CONSULTING AND MANAGEMENT AGREEMENT
This
Consulting and Management Agreement (“Agreement”) is made as of this 8th day of April,
2009 by and between China America Holdings, Inc., a Florida corporation
(“Client”), and China Direct Investments, Inc., a Florida corporation
(“Consultant”). Client and Consultant may collectively be referred to
as the “Parties”.
W
I T N E S S E T H:
WHEREAS,
Client desires to engage the services of Consultant as its representative in the
United States and to provide Client with the services as more fully set forth in
this Agreement; and
WHEREAS,
Consultant is desirous of performing such services on behalf of
Client.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained in
this Agreement, the parties hereto agree as follows:
1. Consulting
Services. Upon the terms and subject to the conditions
contained in this Agreement, Consultant hereby agrees that it shall, during the
term of this Agreement, undertake the performance of the following services (the
“Services”):
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a.
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Familiarize
itself, to the extent appropriate and feasible, with the business,
operations, properties, financial condition, management and prospects of
Client;
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b.
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Advise
Client on matters relating to its
capitalization;
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c.
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Evaluate
alternative financing structures and arrangements and potential sources of
investment capital;
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d.
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Assist
Client in developing appropriate acquisition criteria and identifying
target industries;
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e.
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Identify,
evaluate, structure and provide advice in connection with potential
mergers and acquisitions, divestitures, spin-offs, joint ventures and
other corporate transactions;
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f.
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Assist
Client in evaluating and make recommendations concerning the relationships
among Client's various lines of business and potential areas for business
growth;
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g.
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Assist
with translation of documents
(Chinese/English);
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h.
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Manage
and enter into contracts for professional resources on behalf of and as
required by Client in its U.S. operations and regulatory compliance (i.e.
legal, accounting, auditing, transfer agent, public relations services and
such other services mutually agreed on by the
Parties);
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i.
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Assist
in the creation of marketing and sales
plans;
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j.
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Manage
investor road shows/investment
conferences;
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k.
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Coordinate
the preparation and filing of all required public disclosures as required
by the Securities and Exchange Commission and such other governmental and
regulatory agencies in the United States and in each state where Client
maintains an office or is required to comply with state laws in the United
States;
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l.
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Provide
assistance in financial management and the implementation of internal
controls;
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m.
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Maintain
Client’s U.S. representative offices;
and
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n.
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Provide
such other services upon which the Parties may mutually
agree.
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2. Term. The Agreement
shall be for a term of twelve (12) months from January 1, 2009 to December 31,
2009. This Agreement may be extended for an additional twelve (12) months by
Client upon the mutual agreement of both Client and the Consultant and the
payment of additional compensation to be agreed on by the Parties.
3. Consulting Fees and
Expenses. Client shall pay Consultant for providing the Services the
following compensation and reimbursement of expenses (the “Consulting Fees and
Expenses”):
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Client
shall issue Consultant a total of 20,000,000 shares of Client’s Common Stock,
$0.001 par value (the “Shares”) which shall be earned and issued as
follows:
(i) 5,000,000
Shares shall be earned for services provided from January 1, 2009 through March
31, 2009 and issued on March 31, 2009;
(ii)
5,000,000 Shares shall be earned for services provided from April 1, 2009
through June 30, 2009 and issued on June 30, 2009;
(iii)
5,000,000 Shares shall be earned for services provided from July 1, 2009 through
September 30, 2009 and issued on September 30, 2009; and
(iv)
5,000,000 Shares shall be earned for services provided from October 1, 2009
through December 31, 2009 and issued on December 31, 2009.
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a.
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Award Fees. This
agreement provides for the payment of discretionary award fees to be paid
to Consultant and/or its designees. Upon the mutual agreement
of the Parties, Client can pay to Consultant fees in either cash or other
marketable securities.
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b.
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Expenses. All
costs and expenses necessary for the legal, accounting, transfer agent,
public relations services and other professional services necessary in the
operation of Client’s business in the U.S., travel and living expenses,
copying and shipping expenses and other costs and expenses incurred in
connection with any transactions contemplated by this Agreement (the
“Expenses”). The Expenses shall be paid by Client either
directly to the provider of such service or if paid or incurred by
Consultant, such amount shall be paid to
Consultant.
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4.
Information. In connection with Consultant providing Services
hereunder, Client will cooperate with Consultant and furnish Consultant upon
request with all information regarding the business, operations, properties,
financial condition, management and prospects of Client (all such information so
furnished being the “Information”) which Consultant deems appropriate and will
provide Consultant with access to Client's officers, directors, employees,
independent accountants and legal counsel. Client represents and
warrants to Consultant that all Information made available to Consultant in
connection with the performance of the Services under this Agreement will be
complete and correct in all material respects and will not contain any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in light of the circumstances
under which such statements are or will be made. Client further
represents and warrants that any projections and other forward-looking
information provided by it to Consultant will have been prepared in good faith
and will be based upon assumptions which, in light of the circumstances under
which they are made, are reasonable. Client recognizes and confirms
that Consultant: (i) will use and rely primarily on the Information
and on information available from generally recognized public sources in
performing the services contemplated by this Agreement without having
independently verified the same; and (ii) does not assume responsibility for the
accuracy or completeness of the Information and any reports or other filings
made by Client with the U.S. Securities and Exchange Commission.
5. Warranties. Consultant
warrants that the Services to be provided under this Agreement shall be
performed by qualified personnel in a professional manner employing reasonable
commercial efforts. This warranty shall be valid for a period of
thirty (30) days from the performance of the Services. Except as
specifically provided in this Section 4, Consultant disclaims any and all other
warranties with respect to the services provided hereunder, including without
limitation any implied warranty of merchantability or fitness for a particular
purpose. Consultant does not warrant the results of any services. In addition,
Client acknowledges and agrees that Consultant is not engaged in the practice of
law or the provision of legal services, and that Client alone is completely and
independently responsible for compliance with all state, federal and
international laws applicable to Client and the operation of its
business. Consultant’s entire liability to Client (or any other
person or entity) for any loss or damages resulting from any breach of this
Agreement, claims, demands or actions arising out of or relating to the
Services, whether in contract, tort (including negligence) or otherwise, shall
not exceed the sum of $5,000. In no event will Consultant or its
affiliates be liable for any damages caused by the Client's action or inaction,
or for any indirect, incidental, consequential, special, punitive or exemplary
damages or lost profits, including, but not limited to, damages for loss of
business profits, business interruption, loss of business information, data,
goodwill or other pecuniary loss arising from Consultant’s failure to provide
the Services even if Consultant has been advised of the possibility of such
damages.
6. Indemnification. Client
agrees to indemnify and hold the Consultant and its subsidiaries and their
respective officers, directors, employees and agents and (collectively, the
“Consultant Indemnitees”) harmless from all Consultant Indemnified
Liabilities. For this purpose, “Consultant Indemnified Liabilities”
shall mean all suits, proceedings, claims, expenses, losses, costs, liabilities,
judgments, deficiencies, assessments, actions, investigations, penalties, fines,
settlements, interest and damages (including reasonable attorneys’ fees and
expenses), whether suit is instituted or not and, if instituted, whether at any
trial or appellate level, and whether raised by the parties hereto or a third
party, incurred or suffered by the Consultant Indemnitees or any of them arising
from, in connection with or as a result of Consultant’s performance or
non-performance of the Services set forth in this Agreement and a breach of any
of Client’s representations under this Agreement.
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7. Termination.
Consultant may terminate this Agreement at any time by providing Client 30 days
prior written notice, it being understood by the Parties that at the time of
such termination, all amounts due hereunder up to the date of termination shall
be paid in full by Client to Consultant. Client may terminate this
Agreement only for Consultant’s breach of a material term or condition of this
Agreement if Consultant does not cure the breach within thirty (30) days after
receiving written notice from Client describing the material
breach. In no event shall the Party exercising its right under this
Section 7 be precluded by the exercise of such termination right from pursuing,
subject to the terms of this Agreement and applicable law, any cause of action
or other claim it may then or at any time thereafter have against the other
Party in respect of any breach or default by the other Party hereunder. From and
after termination of this Agreement, the Parties shall continue to be bound by
such provisions of this Agreement as by their nature survive such events,
including, without limitation, Sections 4, 6 and 12.
8. Assignment and
Subcontractors. This Agreement shall be assignable by Consultant. Client
acknowledges that from time to time, Consultant may enlist a subcontractor to
perform some of the Services provided to Client. In the event services to be
performed as outlined in this Agreement are subcontracted to a third party, the
third party shall accept responsibility for the performance of such activities.
Consultant will cease to bear any responsibility related to the performance of
subcontracted services; however the Consultant will act as liaison between the
subcontractor and Client, to monitor the performance of services to be provided
by any third party.
9. Modifications. This
Agreement can only be modified by a written agreement duly signed by persons
authorized to sign agreements on behalf of Client and Consultant, and variance
from or addition to the terms and conditions of this Agreement or other written
notification will be of no effect. The failure of any Party to
enforce any right it is granted herein, or to require the performance by the
other Party hereto of any provision of this Agreement, or the waiver by any
Party of any breach of this Agreement, shall not prevent a subsequent exercise
or enforcement of such provisions or be deemed a waiver of any subsequent breach
of this Agreement.
10. Entire
Understanding. This Agreement represents the entire
understanding and agreement between the Parties with respect to the subject
matter hereof, and merges all prior discussions between them and supersedes and
replaces any and every other agreement or understanding which may have existed
between the Parties to the extent that any such agreement or understanding
relates to providing services to Client. To the extent, if any, that the terms
and conditions of Client’s orders or other correspondence are inconsistent with
this Agreement, this Agreement shall control.
11. Force
Majeure. No delay, failure or default in performance of any
obligation by either Party, excepting all obligations to make payments
hereunder, shall constitute a breach of this Agreement to the extent caused by,
in whole or in part, the other Party (and within the other party’s reasonable
control) or an act of God, war, civil disturbance, terrorist act, court order,
labor dispute, or other cause beyond its reasonable control, and such
nonperformance will not be a default under this Agreement.
12. Laws, Severability, Venue,
Waivers. The validity of this Agreement and the rights,
obligations and relations of the Parties hereunder shall be construed and
determined under and in accordance with the laws of the State of Florida,
without regard to conflicts of law principles thereunder provided, however, that
if any provision of this Agreement is determined by a court of competent
jurisdiction to be in violation of any applicable law or otherwise invalid or
unenforceable, such provision shall to such extent as it shall be determined to
be illegal, invalid or unenforceable under such law be deemed null and void, but
this Agreement shall otherwise remain in full force. Suit to enforce
any provision of this Agreement, or any right, remedy or other matter arising
therefrom, will be brought exclusively in the state or federal courts located in
Broward County, Florida. Client agrees and consents to venue in
Broward County, Florida and to the in personam jurisdiction of these courts and
hereby irrevocably waives any right to a trial by jury.
13. 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.
14. 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 Client. Such transaction may be acquired at a price
and upon terms and conditions more or less favorable than those offered to
Client.
15. Disclaimer.
Consultant acknowledges that it has and will during the term of this Agreement,
rely upon information provided by Client in connection with the performance of
the Services and in accepting the Client’s securities as full or partial payment
of the Consulting Fees under this Agreement.
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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:
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Consultant:
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Client:
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China
Direct Investments, Inc.
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Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attn.
General Counsel
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▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ Economic & ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
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Fax:
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Attn.
Shaoyin Wang
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17. Controlling Language,
Currency. This Agreement is in the English language only,
which language shall be controlling in all respects. Translation, if any, of
this Agreement into any foreign language shall not be of any force or effect in
the interpretation of this Agreement or in the determination of the intent of
the Parties. All calculations and determinations of dates and time periods under
this Agreement shall be by reference to the date and local time in Deerfield
Beach, Florida, at which any relevant event occurs and not the date and local
time at the actual place in the world at which the relevant event in fact
occurs. All fees and other monetary amounts referenced in or payable under this
Agreement shall be in U.S. Dollars. Each Party undertakes to obtain from its
respective government whatever authorization, approvals, licenses or permits are
required in order for it to perform all its obligations under this Agreement in
accordance with its terms.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
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Client:
By:
__/s/ Shaoyin
Wang___________
Name:
___ Shaoyin Wang
__________
Title:
___CEO____________________
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Consultant:
China
Direct Investments, Inc.
By:
___/s/ ▇▇▇▇▇ Wang_________________
Name:
__ ▇▇▇▇▇ ▇▇▇▇ ______________
Title:
____ CEO
______________________
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