Exhibit 10.23
CONSULTING AGREEMENT
This agreement is entered into this 29th day of March 2004 by and between
Chardan China Acquisition Corp. ("Chardan"), a Delaware, United States
corporation, and Wuxi Glass Limited ("Wuxi Glass"), a BVI corporation. [NOTE:
Name subsequently changed to Best of the Best.]
RECITALS
Chardan is a publicly traded company that has as its stated purpose
identifying and engaging in a business combination with a Chinese business. In
order to do so, Chardan will require assistance in evaluating several Chinese
businesses as candidates for the business combination (the "Merger Candidates")
in order to select the most desirable one from among them.
Wuxi Glass is a Chinese consulting company that offers a variety of
services that will enable it to perform the evaluations of the Merger Candidates
for Chardan, among other things.
Chardan wishes to hire Wuxi Glass and Wuxi Glass wishes to be employed by
Chardan in order to perform evaluations of the Merger Candidates and other
services, all on the terms and conditions set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, the parties agree as follows:
1. Retention of Wuxi Glass as Consultant. Chardan hereby retains, and Wuxi
Glass hereby accepts, retention by Chardan, as a consultant.
2. Services to be Performed by Wuxi Glass. As consultant for Chardan, Wuxi
Glass shall perform the following services (the "Services"):
(a) Assisting Chardan in identifying potential Merger Candidates;
(b) Making sure that all confidentiality and no action letters
provided by Chardan (attached as Appendix A and Appendix B) are executed by each
Merger Candidate or advisor prior to entering into any negotiations;
(c) Compiling preliminary summary information regarding each Merger
Candidate (including Merger Candidates identified by parties other than Wuxi
Glass) of a type and in a form prescribed by Chardan that will enable Chardan to
select one or more Merger Candidates for more in depth analysis;
(d) Performing in-depth financial due diligence and analysis on
those Merger Candidates selected by Chardan in order to verify the accuracy and
completeness of the information provided and initially formatting that
information in a manner _____________;
(e) Recommending to Chardan, based on Wuxi Glass's knowledge of the
final Merger Candidate, the most desirable structure for the candidate and for
the business combination between Chardan and the candidate;
(f) Performing an evaluation of the information of the Merger
Candidate to assess its sufficiency for purposes of US corporate and securities
requirements for legal and accounting purposes;
(g) Assisting the Final Merger Candidate to meet the requirements
identified by lawyers and accountants in final preparation for the business
combination between Chardan and the final Merger Candidate; and
(h) Providing ongoing support to Chardan and the final Merger
Candidate through the merger process.
3. Compensation Paid to Wuxi Glass. The total compensation payable to Wuxi
Glass in exchange for the Services shall be the following:
(a) Total Compensation. The total compensation payable to Wuxi Glass
for all services rendered pursuant to this agreement shall be $250,000, payable
in accordance with the following schedule:
o $87,500 will be placed in a Chinese bank account within one
week after the execution of this agreement. The account shall
require a signature from an officer of Chardan and an officer
of Wuxi Glass on all checks and drafts. This amount shall be
disbursed in payments of $30,000, $30,000 and $27,500, the
first being payable two weeks after the execution of this
agreement and the second and third each two weeks following
the prior payment.
o $37,500 upon Chardan's hiring of an investment banker to
assist it in the business combination with the final Merger
Candidate or upon the public announcement of the intention to
engage in a business combination with the final Merger
Candidate. o $87,500 upon the approval by Chardan's
shareholders of the proposed business combination.
o $37,500 upon consummation of the approved business
combination.
In the event that the proposed business combination with the final Merger
Candidate is not completed, Wuxi Glass will remain obligated to continue
providing the Services to the extent necessary, until the shareholders of
Chardan approve a business combination between Chardan and a Merger Candidate.
Such ongoing services shall be provided without payment of additional
compensation by Chardan.
2
4. Representations and Warranties of Wuxi Glass. Wuxi Glass represents and
warrants that it has or will hire personnel that are capable of performing the
Services at a level acceptable to Chardan.
5. Termination. In the event that Chardan determines that Wuxi Glass
cannot provide the Services at an acceptable level, it may terminate this
agreement. In the event of such termination, Chardan shall be responsible only
for the amount of compensation due up to the date of the termination.
6. Expenses. The compensation provided for under Section 3, above, shall
be the total compensation payable to Wuxi Glass, including expenses it incurs in
connection with performing the services, except for the following expenses:
o Professional (legal and accounting) fees, unless the
professional is retained directly by Wuxi Glass, in which case
Wuxi Glass shall be responsible for such fees;
o International travel expenses, including meals, incurred at
the request of Chardan; and
o The difference between standard lodging costs and those
incurred by Wuxi Glass at the request of Chardan and for its
convenience.
IN WITNESS WHEREOF, the parties have set their hands and seals as of the
date first written above.
CHARDAN CHINA ACQUISITION CORP. WUXI GLASS LIMITED
By: /S/ Xxxxx Jiangnan By: /S/ Wu Xxxxx
Xxxxx Jiangnan Xx Xxxxx
Its: Chief Executive Its: Managing Director
First Modification to Consulting Agreement
Dated 29 March 2004
This First Modification ("Modification") to the Consulting Agreement dated
March 29, 2004 ("Agreement") by and between Chardan China Acquisition Corp.
("Chardan") and Best of the Best (formerly Wuxi Glass Limited) ("Consultant"),
dated June 16, 2005.
Chardan recognizes that the consulting activities of Consultant pursuant
to the Agreement have taken additional effort, time and expense on the part of
Consultant, and Chardan agrees to increase the compensation of Consultant under
the Agreement by the terms of this Modification for those efforts, time spent
and expenses and Consultant agrees to accept the additional compensation as set
forth herein in full satisfaction of the additional services provided and
expenses incurred.
The parties hereby agree that in addition to the cash compensation set
forth in the Agreement, Chardan will issue or cause its successor to issue to
Consultant, an aggregate of 200,000 shares of common stock of Chardan or its
successor, such shares to be restricted stock, without registration rights. The
shares will be issued upon consummation of a business combination by Chardan
with another entity, as described in its prospectus dated March 16, 2004. If
Chardan does not consummate such a business combination, Chardan will have no
obligation to issue the shares. Consultant hereby represents that it is an
accredited investor, as that term is defined under Regulation D under the United
States securities laws, and that it is accepting the additional compensation
shares for its own investment and not with a view towards distribution or
resale, and that it has received information about Chardan and the transactions
contemplated by Chardan, including a copy of Registration Statement 333.124705.
Consultant hereby agrees that the share certificate may bear a restrictive
legend and there may be stop transfer instructions on the shares.
Consultant hereby agrees that in respect of the obligations that may be
due by Chardan to Consultant, Consultant hereby waives all right to any of the
moneys in the trust fund maintained by Chardan holding certain of the proceeds
of its initial public offering, and that Consultant hereby agrees that it will
not attempt to obtain, directly or indirectly, any of those funds for any
reason, for itself or for any other person or entity. Consultant agrees that it
will not pursue any legal or administrative action or attempt to register any
lien or charge against the trust fund in any jurisdiction. This letter will be
deemed admissible evidence of its waiver and agreement not to pursue any claim
that would result in either a direct or indirect demand, claim, lien or charge
on the trust fund or the monies therein.
This Modification is hereby agreed and executed the date indicated
above.
Chardan China Acquisition Corp.
By /S/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx,
Chairman
Best of the Best
By /S/ Xx Xxxxx
Xx Xxxxx
Managing Director
First Modification to Consulting Agreement
Dated 29 March 2004
This First Modification ("Modification") to the Consulting Agreement
dated March 29, 2004 ("Agreement") by and between Chardan China Acquisition
Corp. ("Chardan") and Best of the Best (formerly Wuxi Glass Limited)
("Consultant"), dated June 16, 2005.
Chardan recognizes that the consulting activities of Consultant
pursuant to the Agreement have taken additional effort, time and expense on the
part of Consultant, and Chardan agrees to increase the compensation of
Consultant under the Agreement by the terms of this Modification for those
efforts, time spent and expenses and Consultant agrees to accept the additional
compensation as set forth herein in full satisfaction of the additional services
provided and expenses incurred.
The parties hereby agree that in addition to the cash compensation set
forth in the Agreement, Chardan will issue or cause its successor to issue to
Consultant, an aggregate of 200,000 shares of common stock of Chardan or its
successor, such shares to be restricted stock, without registration rights. The
shares will be issued upon consummation of a business combination by Chardan
with another entity, as described in its prospectus dated March 16, 2004. If
Chardan does not consummate such a business combination, Chardan will have no
obligation to issue the shares. Consultant hereby represents that it is an
accredited investor, as that term is defined under Regulation D under the United
States securities laws, and that it is accepting the additional compensation
shares for its own investment and not with a view towards distribution or
resale, and that it has received information about Chardan and the transactions
contemplated by Chardan, including a copy of Registration Statement 333.124705.
Consultant hereby agrees that the share certificate may bear a restrictive
legend and there may be stop transfer instructions on the shares.
Consultant hereby agrees that in respect of the obligations that may be
due by Chardan to Consultant, Consultant hereby waives all right to any of the
moneys in the trust fund maintained by Chardan holding certain of the proceeds
of its initial public offering, and that Consultant hereby agrees that it will
not attempt to obtain, directly or indirectly, any of those funds for any
reason, for itself or for any other person or entity. Consultant agrees that it
will not pursue any legal or administrative action or attempt to register any
lien or charge against the trust fund in any jurisdiction. This letter will be
deemed admissible evidence of its waiver and agreement not to pursue any claim
that would result in either a direct or indirect demand, claim, lien or charge
on the trust fund or the monies therein.
This Modification is hereby agreed and executed the date indicated
above.
Chardan China Acquisition Corp.
By /S/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx,
Chairman
Best of the Best
By ?S/ Xx Xxxxx
Xx Xxxxx
Managing Director
