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CORPORATE FINANCE ADVISORY SERVICES AGREEMENT
XXXXXXXXX CORPORATE INVESTOR SERVICES LLC ("XXXXXXXXX") hereby agrees to provide
to China Agri-Business, Inc. (the "Company") corporate finance advisory services
specifically and primarily designed to assist the Company in forming a Chinese
owned Wholly-Owned Foreign Enterprise ("WOFE"), and the Company becoming
publicly-traded in the United States.
1. COSTS FOR ADVISORY SERVICES
1.1 Payment in Shares. The advisory services to be provided by XXXXXXXXX shall
commence upon the receipt by XXXXXXXXX of an executed copy of this
Advisory Services Agreement and the issuance by the Company to XXXXXXXXX
(or designees of XXXXXXXXX) of shares of the common stock of the Company
(the "Stock"), with the understanding that the Stock shall represent no
less than 10% of the Company's shares outstanding, on a fully diluted
basis, at the time of commencement of trading of the Company's shares. .
1.2 Payment in Cash. Upon the establishment of a trading market for the
Company's shares in the United States, the Company shall pay to XXXXXXXXX,
the US dollar equivalent of RMB 750,000 by wire transfer to XXXXXXXXX'x
account in the United States.
1.3 Stock Certificates. Certificates representing the Stock shall be
registered in XXXXXXXXX'x name (or designees of XXXXXXXXX) (or an
appropriate book entry shall be made). Certificates shall be issued to
XXXXXXXXX and registered in the name of XXXXXXXXX (or designees of
XXXXXXXXX).
1.4 Adjustments to Stock. If there is any change, increase or decrease, in the
outstanding shares of the Company's common stock which is effected without
receipt of additional consideration by the Company, by reason of a stock
dividend, stock split, recapitalization, merger, consolidation,
combination or exchange of stock, or other similar circumstances, or if
there is a spin-off or other distribution of assets to the Company's
stockholders, other than the acquisition of the Target, the Company shall
make an appropriate adjustment in the aggregate number of shares of Stock.
Such adjustment shall be identical to the adjustment made generally with
respect to outstanding shares of the Company's common stock. Any
additional securities or other property issued to XXXXXXXXX as a result of
any of the foregoing events shall continue to be subject to the terms of
this Agreement to the same extent as the Stock giving rise to the right to
receive such additional securities or other property.
3. DISCLOSURE
Additionally, it is acknowledged that XXXXXXXXX, or an affiliate of
XXXXXXXXX may enter, or has entered into a services agreement with a
privately-held Chinese company that may enter into a business relationship
with the WOFE, and XXXXXXXXX may be receiving cash fees from the
privately-held Chinese company.
4. REPRESENTATION AND WARRANTIES
4.1 Company. The Company represents and warrants to XXXXXXXXX as follows: (i)
The Company has been duly formed; (ii) the execution of this Agreement has
been duly authorized by the Company and does not require the consent of or
notice to any party not previously obtained or given, and (iii)The Company
shall indemnify and save XXXXXXXXX harmless against any claims, damages,
liabilities and causes of action, including but not limited to reasonable
attorney fees, which arise by reason of the consulting services provided
by XXXXXXXXX hereunder, or by reason of an act XXXXXXXXX may do on behalf
of, or at the request of the Company, providing that XXXXXXXXX'x actions
and activities in providing consulting services hereunder, and any such
act undertaken by XXXXXXXXX on behalf of, or at the request of the
Company, actions or activities are consistent with the provisions of this
Agreement, are undertaken in good faith, and do not involve gross
negligence or wanton or willful misconduct by XXXXXXXXX.
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4.2 XXXXXXXXX. XXXXXXXXX represents and warrants to the Company as follows:
(i) XXXXXXXXX has been duly formed under the laws of the State of
Colorado; (ii) the execution of this Agreement and the performance of
XXXXXXXXX'X obligations hereunder does not require the consent of or
notice to any party not previously obtained or given, and, there is
nothing that prohibits or restricts the execution by XXXXXXXXX of this
Agreement or its performance of its obligations hereunder.
4.3 XXXXXXXXX'x Investment Representations. XXXXXXXXX acknowledges that the
Stock to be issued by the Company pursuant to this Agreement has not been
registered under the Securities Act, or any applicable state securities
laws, and is being offered and sold pursuant to exemptions from such
registration requirements based in part upon XXXXXXXXX'x representations
and acknowledgments contained in this Agreement, including the following:
(a) XXXXXXXXX warrants and represents to the Company that XXXXXXXXX is
acquiring the Stock on XXXXXXXXX'x own account for investment and
not with a view to or for sale in connection with any distribution
of the Stock or with any present intention of distributing or
selling the Stock and Participant does not presently have reason to
anticipate any change in circumstances or any particular occasion or
event which would cause XXXXXXXXX to sell the Stock;
(b) XXXXXXXXX acknowledges that XXXXXXXXX must bear the economic risk of
this investment indefinitely unless the Stock is registered pursuant
to the Securities Act and applicable state securities laws or an
exemption from such registration is available;
(c) XXXXXXXXX understands there is no assurance that any exemption from
registration under the Securities Act and applicable state
securities laws will be available in the future; and
(d) XXXXXXXXX represents that, by reason of XXXXXXXXX'x relationship
with the Company and XXXXXXXXX'x business and financial expertise,
XXXXXXXXX has the capacity to protect XXXXXXXXX'x own interests in
connection with the transactions contemplated by this Agreement.
5. COVENANTS
Each of XXXXXXXXX and the Company covenant that it will diligently,
skillfully and in good faith do and perform the acts and duties required
herein.
6. MISCELLANEOUS
6.1 Rights as a Stockholder. XXXXXXXXX shall have, with respect to the Stock,
all of the rights of a stockholder of the Company, including the right to
vote the Stock and the right to receive any dividends or other
distributions with respect thereto.
6.2 Validity of Share Issuance. The shares of Stock have been duly authorized
by all necessary corporate action of the Company and are validly issued,
fully paid and non-assessable.
6.3 Further Action. The parties agree to execute such further instruments and
to take such further action as reasonably may be necessary to carry out
the intent of this Agreement.
6.4 Notice. All notices, requests, demands, directions and other
communications ("Notices") provided for in this Agreement shall be in
writing and shall be mailed or delivered personally or sent by facsimile
to the applicable Party at the address of such Party set forth below in
this Section 6.4. When mailed, each such Notice shall be sent by first
class, certified mail, return receipt requested, enclosed in a postage
prepaid wrapper, and shall be effective on the third business day after it
has been deposited in the mail. When delivered personally, each such
Notice shall be effective on the first business day on which or after
which it is delivered to the address for the respective Party set forth in
this Section 6.4. When sent by facsimile, each such Notice shall be
effective on the first business day on which or after which it is sent.
Each such Notice shall be addressed to the Party to be notified as shown
below:
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THE COMPANY: China Agri-Business, Inc.
Attention: Xxxx Xxxxxx, President
00 Xxxxx Xxxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
XXXXXXXXX: XXXXXXXXX CORPORATE INVESTOR SERVICES LLC
Attention: Xxxxxxx X. Xxxxxxxxx, Managing Member
00 Xxxxxx Xxxxxx, Xxxxx 00
Xxxxxx, XX 00000
Fax: 0-000-000-0000
Either Party may change its respective address for purposes of this
Section 6.4 by giving the other Party Notice of the new address in the
manner set forth above.
6.5 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable
law. If any provision of this Agreement shall be or become prohibited or
invalid in whole or in part for any reason whatsoever, that provision
shall be ineffective only to the extent of such prohibition or invalidity
without invalidating the remaining portion of that provision or the
remaining provisions of this Agreement.
6.6 Non-Waiver. The waiver of any Party of a breach or a violation of any
provision of this Agreement shall not operate or be construed as a waiver
of any subsequent breach or violation of any provision of this Agreement.
6.7 Amendment. No amendment or modification of this Agreement shall be deemed
effective unless and until it has been executed in writing by the Parties
to this Agreement. No term or condition of this Agreement shall be deemed
to have been waived, nor shall there be any estoppel to enforce any
provision of this Agreement, except by a written instrument that has been
executed by the Party charged with such waiver or estoppel.
6.8 Inurement. This Agreement shall be binding upon all of the Parties, and it
shall benefit, respectively, each of the Parties, and their respective
employees, agents and successors. Except as expressly provided herein,
there are no third party beneficiaries to this Agreement, and this
Agreement shall not be assignable by any party.
6.9 Headings. The headings to this Agreement are for convenience only; they
form no part of this Agreement and shall not affect its interpretation.
6.10 Counterparts. This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute a single instrument.
6.11 Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled in Denver, Colorado by
arbitration (except as provided below), in accordance with the rules then
obtaining, of the American Arbitration Association (the "Association"). If
the subject of the arbitration involves an intellectual property,
corporate, or bankruptcy matter, as determined by the Association, then
the arbitrator(s) shall have had experience in that subject. The
Association is authorized to make arrangements for this arbitration, to be
held under these rules in any locality in the United States agreed upon by
the parties or as designated by the Association. In addition, in the event
of a dispute for which the aggrieved party seeks immediate equitable
relief, including without limitation an injunction, the appropriate action
may be brought in any court with appropriate jurisdiction, provided that
any such equitable relief shall be subject to modification by the court
after completion of arbitration of the dispute. This Agreement shall be
enforceable, and judgment upon any award rendered by all or a majority of
the arbitrators may be entered, in any court of any county having
jurisdiction.
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6.12 Choice of Law. This Agreement shall be construed in accordance with the
laws of the State of Colorado of the United States without regard to
conflicts of laws principles, and the parties agree to exclusive
jurisdiction in the State of Colorado.
IN WITNESS WHEREOF, the Parties have executed this Agreement, as of March
16, 2006.
CHINA AGRI-BUSINESS, INC.
By: /s/ Xxxx Xxxxxx
---------------
Xxxx Xxxxxx, President
XXXXXXXXX CORPORATE INVESTOR SERVICES LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx, Managing Member
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Xxxxxxxxx Corporate Investor Services LLC
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 000 Xxxxxx XX 00000
Fax: 0-000-000-0000
Xxxxx 00, 0000
Xxxxx Agri-Business, Inc.
Finance Plaza 0xx Xxxxx
Xx-xxxx Xxxx No. 42
Hi-tech Industrial Development Xxxx
Xx'xx, Xxxxxxx, XXXXX 000000
Tel: 000-00-00-00000000
Attn: Xxxxxx Xxxx
Dear Xx. Xxxx:
Reference is made to the Corporate Finance Advisory Services Agreement
between China Agri-Business, Inc. ("China Agri") and Xxxxxxxxx Corporate
Investor Services LLC (Xxxxxxxxx) dated March 16, 2007.
In consideration of the issuance of 10% of China Agri's par value $0.001
per share common stock ("Common Stock") to Xxxxxxxxx (or designees of Xxxxxxxxx)
based on the aggregate of the total outstanding shares of Common Stock before
China Agri's initial public offering and the maximum offering in the initial
public offering, the undersigned has agreed that it hereby irrevocably waives
the requirement that such share issuance should be on a fully diluted basis, as
stated under Clause 1.2 of the Agreement as well as any further anti-dilution
adjustments under Clause 1.2 in the future.
Very truly yours,
Xxxxxxxxx Corporate Investor Services LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxxx, Managing Director
Agreed and Accepted by
China Agri-Business, Inc.
/s/ Xxxxxx Xxxx
---------------
By: Xxxxxx Xxxx, President and CEO
