SHENZHEN HENGTAIFENG TECHNOLOGY CO., LTD.
Xx. 0 Xxxxx 0, Xxxxx X
Xxxxxxxx Xxxxxxxx
Hi-tech Industrial Park
Xxxxxxx Xxxxxxxx
Xxxxxxxx 000000 P.R. China
August 19, 2005
American Union Securities Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxx, President
Dear Mr. Leo:
Reference is made to (a) the agreement, dated November 24, 2004 between
Shenzhen Hengtaifeng Technology Co., Ltd. ("HTF") and American Union
Securities Inc. ("AUS") (the "Initial Agreement"), and (b) Amendment No. 1
thereto, dated January 18, 2005 ("Amendment No. 1").
AUS and HTF hereby agree to amend the Initial Agreement and Amendment No.1 as
follows:
1. Amendments to the Initial Agreement:
1) Section 3 to Section 5 are rescinded ab initio.
2. Amendments to Amendment No. 1:
1) Section 1 shall be changed and read as follows:
For its services hereunder, AUS shall be paid a fee of $200,000. HTF has
already paid to AUS $100,000 on account of such fee. HTF will wire an additional
$100,000 directly to AUS when Moving Bytes acquires all of the outstanding
common stock of China International Enterprises Corp. ("CIEC") and the
stockholders of CIEC become the controlling stockholders of Moving Bytes.
2) Section 2 to Section 5 are rescinded ab initio.
3. Except as amended hereby the Initial Agreement and Amendment No. 1
shall remain in full force and effect.
4. This agreement, the Initial Agreement and Amendment No. 1
(collectively, the "Agreements") shall be governed in all respects by the laws
of the State of New York without giving effect to the conflicts of laws
principles thereof. All suits, actions or proceedings arising out of, or in
connection with, the Agreements or the transactions contemplated by the
Agreements shall be brought in any court of competent subject matter
jurisdiction sitting in New York, New York. Each of the parties hereto by
execution and delivery of the Agreements, expressly and irrevocably (i) consents
and submits to the exclusive personal jurisdiction of any such courts in any
such action or proceeding; (ii) consents to the service of any complaint,
summons, notice or other process relating to any such action or proceeding by
delivery thereof to such party as set forth in Section 10.5 hereof; and (iii)
waives any claim or defense in any such action or proceeding based on any
alleged lack of personal jurisdiction, improper venue, forum non conveniens or
any similar basis.
5. The provisions of the Agreements shall inure to the benefit of, and be
binding upon, the permitted successors and assigns of the parties to the
Agreements.
6. The Agreements constitute the full and entire understanding and
agreement between the parties with regard to the subject matter hereof and
thereof and supersedes all prior agreements and merge all prior discussions,
negotiations, proposals and offers (written or oral) between them, and no party
shall be liable or bound to any other party in any manner by any
representations, warranties, covenants or agreements except as specifically set
forth herein or therein. Except as expressly provided in the Agreements, neither
the Agreements nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
7. All notices and other communications given or made pursuant hereto
shall be in writing and shall be deemed to have been given or made if in writing
and delivered personally or sent by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following addresses:
If to HFT, to:
Mr. Xx Xxxx Xxxx
Xxxx Xing Technology Group Development Limited, and
Shenzhen Hengtaifeng Technology Co., Ltd.
Xx. 0 Xxxxx 0, Xxxxx X Xxxxxxxx Xxxxxxxx Hi-tech Industrial Park Xxxxxxx
Xxxxxxxx Xxxxxxxx 000000 P.R. China Tel: x00(000)0000-0000 Fax:
x00(000)0000-0000
If to AUS, to:
American Union Securities Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: +1(212)232-0120 ext. 221
Fax: x0(000)000-0000
or to such other persons or at such other addresses as shall be furnished by any
party by like notice to the others, and such notice or communication shall be
deemed to have been given or made as of the date so delivered or mailed. No
change in any of such addresses shall be effective insofar as notices under this
Section 7 are concerned unless such changed address is located in the United
States of America and notice of such change shall have been given to such other
party hereto as provided in this Section 7.
8. Except as expressly provided in the Agreements, no delay or omission to
exercise any right, power or remedy accruing to any other party hereto or its
successors or assigns, upon any breach or default by another party hereto under
the Agreements shall impair any such right, power or remedy of such other party
or its successors or assigns, as the case may be, nor shall it be construed to
be a waiver of any such breach or default, or an acquiescence therein, or of a
waiver of or acquiescence in any similar breach or default thereafter occurring;
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring; provided, however,
that this Section 8 shall not be interpreted to extend the date or time for any
right, privilege or option beyond that expressly set forth elsewhere in the
Agreements. Any waiver, permit, consent or approval of any kind or character on
the part of any holder of any breach or default under the Agreements, or any
waiver on the part of any holder of any provisions or conditions of the
Agreements, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under the
Agreements or by law or otherwise afforded to any holder shall be cumulative and
not alternative.
9. The Agreements may be executed in any number of counterparts, each of which
shall be enforceable against the parties actually executing such counterparts,
and all of which together shall constitute one instrument. The Agreements may be
delivered by facsimile, and facsimile signatures shall be treated as original
signatures for all applicable purposes.
10. In the event that any provision of the Agreements become or is declared by a
court of competent jurisdiction to be illegal, unenforceable or void, the
Agreements shall continue in full force and effect without said provision;
provided that no such severability shall be effective if it materially changes
the economic benefit of the Agreements to any party.
11. The titles and subtitles used in the Agreements are used for convenience
only and are not considered in construing or interpreting the Agreements.
12. The parties have participated jointly in the negotiation and drafting of the
Agreements. In the event an ambiguity or question of intent or interpretation
arises, the Agreements shall be construed as if drafted jointly by the parties
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any of the provisions of the Agreements.
Any reference to any federal, state, local or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder and any
applicable common law, unless the context requires otherwise. Terms used with
initial capital letters will have the meanings specified, applicable to singular
and plural forms, for all purposes of the Agreements.
13. The parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents, and
(c) to do such other acts and things, all as they other party may reasonable
request for the purpose of carrying out the intent of the Agreements and the
documents referred to in the Agreements.
IN WITNESS WHEREOF, the parties hereto have executed this agreement as of
the date first above written.
SHENZHEN HENGTAIFENG TECHNOLOGY CO., LTD.
By: ________________________
Name: Xx Xxxx Qing
Title: Chairman
AMERICAN UNION SECURITIES INC.
By:____________________
Name: Xxxx Xxx
Title: President
