Exhibit 10.4
CONSULTING AND MANAGEMENT AGREEMENT
Consulting and Management Agreement ("Agreement") made this 24th day of
August 2005 by Linkwell Corporation., organized and existing under the laws of
Florida State ("Linkwell" or "Company") and China Direct Investments, Inc.
existing under the laws of Florida State ("CDI" or "Consultant").
W I T N E S S E T H:
A. Linkwell Corp desires to engage the services of Consultant as its
representative in the United States. As the U.S. representative, Linkwell Corp
will look to the Consultant for advice as it relates to general business affairs
and customs in the United States.
Consultant is desirous of performing such services on behalf of Linkwell
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. Translation of Chinese/English documents
iii. Management of professional resources, (i.e. legal, accounting, transfer
agent, public relations services)
iv. Identification, evaluation and structure of potential mergers
and acquisitions
v. Assist in the creation of marketing and sales plans
vi. Manage investor road shows/investment conferences
vii. Coordinate of public disclosures
viii. Advice on corporate structure and capital events (i.e. divestitures,
spin-offs joint ventures)
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 twelve (12) months upon
the mutual agreement of both Linkwell and the Consultant.
3. Compensation. Linkwell shall pay the following compensation to Consultant in
consideration for the services to be rendered hereunder:
a There shall be issued to Consultant 2,000,000 shares of Common Stock, $.0005
par value (the "Shares"), in consideration for the agreement to provide services
to be performed hereunder.
b There shall be issued to Consultant Warrants to purchase an aggregate of
2,125,000 shares of Common Stock, $.0005 par value (the "Warrants"), of Linkwell
Corporation. 2,125,000 Warrants shall be issued in January 2006. Each Warrant
shall be exercisable at a price per share of Common Stock of $.20; each Warrant
expires thirty six months following the date of its specific issuance;
c Discretionary Award Fees. At the discretion of the Company, this agreement
provides for the payment of fees payable to the Consultant. At the mutual
agreement of Linkwell and the Consultant, Linkwell can pay to Consultant fees in
either readily available funds or other marketable securities.
d 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
e 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.
f Following any consummated transaction (as hereinafter defined) by Linkwell or
an Affiliate (as hereinafter defined), at the written request of Linkwell,
Consultant shall assist, subject to the direction of Linkwell 's 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.
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. Registration. Linkwell agrees to provide Consultant with piggyback
registration rights for all securities issued to Consultant pursuant to this
Agreement at Linkwell 's cost and expense and include the Shares and the Shares
underlying all Warrants and/or options in a registration statement to be filed
by Linkwell with the Securities and Exchange Commission.
5. 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.
6. Termination. Either party may terminate this Agreement upon the giving of
thirty (30) days' prior written notice, but no such termination shall affect the
fees payable pursuant to Paragraphs 3 hereof.
7. Subcontractors. This Agreement shall be assignable by Consultant solely upon
the consent of Consultant. Linkwell acknowledges that from time to time,
Consultant may enlist a subcontractor to perform some of the services provided
to Customer. 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 Linkwell, to
monitor the performance of services to be provided by any third party.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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 Linkwell. Such transaction may be
acquired at a price and upon terms and conditions more or less favorable than
those offered to Linkwell.
14. Disclaimer. Consultant acknowledges that he has relied upon the information
provided by Linkwell. Consultant has in entering into this Agreement, relied on
the warranties or representations made by Linkwell, its officers, directors,
agents, legal counsel or accountants concerning Linkwell and/or its stock as to
matters past, present or future.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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:
Consultant: Company:
▇▇▇▇▇ ▇▇▇▇, PhD. ▇▇. ▇▇▇ ▇▇▇▇ ▇▇▇▇
CEO, Eastern Operations Chief Executive Officer
China Direct Investments, Inc. Linkwell Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ No. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Baoshan District
▇▇▇.▇▇▇.▇▇▇▇ phone ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇.▇▇▇.▇▇▇▇ Fax (▇▇) ▇▇-▇▇▇▇▇▇▇▇
▇▇▇▇▇@▇▇▇▇.▇▇▇ email
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
Linkwell Corporation China Direct Investments, Inc.
[Sign name] [Sign name]
▇▇▇ ▇▇▇▇ Bian ▇▇▇▇▇ ▇▇▇▇
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[Print name] [Print name]
CEO CEO,
Eastern Operations
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[Title] [Title]
8/28/2005 8/28/2005
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[Date] [Date]
