EXHIBIT 10.8
INDEPENDENT CONTRACTOR AGREEMENT
This Agreement is entered into by and between:
1. XXXXXX Group Ltd, a Hongkong corporation, located at Xxxxx 000, Xxxx Xxxx
Xxxxxx, 00 Xxxxxxxx Xxxxxx, Xxxxxxx, Hongkong, or its designated
affiliates, herein referred to as "XXXXXX"; and
2. China Digital Distribution Limited, a BVI corporation, located at Kingston
Chamber, P.O. Box 173, Road Town, Tortola, British Virgin Island, herein
referred to as "CONTRACTOR".
WHEREAS:
XXXXXX agrees to employ the services of CONTRACTOR and CONTRACTOR accepts to
provide his services to XXXXXX, under the following terms and conditions.
3. TERM: The term of this agreement is one (1) years, starting January 1st,
2005 through December 31st, 2005;
4. DUTIES: The services provided by CONTRACTOR will be as follows: (a)
locating potential clients (b) handling the negotiation (c) concluding the
transaction (d) servicing the clients' needs and (e) ensuring the
performance of the obligations of client and XXXXXX. Additional duties
might be required as agreed by both parties. CONTRACTOR will devote the
best efforts in and to the faithful performance of the duties assigned by
XXXXXX.
5. COMPENSATION:
In consideration of the services to be rendered by CONTRACTOR as assigned
by XXXXXX, XXXXXX shall pay an annual compensation and benefits based on
the net income generated by CONTRACTOR per each client, not withstanding
the termination of this contract, as follows:
a) Cash payment is calculated at 33.33% of the net income received by
XXXXXX as a result of CONTRACTOR's services. The payments will be made
according to the schedule of payments actually received by XXXXXX;
b) In addition, CONTRACTOR will be issued an option to purchase XXXXXX
restricted common shares on the same date as the issuance of shares
per completion of the deal. The amount of option shares will equal to
the total shares issued for the deal multiplied by the average share
price of 30 trading days before completion (in USD) or the closing
price on the date of completion, whichever is higher. For example, if
CONTRACTOR signed a deal to issue two million shares and the average
price of 30 trading days before completion is 0.21 and the price on
the date of completion is 0.19, CONTRACTOR will be awarded a total of
0.42 million option shares at the exercise price of $0.21 a share,
which is higher of the average closing price of 30 trading days and
the closing price on the date of completion;
c) The option shall satisfy a vesting period before it can be exercised.
The vesting period for the first one third of options is one year from
date of issuance, two years for the second one third of options and
three years for the third one third options. The option will be valid
for a 3 year period from the end of respective vesting period. Should
the client ends the service contract with Xxxxxx before the vesting
period is over, the remaining unvested options will be cancelled. For
example, if the client ends the service contract in the second year,
the remaining two third of the options will be cancelled. Should the
client ends the service contract in the fourth year, no options will
be cancelled regardless the options are exercised;
d) CONTRACTOR will be entitled to reimbursement for all reasonable
expenses incurred by him in connection with the performance of his
duties, upon presentation of expense reports according to XXXXXX'x
corporate regulation regarding expenses.
e) CONTRACTOR will be entitled to participate and receive extra benefits
as other XXXXXX employees in a similar CONTRACTOR position, and in
accordance with the benefit plans or programs set forth by the Board
of Directors in the past, now or in the future.
6. TERMINATION: XXXXXX or CONTRACTOR may terminate this Agreement unilaterally
by giving advance notice to the other party 60 days in advance. CONTRACTOR
shall be entitled to all accrued compensation and benefits prorated to the
date of termination.
7. COVENANT NOT TO COMPETE: CONTRACTOR agrees that during the term of his
employment, he will not, directly or indirectly, have any ownership
interest of five percent or more in a corporation, firm, trust, association
or other entity which is in competition with XXXXXX
8. INDEPENDENT CONTRACTOR. It is expressly agreed that CONTRACTOR is acting as
an independent contractor in performing its services hereunder. XXXXXX
shall carry no workers compensation insurance or any health or accident
insurance on CONTRACTOR. XXXXXX shall not pay any contributions to social
security, unemployment insurance, any withholding taxes nor provide any
other contributions or benefits that might be customary in an
employer-employee relationship.
9. PROPRIETARY INFORMATION
a) For purposes of this Agreement, "proprietary information" shall mean
any information relating to XXXXXX'X business that has not previously
been publicly released by XXXXXX; and shall include, but not limited
to, inventions, computer codes, software, note, written concepts,
drawings, designs, plans, proposals, marketing and sales plans,
financial information, customer information and other date, methods,
concepts, ideas reasonably related to XXXXXX'X business.
b) CONTRACTOR agrees to regard and preserve as confidential all
proprietary information obtained during or prior to his employment
term. CONTRACTOR will not use this information for his benefit or
purpose nor disclose same to others.
c) CONTRACTOR agrees not to remove from XXXXXX'X premises, except in
pursuing his employment duties or by written consent of the Board of
Directors, any documents or objects containing proprietary information
CONTRACTOR recognizes that all such documents or objects, whether
developed by him or others are the exclusive property of XXXXXX.
d) All client information and correspondences during the employment
period shall be considered property of XXXXXX and CONTRACTOR must
promptly return to XXXXXX upon termination of this agreement.
CONTRACTOR will not be bound by the foregoing limitation in the event
(i) the Information is otherwise disseminated and becomes public
information or (ii) CONTRACTOR is required to disclose the Information
pursuant to a subpoena or other judicial order.
10. NOTICES: Any notices required or permitted to be given here under shall be
in writing and shall be delivered by prepaid registered or certified mail,
return receipt requested. The address for notices shall be the same as per
the first paragraph of this Agreement.
11. GOVERNING LAW; ENTIRE AGREEMENT:
This Agreement shall be construed according to the laws of Hong Kong; and
constitutes the entire understanding between the parties, superseding and
replacing all prior understandings and agreements. This Agreement cannot be
changed, amended or terminated except by written agreement signed by both
parties. If any of the provisions of this Agreement is invalid or
unenforceable, the remainder of this Agreement shall nevertheless remain in
full force and effect.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
Agreement on the 1st day of January, 2005 in Hong Kong .
XXXXXX GROUP LTD. CONTRACTOR:
By:
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Date Signed:________________ Date Signed:_______________
