CONSULTING AGREEMENT
THIS AGREEMENT is dated the 1ST day of October, 2004.
BETWEEN:
Aquasol EnvironTech Ltd. a company incorporated
Pursuant to the laws of Cayman Island,
With an office located at 1980 - 0000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, X.X. X0X 0X0
(herein the "Company")
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XXXX YENYOU ZHENG
000 - 000 Xxxxxxxxx Xxxxxx,
Xxxxxxxxx, X.X. X0X 0X0
(herein the "Consultant")
WHEREAS the Company desires to engage the Consultant as President of the
Company, to render various services to the Company upon the terms and conditions
contained herein;
NOW THEREFORE it is hereby agreed as follows:
1. Services
The Company agrees to engage the Consultant to provide the services
described and to act as President to deal with daily operating issues
and to provide the Company with such other consulting services as the
Company and the Consultant have agreed to perform and provide such
services (collectively the "Services").
2. Term
Except as otherwise provided in this Agreement, the Company agrees to
engage the Consultant on a full time basis to provide the Services for
a term commencing October 1, 2004.
3. Fee
(a) The Company agrees to pay the Consultant a fee of Cdn$3,000.00
per month for any Services provided by the Consultant under
the Agreement.
(b) The Company shall provide a dental plan to the Consultant.
(c) The Company shall issue the Consultant reasonable option
shares of the Company, which will be determined by the Board
of the Company after the IPO is completed.
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4. Expenses
The Company shall pay for or reimburse the Consultant for all
reasonable, ordinary and necessary expenses incurred by the Consultant
in the ordinary course of performing the Services upon presentation of
proper accounts, statements, invoices or receipts for such items.
5. Independent Contractor
The Consultant's relationship with the Company as created by this
Agreement is that of an independent contractor for the purposes of the
Income Tax Act (Canada) and any similar provincial taxing legislation.
It is intended that the Consultant shall have general control and
direction over the manner in which its services are to be provided to
the Company under this Agreement. Nothing contained in this Agreement
shall be regarded or construed as creating any relationship (whether by
way of employer/employee, agency, joint venture, association, or
partnership) between the parties other than as an independent
contractor as set forth herein.
6. Authority
The Consultant acknowledges that it is being retained as a consultant
to the Company and that as such it does not have the authority and
cannot commit or bind the Company to any matter, contract or
negotiation without the prior written authorization of the Company.
7. Compliance
(a) The Consultant shall comply with all applicable federal,
provincial and municipal laws, rules and regulations arising
out of or connected with the performance of the Services under
this Agreement by the Consultant or its employees.
(b) The Consultant shall be responsible for all Unemployment
Insurance Contributions, Canada Pension Plan contributions,
Income Tax and Workers' Compensation payments relating to or
arising out of the fees paid to the Consultant under this
Agreement and the Services performed by the Consultant or its
employees. Payments relating to any of the above shall be the
responsibility of the Consultant and shall be forwarded by the
Consultant as appropriate, directly to the government agencies
involved. Proof of compliance with the requirement shall be
available to the Company upon request.
(c) In the event that any taxing authority, for whatever reason,
seeks from the Company any Unemployment Insurance Contributions,
Canada pension Plan contributions, Income Taxes or Workers'
Compensation payments, the Consultant agrees to indemnify the
Company and any of its directors, officers and employees, for
the full amount of any such contributions or payments (including
any applicable interest and penalties thereon). The Consultant
further agrees that the Company may set off an equal amount of
such contributions or payments (including any applicable
interest and penalties thereon) against any fees and expenses
payable to the Consultant under this Agreement.
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8. Confidential Information
(a) The Consultant acknowledges that certain of the material and
information made available to the Consultant by the Company in
the performance of the Services (the "Confidential Information")
will be of a confidential nature. The Consultant recognizes
that the Confidential Information is the sole and exclusive
property of the Company, and the Consultant shall use its best
efforts and exercise utmost diligence to protect and maintain
the confidentiality of the Confidential Information. The
Consultant shall not, directly or indirectly, use the
Confidential Information, whether or not acquired, learned,
obtained or developed by the Consultant alone or in conjunction
with others, except as such disclosure or use may be required in
connection with the performance of the Services or as may be
consented to in writing by the Company.
(b) The Confidential Information is and shall remain the sole and
exclusive property of the Company regardless of whether such
information was generated by the Consultant or by others, and
the Consultant agrees that upon termination of the Agreement
it shall deliver promptly to the Company all such tangible
parts of the Confidential Information including records, data,
notes, reports, proposals, Company lists, correspondence,
materials, marketing or sales information, computer programs,
equipment, or other documents or property which are in the
possession or under the control of the Consultant without
retaining copies thereof.
(c) Each of the foregoing obligations of the Consultant in this
clause shall also apply to any confidential information of
customers, joint venture parties, contractors and other
entities, of any nature whatsoever, with whom the Company or
any associate or affiliate of the Company has business
relations.
(d) Notwithstanding the foregoing provisions of this clause, the
Consultant shall not be liable for the disclosure or use of
any of the Confidential Information to the extent that:
(i) the Confidential Information is or becomes available
to the public from a source other than the Consultant
and through no fault of the Consultant; or
(ii) the Confidential Information is lawfully obtained by
the Consultant from a third party or a source outside
of this Agreement.
(e) The covenants and agreements contained in this clause shall
survive the termination of this Agreement.
9. Other Services
The Consultant will be free to perform consulting and other services to
the Consultant's other Companyies during the term of this Agreement,
provided however, that the Consultant shall ensure that the Consultant
is able to perform the Services pursuant to this Agreement in a timely
and professional fashion. The Consultant agrees not to perform services
for the Consultant's other Companies which may create a conflict of
interest or interfere with the Consultant's duties pursuant to this
Agreement.
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10. Non-Competition
(a) The Consultant agrees that during the term of this Agreement,
the Consultant will not engage, hold an interest, or have any
involvement, either directly or indirectly, in any business
entity or venture which competes with the Company or any
associate or affiliate of the Company.
(b) The Consultant agrees that during the term of this Agreement,
and for a period of twelve months following termination of
this Agreement, however caused, the Consultant will not hire
or take away, or cause to be hired or taken away any employee
of the Company.
(c) The Consultant agrees that all restrictions in this clause are
reasonable, valid and do not go beyond what is necessary to
protect the interests of the Company, and all defenses to the
strict enforcement thereof by the Company are hereby waived by
the Consultant. The provisions of this clause are only
intended to safeguard against the Consultant participating in
competitive endeavours against the Company and shall not in
any way restrict or limit the Consultant from engaging in
subsequent business which are not in competition with the
Company.
(d) The covenants and agreements contained in this clause shall
survive the termination of this Agreement.
11. Termination
(a) In the event that the Consultant breaches this Agreement, or
otherwise fails to perform the Services in accordance with the
terms of this Agreement, the Company may terminate this
Agreement immediately and without notice for cause. Either
party may terminate this Agreement at any time, without cause
or reason, upon giving one (1) months advance written notice
to the other.
(b) Upon termination of this Agreement:
(i) the Company's obligations to the Consultant under
this Agreement shall terminate except for the
Company's obligation to pay the fees and expenses in
accordance with the terms of this Agreement, to the
date of termination; and
(ii) the Consultant's obligations to the Company under
this Agreement shall terminate except those
obligations which are specifically expressed to
survive the termination of this Agreement.
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12. Governing Law
This Agreement shall be governed by the laws of the Province of British
Columbia and the federal laws of Canada applicable therein.
13. Severability
If any provision of this Agreement, or the application of such
provision to any person or in any circumstance, shall be determined to
be invalid, illegal or unenforceable, the remaining provisions of this
Agreement, and the application of such provision to any person or in
any circumstance other than that to which it is held to be invalid,
illegal or unenforceable, shall not be affected thereby.
14. Amendments
Any amendments to this Agreement must be in writing and signed by both
parties hereto.
15. Time of Essence
Time shall be of the essence in this Agreement.
16. Indemnification
This is the entire Agreement between the Company and the Consultant
with respect to the Services to be provided by the Consultant to the
Company and supersedes any prior agreements with respect to such
services whether written or oral.
17. Notices
Notices hereunder shall be in writing and must be either personally
delivered or sent by double registered mail to the address(es) set
forth above. A party much change the address set forth above by proper
notice to the other.
18. No Waiver
The failure of any partly to insist upon the strict performance of a
covenant or obligation hereunder, irrespective of the length of time
for which such failure continues, shall not be a waiver of such party's
right to demand strict performance in the future. No consent or waiver,
express or implied, to or of any breach or default in the performance
of any covenant or obligation hereunder shall constitute a consent or
waiver to or of any other breach or default in the performance of the
same or of any other obligation hereunder.
19. Assignment
This Agreement is personal in nature and may not be assigned by either
party hereto.
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20. Enurement
This Agreement shall be binding upon and shall enure to the benefit of
each of the parties hereto and their respective employees and permitted
receivers, successors and assigns.
IN WITNESS WHEREOF the parties hereto have signed this Agreement as of the day
and year first above written.
Aquasol EnvironTech Ltd.
Per:
--------------------------------
Name
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Xxxx Yenyou Zheng
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