EXHIBIT 10.28
CONSULTING AND MANAGEMENT AGREEMENT
Consulting Agreement ("Agreement") made this 31st day of December 2006
by and between China Direct Investments, Inc., a Florida corporation
("Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual residing at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Consultant").
W I T N E S S E T H:
A. China Direct Investments, Inc. desires to engage the services of Consultant
as a subcontractor. As subcontractor, China Direct Investments, Inc. will look
to the Consultant for introductions and advice as it relates to the general
business activities of the Company.
Consultant is desirous of performing such services on behalf of China Direct
Investments, Inc.
B. NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, the parties hereto agree as follows:
1. CONSULTING SERVICES.
a. Upon the terms and subject to the conditions contained in this
Agreement, Consultant hereby agrees that he shall, during the term of this
Agreement, will undertake the performance of services as outlined in this
Agreement.
b. Upon the terms and subject to the conditions contained in this
Agreement, Consultant hereby agrees that he shall, during the term of this
Agreement, will support the Company in the following areas:
i. General business consulting
ii. Identification, evaluation and structure of potential mergers and
acquisitions
2. TERM. The Agreement shall be for a term of twelve (12) months from the
date hereof. This Agreement may be extended for an additional six (6) months
upon the mutual agreement of both Company and the Consultant.
3. COMPENSATION. Company shall pay the following compensation to Consultant
in consideration for the services to be rendered hereunder:
a. Company shall issue Consultant options to purchase Common Stock, as
follows pursuant to section 3. e. below:
Amount Ex Price
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 1,000,000 $ 0.30
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 100,000 $ 2.50
b. For M&A work performed on transactions introduced by the Company,
Consultant agrees to accept a fee as it relates to the transaction value. The
formula for compensation shall be as follows: 5% of the gross transaction value;
For example: The Company issues 100,000 shares of common stock as consideration
for a transaction, the Company will issue to the Consultant.
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c. For work performed on transactions introduced by the Company,
Consultant and Company shall mutually agree on the compensation (if any) to be
paid to Consultant for services to be provided in coordination with the
transaction introduced by the Company.
d. Following any consummated transaction (as hereinafter defined) by
Company or an Affiliate (as hereinafter defined), at the written request of
Company, Consultant shall assist, subject to the direction of the Board of
Directors, with the management and day-to-day operations of such Transaction. In
this event the Company and the Consultant shall mutually agree on the fess for
such services.
e. Company shall reserve for the Consultant options to purchase 1,000,000
shares of CDI at $0.30 per share and 100,000 shares of CDI at $2.50 per share.
The options being granted pursuant to this agreement are in consideration of
future services to be rendered by the Consultant to the Company. Accordingly,
the aforementioned options shall be null and void unless the Consultant joins
the Company on or before February 1st, 2007 as an employee. Upon the occurrence
of that event, the options shall be issued to the consultant and become fully
vested and exercisable in accordance with their terms.
All fees under the M&A relationship will be paid in cash or shares of common
stock at the option of the Consultant. In the event the Consultant agrees to
accept stock options as a form of payment, all options shall have a cashless
exercise provision.
4. INDEMNIFICATION. Consultant shall not be liable to the Company or to any
officer, director, employee, stockholders, or creditor of the Company, for any
act or omission in the course of or in connection with the provision of advice
or assistance hereunder. The Company agrees to and shall defend, indemnify and
hold China Direct Investments, Inc. harmless from and against any and all suits,
claims, demand, causes of action, judgment damages, expenses and liability
(including court costs and attorney's fees paid in the defense of China Direct
Investments, Inc.) which may in any way result from services provided by China
Direct Investments, Inc. pursuant to or in connection with this Agreement.
5. ENTIRE AGREEMENT. This Agreement contains the entire agreement among the
parties with respect to the subject matter hereof and supersedes all prior
agreements, written or oral, with respect thereto.
6. WAIVERS AND AMENDMENTS. This Agreement may be amended, modified,
superseded, cancelled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any right,
power or privilege hereunder, nor any single or partial exercise of any right,
power or privilege hereunder, preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder. The rights and
remedies herein provided are cumulative and are not exclusive of any rights or
remedies which any party may otherwise have at law or in equity.
7. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida applicable to agreements made
and to be performed entirely within such State.
8. SEVERABILITY OF PROVISIONS. The invalidity or unenforceability of any
term, phrase, clause, paragraph, restriction, covenant, agreement or other
provision of this Agreement shall in no way affect the validity or enforcement
of any other provision or any part thereof.
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9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall consider but one and the same document.
10. OTHER ACTIVITIES. Nothing contained herein shall prevent Consultant from
acquiring or participating in a transaction of any kind with any other entity
proposed by Consultant to be acquired by Company. Such transaction may be
acquired at a price and upon terms and conditions more or less favorable than
those offered to Company.
11. DISCLAIMER. Consultant acknowledges that he has relied upon the
information provided by Company. Consultant has in entering into this Agreement,
relied on the warranties or representations made by Company, its officers,
directors, agents, legal counsel or accountants concerning Company and/or its
stock as to matters past, present or future.
12. NATURAL DISASTER. In the event that any obligation of either party is
prevented or delayed by circumstances of natural disaster, such party will be
excused from any failure to perform any such obligation under this Agreement to
the extent that such failure is caused by any such circumstances.
13. NON-SOLICITATION OF CONSULTANT'S EMPLOYEES: Company agrees not to
knowingly hire or solicit Consultant's employees during performance of this
Agreement and for a period of two years after termination of this Agreement
without Consultant's written consent.
14. MEDIATION AND ARBITRATION: If a dispute arises under this Agreement, the
parties agree to first try to resolve the dispute with the help of a mutually
agreed-upon mediator in Palm Beach County, FL. Any costs and fees other than
attorney fees associated with the mediation shall be shared equally by the
parties. If the dispute is not resolved through mediation, the parties agree to
submit the dispute to binding arbitration in Florida under the rules of the
American Arbitration Association. Judgment upon the award rendered by the
arbitrator may be entered in any court with jurisdiction to do so.
15. ATTORNEY FEES: If any legal action is necessary to enforce this
Agreement, the prevailing party shall be entitled to reasonable attorney fees,
costs and expenses.
16. NOTICES. All notices to be given hereunder shall be in writing, with fax
notices being an acceptable substitute for mail and/or and delivery to:
Company: Consultant:
▇▇▇▇▇ ▇▇▇▇, PhD. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CEO, Eastern Operations ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ Direct Investments, Inc. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇.▇▇▇.▇▇▇▇ phone
▇▇▇.▇▇▇.▇▇▇▇ Fax
▇▇▇▇▇@▇▇▇▇.▇▇▇ email
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CHINA DIRECT INVESTMENTS, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇
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[Sign name] [Sign name]
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
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[Print name] [Print name]
Individual CEO, Eastern Operations
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[Title] [Title]
12/29/2006 12/29/2006
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[Date] [Date]
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