increased as follows:
(A) the
Monthly Fee shall be increased to 81,600 Chinese Renminbi if and when the value
of the Company’s total wind turbine and related assets classified as property,
plant and equipment on the Company’s balance sheet (“Balance Sheet”) filed
as part of the Company’s quarterly and annual financial statements in accordance
with the Securities Exchange Act of 1934, as amended (the “Operating Assets”),
exceeds $50,000,000;
(B) the
Monthly Fee shall be increased to 102,000 Chinese Renminbi if and when the value
of the Operating Assets exceeds $100,000,000;
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(C) as
determined by the Board or the Company’s compensation committee if and when the
value of the Operating Assets exceeds $200,000,000, provided, that the
Monthly Fee shall not be less than $102,000 Chinese Renminbi.
The
Monthly Fees shall accrue each month and shall be
paid to Consultant at such time as the Company completes a capital raise in any
form as of or subsequent to the Effective
Date whereby the Company receives gross
proceeds in excess of $250,000 (the “Financing”). No interest will apply to any portion of
the accrued Monthly Fees. For any month following the completion of
the Financing the Company shall pay Consultant the Monthly Fee on the first day
of each month.
(c) Stock Awards.
(i) Initial Stock Award.
Subject to approval by the Board, on the Effective Date the Company will grant
to Consultant 250,000 shares of the Company’s common stock (the “Initial Stock
Award”). The Initial Stock Award shall be subject to vesting at the rate
of one sixth (1/6) of the shares per month commencing on the Effective Date,
subject to Consultant continuing to be a service provider to the Company
pursuant to this Agreement on such dates. The vesting schedule of the Initial
Stock Award shall be subject to acceleration as described in Sections 1(c)(iv)
and 8(e)(i)(B) of this Agreement.
(ii) Second Stock
Award. Subject to approval by the Board, on the Effective Date
the Company will grant to Consultant 400,000 shares of the Company’s common
stock (the “Second
Stock Award”). The Second Stock Award shall be subject to
vesting at the rate of 1/36 of the shares per month commencing on the Effective
Date, subject to Consultant continuing to be a service provider to the Company
pursuant to this Agreement on such dates. The vesting schedule of the
Second Stock Award shall be subject to acceleration as described in Sections
1(c)(iv) and 8(e)(i)(B) of this Agreement.
(iii) Third Stock
Award. Subject to approval by the Board, upon successful
listing by the Company on a stock exchange, the Company will grant to Consultant
150,000 shares of the Company’s common stock (the “Third Stock
Award”). The grant of the Third Stock Award is subject to
Sections 1(c)(iv) and 8(e)(i)(C) of this Agreement.
(iv) Acceleration of Rights upon
Change of Control. If at any time during the term of this Agreement there
is a Change of Control (as defined below), then (A) all of the then unvested
shares subject to the Initial Stock Award and the Second Stock Award shall
become vested and any repurchase right on behalf of the Company shall lapse as
to such shares immediately prior to the closing of such Change of Control and
(B) Consultant shall be entitled to receive all of the shares subject to the
Third Award immediately prior to the closing of such Change of Control. For
purposes of this Agreement “Change of Control”
shall mean (i) any acquisition of the Company in any transaction or series or
related transactions by means of merger, consolidation, reorganization, stock
acquisition or otherwise in which outstanding shares of the Company are
exchanged for securities or other consideration issued, or caused to be issued,
by an acquiring entity or its subsidiary whose assets or revenues are larger
than the Company’s assets on its Balance Sheet or revenues, respectively, and
that results in the transfer of fifty percent (50%) or more of the outstanding
voting power of the Company (other than a merger effected primarily for the
purpose of changing the domicile of the Company); (ii) a sale or other
conveyance of all or substantially all of the assets of the Company; or (iii) a
liquidation, dissolution or winding up of the Company. Notwithstanding the prior
sentence, the sale of the Company’s securities in a bona fide equity financing
transaction shall not be deemed a Change of Control.
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(d) Anti-dilution. In the event the Company shall issue
Additional Shares of Common Stock (as defined below) that would result in
Consultant’s Holdings representing less than one percent (1%) of the Company’s
outstanding common stock and Common Stock Equivalents, then the Company shall
issue to Consultant, on a quarterly basis as set forth below, without any
additional consideration from Consultant and subject to the same acceleration
and vesting provisions as set forth in this Agreement, the number of shares of
common stock such that Consultant’s Holdings shall represent one percent (1%) of
the outstanding shares of common stock and Common Stock Equivalents outstanding
after the issuance of the Additional Shares of Common Stock. “Consultant’s
Holdings” shall mean the total number of shares of common stock received
by Consultant as stock compensation from the Company, without regard to (i) any
open market purchases of the Company’s common stock by Consultant, (ii) the
Third Stock Award, and (iii) any sales by Consultant of any shares of stock
received as compensation from the Company.
(e) “Additional Shares of Common
Stock” shall mean any shares of common stock issued subsequent to the
Effective Date by the Company or Common Stock Equivalents deemed issued
subsequent to the Effective Date by the Company (as set forth below), other than
shares of common stock or Common Stock Equivalents issued or
issuable:
(i) pursuant
to stock splits, stock dividends, recapitalizations or the like;
(ii) to
employees, directors, consultants or advisors under stock option, stock bonus or
stock purchase plans or agreements or similar plans or agreements approved by
the Board or an authorized committee thereof;
(iii) to
financial institutions, lessors or other lenders in connection with loans,
commercial credit arrangements, equipment financing, commercial property lease
transactions, or similar transactions with primarily non-equity financing
purposes;
(iv) in
connection with mergers, acquisitions or similar transactions approved by the
Board of Directors; or
(v) in
strategic partnership transactions or similar transactions with primarily
non-equity financing purposes.
(f) “Common Stock
Equivalents” means any debt or preferred stock instruments of the Company
which are convertible into or exchangeable for, or otherwise entitles the holder
thereof to receive, common stock.
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In the
event the Company shall issue any Common Stock Equivalents then the maximum
number of shares (as set forth in the instrument relating thereto without regard
to any provisions contained therein designed to protect against dilution) of
common stock issuable upon the conversion or exchange of such Common Stock
Equivalents, shall be deemed to be Additional Shares of Common Stock issued as
of the time of such issue, provided that in any such case in which Additional
Shares of Common Stock are deemed to be issued:
(i) no
further adjustments in the number of shares of common stock held by Consultant
shall be made upon the subsequent issue of common stock or Common Stock
Equivalents upon the conversion or exchange of such Common Stock
Equivalents;
(ii) if
such Common Stock Equivalents by their terms provide, with the passage of time
or otherwise, for any decrease or increase in the number of shares of common
stock issuable, upon the conversion or exchange thereof, the number of shares of
common stock held by Consultant and any subsequent adjustments based thereon,
shall, upon any such increase or decrease becoming effective, be recomputed to
reflect such increase or decrease insofar as it affects Common Stock Equivalents
or rights of conversion or exchange under such Common Stock
Equivalents;
(iii) upon
the expiration of Common Stock Equivalents which shall not have been converted
or exchanged into common stock, the number of shares of common stock held by
Consultant, and any subsequent adjustments based thereon, shall, upon such
expiration, be recomputed as if the only Additional Shares of Common Stock
issued were the shares of common stock, if any, actually issued upon the
conversion or exchange of such Common Stock Equivalents. In the case
of any recomputation under this subsection, Consultant shall reassign to the
Company the number of shares of common stock equal to the difference between (x)
the number of shares issued to Consultant pursuant to Section 1(d) and (y) the
number of shares of common stock that would have been issued as result of the
adjustment pursuant to this Section 1(f)(iii).
(g) Review of Consultant’s Stock
Holdings. The Company will review Consultant’s right to
receive any additional shares of the Company’s common stock pursuant to this
Section on a quarterly basis. Any additional shares of common stock
to be issued to Consultant pursuant to this Section will be issued by the
Company, subject to approval by the Board, as soon as practical after the end of
the applicable quarter.
(h) Termination of Anti-Dilution
Rights. The right to receive additional shares of the
Company’s common stock pursuant to Section 1(d) shall terminate upon the earlier
of (i) the Company reporting within an SEC filing on Form 10-Q or 10-K at least
$50,000,000 in revenue in accordance with the Generally Accepted Accounting
Principles in the United States of America (“GAAP”) or (ii) the
Company reporting within an SEC filing on Form 10-Q or 10-K at least
$100,000,000 in assets on its Balance Sheet in accordance with
GAAP.
(i) Expenses. The Company will pay or reimburse Consultant for all
necessary out-of-pocket transportation, hotel, and other expenses reasonably
incurred by Consultant in the conduct of the business of the Company upon
submission of such itemized vouchers, receipts or other documentation with
respect to any such expenses as shall be reasonably requested by the Company,
and, in any event, in accordance with the guidelines of the Company, if any,
published from time to time. In the event Consultant incurs or plans to incur
expenses in excess of $5,000 individually or in the aggregate in any calendar
month, Consultant shall obtain the prior written approval from the
Company. All international travel expenses to be incurred by
Consultant originating in Beijing, China, will be advanced by the Company to
Consultant seven (7) days before Consultant departs Beijing,
China. The Company will pay Consultant on the first day of each month
a monthly stipend of $450 for international call
reimbursements.
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2. PROPRIETARY INFORMATION;
CONFIDENTIALITY
(a) “Confidential
Information” means any Company proprietary information, technical data,
trade secrets or know-how, including, but not limited to, research and
development, product plans, products, services, customers, customer lists,
suppliers, manufacturers, government contacts, markets, software, developments,
inventions, processes, formulas, technology, designs, drawings, engineering,
hardware configuration information, marketing, finances, in addition to
financial, accounting, statistical, marketing and personnel information of the
Company and/or its customers or other third-parties or other business
information disclosed by the Company either directly or indirectly in writing,
orally or by drawings or inspection of parts or equipment.
(b) Consultant
while performing the Services, will be exposed to and handling the Company’s
Confidential Information. Consultant will not, during or subsequent
to the term of this Agreement, use the Company’s Confidential Information for
any purpose whatsoever other than the performance of the Services on behalf of
the Company or disclose the Company’s Confidential Information to any third
party. Consultant agrees that the restrictions in this Section 2
shall also apply to Confidential Information conceived, originated, discovered
or developed by Consultant during the term of this Agreement. It is
understood that said Confidential Information shall remain the sole property of
the Company. Consultant further agrees to take all reasonable precautions to
prevent any unauthorized disclosure of such Confidential Information including,
but not limited to, having each employee of Consultant, if any, with access to
any Confidential Information, execute a nondisclosure agreement containing
provisions in the Company’s favor identical to Sections 2, 3 and 8 of this
Agreement. Confidential Information does not include information which (i) is
known to Consultant at the time of disclosure to Consultant by the Company as
evidenced by written records of Consultant, (ii) has become publicly known and
made generally available through no wrongful act of Consultant, or (iii) has
been rightfully received by Consultant from a third party who is authorized to
make such disclosure. Without the Company’s prior written approval, Consultant
will not directly or indirectly disclose to anyone the contents of this
Agreement.
(c) Consultant
agrees that Consultant will not, during the term of this Agreement, improperly
use or disclose any proprietary information or trade secrets of any former or
current employer or other person or entity with which Consultant has an
agreement or duty to keep in confidence information acquired by Consultant, if
any, and that Consultant will not bring onto the premises of the Company any
unpublished document or proprietary information belonging to such employer,
person or entity unless consented to in writing by such employer, person or
entity. Consultant will indemnify the Company and hold it harmless from and
against all claims, liabilities, damages and expenses, including reasonable
attorneys fees and costs of suit, arising out of or in connection with any
violation or claimed violation of a third party’s rights resulting in whole or
in part from the Company’s use of the work product of Consultant under this
Agreement.
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(d) Consultant
recognizes that the Company has received and in the future will receive from
third parties their confidential or proprietary information subject to a duty on
the Company’s part to maintain the confidentiality of such information and to
use it only for certain limited purposes. Consultant agrees that Consultant owes
the Company and such third parties, during the term of this Agreement and
thereafter, a duty to hold all such confidential or proprietary information in
the strictest confidence and not to disclose it to any person, firm or
corporation or to use it except as necessary in carrying out the Services for
the Company consistent with the Company’s agreement with such third
party.
(e) Return of
Property. Upon the termination of this Agreement, or upon
Company’s earlier request, Consultant will deliver to the Company all devices,
records, data, disks, computer files, notes, reports, proposals, lists,
correspondence, materials, equipment, other documents or property, reproductions
of any aforementioned items developed by Consultant pursuant in the performance
of the Services to the Company, or Confidential Information that Consultant may
have in Consultant’s possession or control.
(f) Consultant
Information. Consultant represents and warrants to the Company
that information provided by Consultant in connection with this Agreement and
any supplemental information provided to the Company is complete, true and
materially correct in all respects. Consultant has not omitted
any information that is or may reasonably be considered necessary or useful to
evaluate the information provided by Consultant to the
Company. Consultant shall immediately notify the Company in writing
of any change in the accuracy or completeness of all such
information.
(g) Other
Agreements. Consultant represents that the performance of all
the terms of this Agreement will not breach any agreement to keep in confidence
proprietary information acquired by Consultant in confidence or in trust prior
to the execution of this Agreement. Consultant has not and shall not: (i)
disclose or use in the course of the Services to the Company, any proprietary or
trade-secret information belonging to another; or (ii) enter into any oral or
written agreement in conflict with this Agreement.
3. OWNERSHIP
(a) Consultant
agrees that all copyrightable material, notes, records, drawings, designs,
inventions, improvements, developments, discoveries and trade secrets conceived,
made or discovered by Consultant, solely or in collaboration with others, during
the period of this Agreement which relate in any manner to the business of the
Company that Consultant may be directed to undertake, investigate or experiment
with, or which Consultant may become associated with in work, investigation or
experimentation in the line of business of Company in performing the Services
hereunder (collectively, “Inventions”), are the
sole property of the Company. In addition, any Inventions which are related in
any manner to the business of the Company constitute copyrightable subject
matter shall be considered "works made for hire" as that term is defined in the
United States Copyright Act. Consultant further agrees to assign (or cause to be
assigned) and does hereby assign fully to the Company all Inventions and any
copyrights, patents, mask work rights or other intellectual property rights
relating to the business of the Company. Attached as Exhibit B hereto is a
list describing all inventions, original works of authorship, developments,
improvements and trade secrets which were made by Consultant prior to the date
of this Agreement, which belong to Consultant, and which are not assigned to the
Company (“Prior
Inventions”). Consultant represents and warrants that no patent
applications relating to Inventions or Prior Inventions are pending under his
name and no Inventions or designs provided to the Company have been used by
prior customers of Consultant or patented by such customers.
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(c) Consultant
agrees that if in the course of performing the Services, Consultant incorporates
into any Invention relating to the business of the Company developed hereunder
any invention, improvement, development, concept, discovery or other proprietary
information owned by Consultant or in which Consultant has an interest, the
Company is hereby granted and shall have a nonexclusive, royalty-free,
perpetual, irrevocable, worldwide license to make, have made, modify, use and
sell such item as part of or in connection with such Invention.
(d) Consultant
agrees that if the Company is unable because of Consultant’s unavailability,
dissolution, mental or physical incapacity, or for any other reason, to secure
Consultant’s signature to apply for or to pursue any application for any United
States or foreign patents or mask work or copyright registrations covering the
Inventions assigned to the Company above, then Consultant hereby irrevocably
designates and appoints the Company and its duly authorized officers and agents
as Consultant’s agent and attorney in fact, to act for and in Consultant’s
behalf and stead to execute and file any such applications and to do all other
lawfully permitted acts to further the prosecution and issuance of patents,
copyright and mask work registrations thereon with the same legal force and
effect as if executed by Consultant.
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4. UNFAIR COMPETITION;
NON-SOLICITATION
(a) Unfair
Competition. During the term of this Agreement, Consultant has
a duty of loyalty and a fiduciary responsibility to the Company. Consultant
shall not, directly or indirectly, whether as a partner, employee, creditor,
stockholder, or otherwise, promote, participate, or engage in any activity or
other business which is directly competitive to the current operations of the
Company or the currently contemplated future operations of the
Company. The obligation of Consultant not to compete with the
Company shall not prohibit Consultant from owning or purchasing not more than a
five percent (5%) beneficial interest in any securities that are regularly
traded on a recognized stock exchange or on the
over-the-counter market subject to relevant federal and state securities
laws. To the fullest extent permitted by law, upon the termination of
this Agreement for any reason, Consultant shall not use any of the Confidential
Information to directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stockholder, corporate officer, director,
or any other individual or representative capacity, engage or participate in any
business, wherever located, that is in direct competition with the business of
the Company. Should any portion of this Section be deemed unenforceable because
of the scope, duration or territory encompassed by the undertakings of the
Consultant hereunder, and only in such event, then the Consultant and the
Company consent and agree to such limitation on scope, duration or territory as
may be finally adjudicated as enforceable by a court of competent jurisdiction
after the exhaustion of all appeals.
(b) Non-Solicitation of
Customers. While providing
Services to the Company, Consultant shall
not divert or attempt to divert (by solicitation or other means), whether
directly or indirectly, the Company’s customers for the purpose of inducing or
encouraging them to sever their relationship with the Company or to solicit them
in connection with any product or service competing with those products and
services offered and sold by the Company. Also, to the fullest extent
permissible under applicable law, following termination of this Agreement
for any reason, Consultant agrees not use any of the Confidential
Information to directly or indirectly divert or attempt to divert (by
solicitation or other means) the Company’s customers for the purpose of inducing or encouraging them to
sever their relationship with the Company or to solicit them in connection with
any product or service competing with those products and services offered and
sold by the Company.
(c) Non-Solicitation of
Employees. To the fullest extent permissible under applicable
law, Consultant agrees that both during the period of this Agreement and for a
period of two (2) years following termination of this Agreement, Consultant
shall not take any action to induce employees or independent contractors of the
Company to sever their relationship with the Company and accept an employment or
an independent contractor relationship with any other
business. However, this obligation will not affect any
responsibility Consultant may have as an employee of the Company with respect to
the bona fide hiring and firing of Company personnel.
(d) Non-Disparagement. Upon
termination of this Agreement, Consultant agrees to not make any disparaging
remarks about the Company, or any officers, directors, employees, executive or
independent contractors of or to any of the foregoing.
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5. TRADE
SECRETS. Consultant shall not disclose to any others, or take
or use for Consultant’s own purposes or purposes of any others, during the term
of this Agreement or at any time thereafter, any of the Company’s trade secrets,
including without limitation, Confidential Information, customer lists, wind
farm operators, government contacts, applications, software or intellectual
property of the Company. Consultant agrees that these restrictions
shall also apply to (i) trade secrets belonging to third parties in Company’s
possession and (ii) trade secrets conceived, originated, discovered or developed
by Consultant during the term of this
Agreement relating to the affairs of the
Company.
6. REPORTS. Consultant
agrees that it will from time to time during the term of this Agreement or any
extension thereof keep the Company advised as to Consultant’s progress in
performing the Services hereunder and that Consultant will, as requested by the
Company, prepare written reports with respect thereto. It is understood that the
time required in the preparation of such written reports shall be considered
time devoted to the performance of Consultant’s Services.
7. CONFLICTING
OBLIGATIONS. Consultant certifies
that Consultant has no outstanding agreement or obligation that is in conflict
with any of the provisions of this Agreement, or that would preclude Consultant
from complying with the provisions hereof, and further certifies that Consultant
will not enter into any such conflicting agreement during the term of this
Agreement.
8. TERM AND
TERMINATION
(a) This
Agreement will commence on the Effective Date and will continue for three (3)
years from the Effective Date or until termination as provided
below.
(b) Either
party hereto may terminate this Agreement upon thirty (30) days prior written
notice to the other party.
(c) Consultant
may terminate this Agreement for material breach by the Company which is not
cured after fourteen (14) days written notice to the Company.
(d) Notwithstanding
anything herein to the contrary, the Company may terminate this Agreement
immediately and without prior notice if Consultant refuses to or is unable to
perform the Services, the Principal does not exclusively perform the Services on
behalf of Consultant, or is in breach of any material provision of this
Agreement.
(e) Upon
such termination all rights and duties of the parties toward each other shall
cease except:
(i) that
the Company shall be obliged to pay, within thirty (30) days of the effective
date of termination, all undisputed amounts owing to Consultant for Services
completed and accepted by the Company prior to the termination date and related
expenses, if any, in accordance with the provisions of Section 1, provided that if the
Company terminates this Agreement for any reason other than for Cause (as
defined below) thirty (30) days after the Effective Date:
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(A)
Consultant
shall continue to receive the Monthly Fees for a period of three (3) months
based on the Monthly Fee paid to Consultant for the last month prior to
termination,
(B)
a number of
shares equal to twenty-five percent (25%) of the then unvested shares subject to
the First Stock Award and the Second Stock Award shall become vested and any
repurchase right on behalf of the Company shall lapse as to such shares,
and
(C)
in the event
Consultant is terminated within twelve (12) months of the effective date of an
application by the Company to list its common stock on a stock exchange, subject
to Board approval, the Company will grant Consultant a number of shares of the
Company’s common stock equal to the product of 1/24 of the Third Stock Award and
the number of full months from the date of Consultant’s termination and the
effective date of the application; provided, however, if the
listing occurs after twenty-four (24) months from the date of Consultant’s
termination pursuant to this paragraph, Consultant will no longer be eligible to
receive any of the Third Stock Award.
(ii) Consultant’s
entitlement to receive the payments and benefits described in Sections
8(e)(i)(A), 8(e)(i)(B) and 8(e)(i)(C) above is conditioned upon and subject to
Consultant’s execution of a full general release, releasing all claims, known or
unknown, that Consultant may have against the Company arising out of or any way
related to the relationship between the Company and Consultant or termination of
Consultant.
(iii) As
used herein, the term “Cause” shall mean (i)
Consultant’s engagement in any acts or omissions constituting gross negligence,
recklessness or willful misconduct with respect to performance of the Services;
(ii) material breach by Consultant of any term of this Agreement or any other
agreement between Consultant and the Company; (iii) Consultant’s conviction for
fraud, embezzlement or a felony or crime of moral turpitude; (iv) Consultant’s
failure to perform the Services due to the Principal’s mental or physical
disability; (v) Consultants’ willful engagement in conduct materially injurious
to the business interests of the Company or any of its subsidiaries or
affiliates; (vi) performance of the Services by someone other than the
Principal; or (vii) the Principal’s death.
(iv)
Sections 2, 3,
4, 5, 8 and 12 shall survive termination of this Agreement.
9. ASSIGNMENT. Neither
this Agreement nor any right hereunder or interest herein may be assigned,
delegated or transferred by Consultant without the express written consent of
the Company.
10. INDEPENDENT
CONTRACTOR. Nothing in this Agreement shall in any way be
construed to constitute Consultant as an agent, employee or representative of
the Company, but Consultant shall perform the Services hereunder as an
independent contractor. Consultant agrees to furnish (or reimburse the Company
for) all tools and materials necessary to accomplish this Agreement, and shall
incur all expenses associated with performance, except as provided herein.
Consultant acknowledges and agrees that Consultant is obligated to report as
income all compensation received by Consultant pursuant to this Agreement, and
Consultant agrees to and acknowledges the obligation to pay all self-employment
and other taxes thereon. Consultant further agrees to indemnify the Company and
hold it harmless to the extent of any obligation imposed on Company to pay in
withholding taxes or similar items.
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11. EQUITABLE
RELIEF. Consultant agrees that it would be impossible or
inadequate to measure and calculate the Company’s damages from any breach of the
covenants set forth in Sections 2, 3, 4, and 5 herein. Accordingly, Consultant
agrees that if Consultant breaches Sections 2, 3, 4, or 5, the Company will have
available, in addition to any other right or remedy available, the right to
obtain from any court of competent jurisdiction an injunction restraining such
breach or threatened breach and specific performance of any such provision.
Consultant further agrees that no bond or other security shall be required in
obtaining such equitable relief and Consultant hereby consents to the issuances
of such injunction and to the ordering of such specific
performance.
12. GOVERNING LAW; JURISDICTION;
ARBITRATION. This Agreement shall be governed and construed
and enforced in accordance with the internal, substantive laws of the State of
New York, without giving effect to the conflict of law rules thereof; provided, however, that the
interpretation and enforcement of the arbitration provision set forth in this
Section shall be governed by the Federal Arbitration Act. Any dispute or controversy between the Company and
Consultant, arising out of or relating to this Agreement, the breach of this
Agreement, or otherwise, shall be settled by binding arbitration in New York
City, New York administered by the American
Arbitration Association in accordance with
its Commercial Arbitration Rules then in
effect by a single arbitrator. Both the Company and Consultant shall be
precluded from bringing or raising in court or another forum any dispute that
was or could have been submitted to binding arbitration. This
arbitration requirement does not apply to claims for any provisional or
injunctive relief remedies as set forth in any New York statute or
law. The parties irrevocably agree to
submit to the jurisdiction of the federal and state courts within the County of
New York, New York for any injunctive relief and in connection with any suit
arising out of the confirmation or enforcement of any award rendered by the
arbitrator, and waive any defense based on forum non convenience or improper
venue with respect thereto.
No remedy conferred in this Agreement upon Consultant or
the Company is intended to be exclusive of any other remedy, and each and every
such remedy shall be cumulative and shall be in addition to every other remedy
conferred herein or now or hereafter existing at law or in equity or by statute
or otherwise.
THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF
CONSULTANT’S RIGHT TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF ALL DISPUTES
RELATING TO ALL ASPECTS OF CONSULTANT’S RELATIONSHIP WITH THE
COMPANY.
13. TAX ADVICE. Consultant acknowledges
that Consultant has not relied and will not rely upon the Company or the
Company’s counsel with respect to any tax consequences related to the terms and
conditions of this Agreement. Consultant assumes full responsibility
for all such consequences and for the preparation and filing of all tax returns
and elections which may or must be filed in connection with this
Agreement.
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14. REPRESENTATION. The
parties to this Agreement, and each of them, acknowledge, agree, and represent
that it: (a) has directly participated in the negotiation and preparation of
this Agreement; (b) has read the Agreement and has had the opportunity to
discuss it with counsel of its own choosing; (c) it is fully aware of the
contents and legal affect of this Agreement; (d) has authority to enter
into and sign the Agreement; and (e) enters into and signs the same by its
own free will.
15. ENTIRE AGREEMENT AND
AMENDMENTS. This Agreement is the entire agreement of the
parties and supersedes any prior or contemporaneous agreements whether oral or
written between them with respect to the subject matter hereof. This Agreement
may be changed only if agreed to in writing by both parties.
16. COUNTERPARTS. This
Agreement may be executed in one or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
instrument.
17. SEVERABILITY. If
any provision of this Agreement is held to be unenforceable for any reason, such
provision shall be adjusted rather than voided, if possible, in order to achieve
the intent of the parties to the maximum extent possible. In any
event, all other provisions of this Agreement shall be deemed valid and
enforceable to the full extent possible.
18. WAIVER. The waiver of any term
or condition contained in this Agreement by any party to this Agreement shall
not be construed as a waiver of a subsequent breach or failure of the same term
or condition or a waiver of any other term or condition contained in this
Agreement.
[Signatures on following page]
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IN WITNESSETH WHEREOF, the undersigned have executed
this Agreement as of the date first above written.
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COMPANY:
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By:
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Name: Xxx Xxxxxxxx
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Title: President and Chief Executive
Officer
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CONSULTANT:
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J
CRANE & COMPANY LIMITED
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By:
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Name:
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Title:
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EXHIBIT
A
SERVICES
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1)
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Ensure
that filings with the United States Securities and Exchange Commission
(“SEC”)
are timely filed, complete and
accurate;
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2)
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Represent
the Company for any registration statements filed with the SEC, SEC
inquiries or investigations;
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3)
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Function
as the Company’s primary representative with individual and institutional
investors, be available for conference calls, on-site meetings, roadshows
in the United States of America or Asia, and potentially
elsewhere;
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4)
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Develop,
maintain and update all financial forecasts and models related to the
Company’s operations and be able to explain and support all assumptions
included within the financial forecasts and
models;
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5)
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Provide
all translation services as deemed necessary for the Company to operate in
China unless and until the Company’s total revenues or assets as reported
in an SEC filing on Form 10-Q or 10-K exceed
$50,000,000;
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6)
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Provide
additional accounting staff as needed, subject to additional compensation
payable directly to the accounting staff or through an entity controlled
by Consultant;
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7)
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Maintain
all financial records, and have all records available for delivery to
investors, the Board or others as
needed;
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8)
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Coordinate
all financial presentations as requested for Board meetings, shareholder
meetings; and
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9)
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As
necessary and by order of the Board, manage all communications and
activities with the Company’s securities attorneys, auditors, stock
transfer agent and investor relations
firm.
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EXHIBIT A
EXHIBIT
B
LIST OF PRIOR
INVENTIONS
AND ORIGINAL WORKS OF
AUTHORSHIP
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Title
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Date
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Identifying
Number or Brief Description
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x No
inventions or improvements
o Additional
Sheets Attached
Signature
of Consultant:
Print
Name of Consultant:
Date:
June 24, 2010
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Acknowledged
and agreed:
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By:
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Name:
Xxx Xxxxxxxx
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Title:
President and Chief Executive Officer
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Date:
June 24, 2010
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Exhibit
B
