CHINA INFRASTRUCTURE CONSTRUCTION CORPORATION INDEPENDENT DIRECTOR AGREEMENT
THIS
AGREEMENT (the "Agreement")
is made as of the __day of February 2010 and is by and between China
Infrastructure Construction Corporation, a Colorado corporation (hereinafter
referred to as the "Company"),
and _ (hereinafter referred to as the "Director").
WHEREAS, it is essential to
the Company to attract and retain accomplished and capable individuals to serve
on the Board of Directors of the Company (the “Board”);
and
WHEREAS, the Company believes
that Director possesses the necessary qualifications and abilities to serve as a
director of the Company and to perform the functions and meet the Company’s
needs related to its Board; and
WHEREAS, the Board of the
Company desires to appoint the Director to serve as and perform the duties of an
independent director and the Director desires to be so appointed and to perform
the duties required of such position in accordance with the terms and conditions
of this Agreement;
NOW, THEREFORE, the parties
agree as follows:
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.
Director will serve as a director of the Company and perform all duties of a
director of the Company, including without limitation (1) attending
meetings of the Board, (2) serving on one or more committees of the Board
(each a “Committee”)
and attending meetings of each Committee of which Director is a member,
(3) using judgment and advice to the best interests of the
shareholders, and (4) any other customary duties of a director as may be
determined and assigned by the Board of Directors of the Company and as may be
required by the Company’s constituent instruments, including its certificate or
articles of incorporation, bylaws and its corporate governance and board
committee charters, each as amended or modified from time to time, and by
applicable law, including by the Colorado Revised Statutes (the "CRS"). The
Company currently intends to hold quarterly meetings of the Board and of each
Committee, with a minimum of one meeting per annum being attended in person.
Committee meetings shall be held within the same time frame as the Board
meetings. Additional meetings of the Board and Committees may be called in
accordance with the Company’s by-laws.
The
Director agrees to devote sufficient time to perform the duties of a director of
the Company, including duties as a member and chair of designated committee(s)
and such other committees as the Director may hereafter be appointed
to. The Director will perform such duties in accordance with the
general fiduciary duty of directors arising under the CRS.
2.
TERM. The term of this
Agreement shall commence as of the date of the Director’s appointment by the
Board of Directors of the Company and shall continue until the next Annual
Shareholder’s Meeting, Director’s removal or resignation whichever occurs
earliest.
3.
COMPENSATION. The Company will compensate the Director as
follows:
(i) The
Company shall pay the Director an annual retainer fee of $15,000 USD to be paid
pro-rata in equal installments at the beginning of each month..
(ii) The
Chairman of each Board Committee will receive an additional fee of $5,000
USD per annum to be paid pro-rata in equal installments at the beginning of each
month. The member of each Board Committee will receive an additional fee of
$2,000 USD per annum to be paid pro-rata in equal installments at the beginning
of each month.
(iii) For
attendance at additional meetings beyond the four quarterly Board and Committee
meetings, the Director will be paid no additional fee.
(iv) The
Company will, pursuant to the terms and conditions of an equity incentive plan
to be adopted by the Company, grant to the Director options to purchase 10,000
shares of the common stock of the Company with an exercise price equal to $3.9,
vesting 1 year after the grant date. The option expires 36 months
from the date of the grant. If Director ceases to be a director of the Company,
Director (or Director’s estate) will have 365 calendar days to exercise options
that are vested within that 365 day period, after which all unexercised options
will expire. Directors are eligible for an annual grant of stock options subject
to Board approval.
(v) For
each meeting of the Board and Committee that directors are requested to attend
in person, the Company will reimburse for travel expenses incurred including
airfare from home base to meeting location, ground transportation, meals, hotel,
visas, phone, internet connections costs, and other miscellaneous expenses for
the duration of the trip.
4. EXPENSES.
In addition to the compensation and reimbursement provided in paragraph 3
hereof, the Company will reimburse the Director for pre-approved reasonable
business-related expenses incurred in good faith in the performance of the
Director’s duties for the Company. 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 receipts or documentation for
the expenditures.
5.
CONFIDENTIALITY. 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
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. The Company
and the Director each acknowledge that, in order for the intents and purposes of
this Agreement to be accomplished, the Company shall necessarily be obtaining
access to certain intellectual capital, benefit of the Director’s experience and
expertise, and contacts possessed by the Director (“DIC”). The Company covenants
not to, either directly or indirectly, in any manner, utilize or disclose to any
person, firm, corporation, association or other entity any “DIC” except as the
Director may allow in writing; provided, however, that all DIC shall be
identified to the Company in connection with its disclosure and provided,
further, that such DIC shall not be otherwise publicly available or known to the
Company.
6.
NON-COMPETE. During the term of this Agreement and for a period of twelve
(12) months following the Director’s removal or resignation from the Board of
Directors of the Company or any of its subsidiaries or affiliates (the "Restricted
Period"), the Director shall not, directly or indirectly, (i) in any
manner whatsoever engage in any capacity with any business competitive with the
Company’s current lines of business or any business then engaged in by the
Company, any of its subsidiaries or any of its affiliates (the "Company's
Business") for the Director’s own benefit or for the benefit of any
person or entity other than the Company or any subsidiary or affiliate; or (ii)
have any interest as owner, sole proprietor, shareholder, partner, lender,
director, officer, manager, employee, consultant, agent or otherwise in any
business competitive with the Company's Business; provided, however, that the
Director may hold, directly or indirectly, solely as an investment, not more
than two percent (2%) of the outstanding securities of any person or entity
which are listed on any national securities exchange or regularly traded in the
over-the-counter market notwithstanding the fact that such person or entity is
engaged in a business competitive with the Company's Business. In addition,
during the Restricted Period, the Director shall not develop any property for
use in the Company’s Business on behalf of any person or entity other than the
Company, its subsidiaries and affiliates.
7.
TERMINATION. With or without cause, the Board 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. Nothing contained herein or omitted here
from shall prevent the shareholder(s) of the Company from removing the Director
with immediate effect at any time for any reason.
8.
INDEMNIFICATION. The Company shall, to the full extent allowed by the law
of the State of Colorado, indemnify and hold the Director harmless from and
against any expenses, including reasonable attorney’s fees, judgments, fines,
settlements and other legally permissible amounts (“Losses”),
incurred in connection with any proceeding arising out of, or related to, the
Director’s position with the Company, other than any such Losses incurred as a
result of the Director’s negligence or willful misconduct. The
Company shall advance to the Director any expenses, including attorney’s fees
and costs of settlement, incurred in defending any such proceeding to the full
extent allowed by the law of the State of Colorado. Such costs and
expenses incurred by the Director in defense of any such proceeding shall be
paid by the Company in advance of the final disposition of such proceeding
promptly upon receipt by the Company of (a) written request for payment; (b)
appropriate documentation evidencing the incurrence, amount and nature of the
costs and expenses for which payment is being sought; and (c) an undertaking
adequate under applicable law made by or on behalf of the Director to repay the
amounts so advanced if it shall ultimately be determined pursuant to any
non-appealable judgment or settlement that the Director is not entitled to be
indemnified by the Company or any subsidiary thereof.
9.
AMENDMENT AND
WAIVER. No supplement, modification or amendment of this
Agreement will be binding unless executed in writing by both
parties. No waiver of any provision of this Agreement on any occasion
will be deemed to constitute or will constitute a waiver of that provision on
any other occasion or a waiver of any other provision of this
Agreement.
10. NOTICE. Any
and all notices referred to herein shall be sufficient if furnished in writing
at the addresses specified on the signature page hereto or, if to the Company,
to the Company’s address as specified in filings made by the Company with the
U.S. Securities and Exchange Commission and if by fax to 000-00-000-000-0000
with a copy (which shall not constitute notice) by fax to
000-000-0000.
11. GOVERNING
LAW. This Agreement shall be interpreted in accordance with, and the
rights of the parties hereto shall be determined by, the laws of the State of
New York.
12. 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.
13.
MISCELLANEOUS. 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 this Agreement
shall remain in full force and effect in the same manner as if the invalid or
illegal provision had not been contained herein.
14. 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.
15.
COUNTERPARTS. This Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one instrument. Facsimile execution and delivery of this Agreement is
legal, valid and binding for all purposes.
16. ENTIRE
AGREEMENT. Except as provided elsewhere herein, this Agreement sets forth
the entire agreement of the parties with respect to its subject matter and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party to this Agreement with respect
to such subject matter.
[Signature Page
Follows]
IN WITNESS WHEREOF, the
parties hereto have caused this Independent Director Agreement to be duly
executed and signed as of the day and year first above written.
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By:
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Name: Xxxx
Xxxx
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Title: Chief
Executive Officer
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INDEPENDENT
DIRECTOR
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Name:
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Address:
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