EXHIBIT 10.1
CONSULTING AGREEMENT
This Agreement (the "Agreement") is entered into as of the 15th day of April
2004 by and between Xxxxxxx Xxxxxxxxxx with an address at 00 X. 00xx Xxxxxx,
Xxxxxxxxx 0000, Xxx Xxxx, Xxx Xxxx (the "Consultant"), individually, and Yi Wan
Group, Inc. (the "Company"), a Florida corporation with offices located at 189
Middle Xxx Xxx Road, Jiaozuo, Henan, P.R. China.
WITNESSETH
WHEREAS, the Consultant has extensive experience in providing business
consulting services, with particular expertise in advising businesses in areas
of business development, alliances and general business matters; and
WHEREAS, the Company desires to engage Consultant to render consulting
services to the Company; and
WHEREAS, the Company and the Consultant desire to set forth the terms
and conditions of the Agreement with respect to the Company's engagement of
Consultant.
NOW, THEREFORE, in consideration of the mutual covenants of the parties
which are hereinafter set forth and for other good and valuable consideration,
the receipt and sufficiency of which is herby acknowledged,
IT IS AGREED:
1. RECITALS ADOPTED. The parties hereto adopt as part of this Agreement each of
the recitals contained above in the WHEREAS clauses, and agree that such
recitals shall be binding upon the parties hereto by way of contract and not
merely by way of recital or inducement; and such clauses are herby confirmed and
ratified as being true and accurate by each party as to itself.
2. ENGAGEMENT.
A. Upon the terms and conditions which are hereinafter set forth, the
Company hereby retains the Consultant as a business and financial consultant to
render advice, consultation, information and services to the Company and its
officers and directors regarding marketing and general financial and business
matters (the "Consulting Services") including, but not limited to, the
following:
(i) Mergers and Acquisitions;
(ii) Strategic alliances; and
(iii) Such other matters as the Company shall from time to
time request.
B. The Consultant shall not be required to devote any minimum number of
weeks, days, or hours to the affairs of the Company during the term of this
Agreement; provided, however that the Consultant devotes such time, attention
and energies to the business of the Company, as the Company reasonable
determines.
C. The Consulting Services will not be in connection with: (1) the
offer or sale of securities in a capital raising transaction and did not and
will not directly or indirectly promote or
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maintain a market for the Company's securities; (2) any promotion or marketing
of the Company or shareholder or investor relations services; or (3) a shell
merger.
3. TERM.
A. The term of this Agreement shall commence as of April 15, 2004 and
shall continue until May 31, 2005 (the "Term"). The Company shall have the right
to terminate the Consultant for Cause as defined in Article 10 of this
Agreement.
B. This Agreement may be extended upon the mutual agreement of the
parties, unless or until the Agreement is previously terminated.
4. COMPENSATION.
A. As compensation for the Consulting Services pursuant to this
Agreement, the Consultant shall receive a fee of 125,000 free trading shares of
common stock of the Company.
B. The Company covenants and agrees to file a registration statement on
Form S-8 covering the shares of common stock that are issued pursuant to this
Agreement. All expenses in connection with preparing and filing any registration
statement under this Article 4 (and any registration or qualification under the
securities or "Blue Sky" laws of states in which the offering will be made under
such registration statement) shall be borne in full by the Company.
5. COSTS AND EXPENSES. The Consultant shall be responsible for all expenses that
the Consultant may incur in performing the Consulting Services pursuant to this
Agreement, including, but not limited to, travel expenses, third party expenses,
copying, and mailing expenses unless otherwise pre-approved in writing by
Company.
6. DUE DILIGENCE. The Company shall supply and deliver to the Consultant all
information relating to the Company's business as may be reasonably requested by
the Consultant to enable the Consultant to make an assessment of the Company and
its business prospects and provide the Consulting Services.
7. BEST EFFORTS BASIS. The Consultant agrees that he will, at all times,
faithfully and in a professional manner perform all of the duties that may be
reasonably required of, and from, the Consultant pursuant to the terms of this
Agreement. The Consultant does not guarantee that his efforts will have any
impact upon the Company's business or that there will be any specific result or
improvement from the Consultant's efforts.
8. COMPANY'S RIGHT TO APPROVE TRANSACTIONS.
A. The Company expressly retains the right to approve, in its sole
discretion, each and every transaction introduced by the Consultant that
involves the Company as a party to any agreement. The Consultant and the Company
mutually agree that the Consultant is not authorized to enter into
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agreements on behalf of the Company. It is mutually understood and agreed that
the Company is not obligated to accept any recommendations or close any
transactions submitted by the Consultant.
B. The Consultant agrees to provide the Company for approval, in its
sole and absolute discretion, a reasonable time in advance, any documents which
are intended to be utilized by the Consultant with respect to his services
pursuant to this Agreement, or otherwise. Company will carefully and thoroughly
review all such material, including without limitation material, material
provided by the Company to Consultant and intended to be used by Consultant, as
to the accuracy of the contents thereof and will promptly notify Consultant in
writing of any inaccuracies or changes to be made with respect thereto.
9. NON-EXCLUSIVE SERVICES. The Company acknowledges that the Consultant may
provide services of the same or similar nature to other parties and the Company
agrees that the Consultant is not prevented or barred from rendering services of
the same nature or a similar nature to any other individual or entity. The
Consultant understands and agrees that the Company shall not be prevented or
barred from retaining other persons or entities to provide services of the same
or similar nature as those provided by the Consultant. The Consultant will take
reasonable steps to determine and to advise the Company of his position with
respect to any activity, employment, business arrangement or potential conflict
of interest which may be relevant to this Agreement, but Consultant shall not be
obligated to conduct an exhaustive review of his activities or those of his
clients to determine whether or not such a conflict exists.
10. CAUSE. For purposes of this Agreement, the term "Cause" shall be
limited to: (i) willful malfeasance or gross negligence; (ii) the Consultant's
fraud, misappropriation or embezzlement; (iii) the Consultant's failure to
perform such duties which are reasonable assigned by the Board of Directors of
the Company, provided such duties are customary and appropriate for his
consulting obligations to the Company; or (iv) the Consultant's default,
violation of, or failure to perform any provision of this Agreement; provided
however that any termination shall be subject to receipt of written notice to
the Consultant from the Company specifying the failure of default and the
Consultant failing to cure such default within ten (10) days after receipt of
such notice. Such termination of the Consultant shall not constitute a breach of
this Agreement by the Company and the Company's sole obligation to the
Consultant shall be to pay the Consultant the amount of any compensation then
due to the Consultant through the date of termination, including but not limited
to, any Common Stock due pursuant to Article 4 of this Agreement.
11. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CONSULTANT. The
Consultant represents, warrants and covenants to the Company as follows:
A. The Consultant has the full authority, right, power and legal
capacity to enter into this Agreement and to consummate the transactions which
are provided for herein.
B. The business and operations of the Consultant have been and are
being conducted in all
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material respects in accordance with all applicable laws, rules and regulation
of all authorities which affect the Consultant or his properties, assets,
businesses or prospects. The performance of this Agreement shall not result in
any breach of, or constitute a default under, or result in the imposition of any
lien or encumbrance upon, any property of the Consultant or cause an
acceleration under any arrangement, agreement or other instrument to which the
Consultant is a party or by which any of its assets are bound. The Consultant
has performed in all respects all of his obligations which are, as of the date
of this Agreement, required to be performed by it pursuant to the terms of any
such agreement, contract or commitment.
C. The execution, delivery and performance of this Agreement: (i) does
not violate any agreement or undertaking to which the Consultant is a party or
by which the Consultant may be bound; and (ii) shall not result in the
imposition of any restrictions or obligations upon the Consultant other than the
restrictions and obligations imposed by this Agreement.
D. The execution and delivery by the Consultant of this Agreement and
the performance by the Consultant of its obligations hereunder will not violate
any provision of law, any order of any court or other agency of government, and
will not result in a material breach of or constitute (with due notice or lapse
of time or both) a material default under any provision of any agreement or
other instrument to which the Consultant, or any of his properties or assets, is
bound.
E. The Consultant has not entered into and is not subject o any
agreement, including but not limited, to any employment, noncompete,
confidentiality or work product agreement which would: (i) prohibit the
execution of this Agreement; (ii) prohibit his engagement as a Consultant by the
Company; or (iii) affect any of the provisions of, or his obligations pursuant
to, this Agreement.
F. If, during the Term, any event occurs or any event known to the
Consultant relating to or affecting the Consultant shall occur as a result of
which: (i) any provision of this Article 11 of this Agreement at that time shall
include an untrue statement of a fact; or (ii) this Article 11 of this Agreement
shall omit to state any fact necessary to make the statement herein, in light of
the circumstances under which they were made, not misleading, the Consultant
will immediately notify the Company pursuant to Paragraph C of Article 20 of
this Agreement.
G. The Consultant has no present intention of creating a market or
participating or assisting in the creation of a market or in the promotion of a
market for any securities of the Company.
H. The Consultant has no present intention of selling or otherwise
disposing of the Common Stock in violation of applicable securities laws.
I. The Consultant is aware that no federal or state governmental
authority has made any finding or determination as to the fairness of an
investment in the Common Stock, or any recommendation or endorsement with
respect thereto.
J. The Consultant is able to bear the economic risk of the investment
in the Common Stock for an indefinite period of time, including the risk of
total loss of such investment, and Consultant recognizes that an investment in
the Common Stock involves a high degree of risk.
K. The Consultant has such knowledge and experience in financial,
investing and business matter as to be capable of evaluating the risks and
merits of an investment in the Common Stock and
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protecting the Consultant's interests in connection with an investment in the
Common Stock.
L. The Consultant has had access to and an opportunity to inspect all
relevant information relating to the Company sufficient to enable the Consultant
to evaluate the merits and risks of its receipt of the Common Stock hereunder.
The Consultant also has had the opportunity to ask questions of officers of the
Company and has received satisfactory answers respecting, and has obtained such
additional information as the Consultant has desired regarding, the business,
financial condition and affairs of the Company.
M. It shall not be a defense to a suit for damages for any
misrepresentation or breach of covenant or warranty that the Company knew or had
reason to know that any representation, warranty or covenant in this Agreement
or furnished or to be furnished to the Company contained untrue statements.
N. No representation or warranty of the Consultant which is contained
in the Agreement, or in a writing furnished or to be furnished pursuant to this
Agreement, contains or shall contain any untrue statement of a material fact,
omits or shall omit to state any material fact which is required to make the
statement which are contained herein or therein, in light of the circumstances
pursuant to which they were made, not misleading.
O. All representations, warranties and covenants made in or in
connection with this Agreement shall continue in full force and effect during
and after the Term of this Agreement, it being agreed and understood that each
of such representations, warranties and covenants is of the essence of this
Agreement and the same shall be binding upon the Consultant and inure to the
Consultant, its successors and assigns.
12. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The Company
represents, warrants and covenants to the Consultant as follows:
A. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida, with all requisite power
and authority to carry on its business as presently conducted in all
jurisdiction where presently conducted, to enter into this Agreement and to the
transactions which are contemplated herein.
B. The Company has the full authority, right, power and legal capacity
to enter into this Agreement and to consummate the transactions which are
provided for herein. The execution of this Agreement by the Company and its
delivery to the Consultant, and the consummation by it of the transactions which
are contemplated herein have been duly approved and authorized by all necessary
action by the Company's Board of Directors and no further authorization shall be
necessary on the part of the Company for the performance and consummation by the
Company of the transactions which are contemplated by this Agreement.
C. The business and operations of the Company have been and are being
conducted in all material respects in accordance with all applicable laws, rules
and regulation of all authorities which affect the Company or its properties,
assets, businesses or prospects. The performance of this Agreement shall not
result in any breach of, or constitute a default under, or result in the
imposition of any lien or encumbrance upon any property of the Company or cause
an acceleration under any
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arrangement, agreement or other instrument to which the Company is a party or by
which any of its assets are bound. The Company has performed in all respects all
of its obligations which are, as of the date of this Agreement, required to be
performed by it pursuant to the terms of such agreement, contract or commitment.
D. The execution, delivery and performance of this Agreement: (i) does
not violate any agreement or undertaking to which the Company is a party or by
which the Company may be bound; and (ii) shall not result in the imposition of
any restrictions or obligations upon the Company other than the restrictions and
obligations imposed by this Agreement.
E. It shall not be a defense to suit for damages for any
misrepresentation or breach of covenant or warranty that the Consultant knew or
had reason to know that any representation, warranty or covenant in this
Agreement or furnished or to be furnished to the Consultant contained untrue
statements.
F. No representation or warranty of the Company which is contained in
this Agreement, or in a writing furnished or to be furnished pursuant to this
Agreement, contains or shall contain any untrue statement of a material fact,
omits or shall omit to state any material fact which is required to make the
statements which are contained herein or therein, in light of the circumstances
pursuant to which they were made, not misleading.
G. All representations, warranties and covenants made in or in
connection with the Agreement shall continue in full force and effect during and
after the Term of this Agreement, it being agreed and understood that each of
such representations, warranties and covenants is of the essence of this
Agreement and the same shall be binding upon the Company and inure to the
Consultant, its successors and assigns.
13. NONDISCLOSURE OF CONFIDENTIAL INFORMATION.
A. As used in this Agreement, "Confidential Information" means
information which is presented to the Consultant by the Company or developed,
conceived or created by the Company, or disclosed to the Consultant or known by
or conceived or created by the Consultant during the Term, with respect to the
Company, its business or any of its products, processes, and other services
relating thereto relating to the past, present or future business of the Company
or any plans therefore, or relating to the past, present or future business of a
third party or plans therefore which are disclosed to the Consultant.
Confidential information includes, but is not limited to, all documentation,
hardware and software relating thereto, and information and data in written,
graphic and/or machine readable form, products, processes and services, whether
or not patentable, trademarkable or copyrightable or otherwise protectable,
including, but not limited to, information with respect to discoveries;
know-how; ideas; computer programs; source codes and object codes; designs;
algorithms; processes and structures; product information; marketing
information; price lists; cost information; product contents and formulae;
manufacturing and production techniques and methods; research and development
information; lists of clients and vendors and other information relating
thereto; financial data and information; business plans and processes;
documentation with respect to any of the foregoing;
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and any other information of the Company that the Company informs the Consultant
or the Consultant should know, by virtue of its position or the circumstances in
which the Consultant learned such other information, is to be kept confidential
including, but not limited to, any information acquired by the Consultant from
any sources prior to the commencement of the Consultant becoming a consultant to
the Company. Confidential Information also includes similar information obtained
by the Company in confidence from its vendors, licensors, licensees, customers
and/or clients. Confidential Information may or may not be labeled as
confidential.
B. Except as required by the performance of the Consultant's duties as
a consultant, the Consultant will not, during or after the Term, directly or
indirectly, use any Confidential Information or disseminate or disclose any
Confidential Information to any person, firm, corporation, association or other
entity. The Consultant shall take all reasonable measures and efforts to protect
Confidential Information from any accidental, unauthorized or premature use,
disclosure or destruction. The use of such measures and efforts shall not
constitute a defense if any of the Confidential Information is not kept
confidential in accordance with the terms of this Agreement. The foregoing
prohibition shall not apply to any Confidential Information which: (i) was
generally available to the public prior to such disclosure; (ii) becomes
publicly available through no act or omission of the Consultant; (iii) is
disclosed as reasonably required in a proceeding to enforce the Consultant's
rights under this Agreement; or (iv) is disclosed as required by court order or
applicable law.
C. Upon termination of the Consultant for any reason, or at any time
upon request of the Company, the Consultant agrees to deliver to the Company all
materials of any nature which are in the Consultant's possession or control and
which are or contain Confidential Information, Work Product or Work Products
(hereinafter defined), or which are otherwise the property of the Company or any
vendor, licensor, licensee, customer or client of the Company, including, but
not limited to writings, designs, documents, records, data, memoranda, tapes and
disks containing software, computer source code listings, routines, file
layouts, record layouts, system design information, models, manuals,
documentation and notes.
D. All copyrights, logos and other advertising material conceived by
the Consultant specifically in connection with the consulting services rendered
by Consultant for Company under this Agreement (alone or with others) during the
Term ("Work Product") shall be the exclusive property of and assigned to the
Company or as the Company may direct without compensation to the Consultant
other than the compensation provided for herein. Any records with respect to the
foregoing shall be the sole and exclusive property of the Company and the
Consultant shall surrender possession of such records to the Company upon any
suspension or termination of the Consultant. Any Work Product shall be deemed
incorporated in the definition of Confidential Information for all purposes
hereunder.
E. The Consultant will not assert any rights with respect to the
Company, its business, or any of its products, processes and other services
relating thereto, Work Product or any Confidential Information as having been
acquired or known by the Consultant prior to the commencement of the
Consultant's engagement by the Company unless such rights are asserted in good
faith and verified.
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14. WORK PRODUCT.
A. The Consultant represents and warrants to the Company that all work
that the Consultant performs, for or on behalf of the Company and its clients,
and all work product that the Consultant produces, including, but not limited
to, software, documentation, memoranda, ideas, designs, inventions, processes,
algorithms, etc. (also "Work Product") will not knowingly infringe upon or
violate any patent, copyright, trade secret or other property right of any other
third party. Further, the Consultant will not disclose to the Company or use in
any of the Consultant's Work Product any confidential or proprietary information
belonging to them, unless both the owner thereof and the Company have consented
to such disclosure and usage.
B. The Consultant will promptly disclose to the Company all Work
Products developed by the Consultant within the scope of the Consultant acting
as a consultant to the Company or which relate directly to, or involve the use
of, any Confidential Information including, but not limited to, all software,
concepts, ideas and designs, and all documentation, manuals, letters, pamphlets,
drafts, memoranda and other documents, writings or tangible things of any kind.
C. The Consultant acknowledges and agrees that all copyrightable Work
Products prepared by the Consultant within the scope of the Consultant acting as
a consultant to the Company are "works made for hire" and, consequently, that
the Company owns all copyrights thereto subject to Company fulfilling the
compensation obligations to Consultant as provided in this Agreement.
D. The Consultant hereby assigns, transfers and conveys to the Company,
without additional consideration, all of the Consultant's other rights, title
and interest (including, but not limited to, all patent, copyright and trade
secret rights) in and to all Work Products prepared by the Consultant, whether
patentable or not, made or conceived, in whole or in part, by the Consultant
within the scope of the Consultant acting as a consultant to the Company, or
that relate directly to, or involve the use of, Confidential Information,
subject to Company fulfilling its compensation obligations to Consultant as
provided in this Agreement.
E. The Consultant will, without additional compensation, execute all
assignments, oaths, declarations and other documents requested by the Company to
effect and further evidence the foregoing assignment, transfer and conveyance,
and agree to provide all reasonable assistance to the Company (at the Company's
expense) to provide all information, documentation and assistance to the Company
in perfecting, enforcing, defending or protecting any or all of the Company's
rights in all Work Product subject to Company fulfilling its compensation
obligations to Consultant as provided in this Agreement.
15. INDEMNIFICATION BY THE CONSULTANT.
A. The Consultant shall indemnify, protect, defend and save and hold
harmless the Company from and against any loss resulting to them from:
(i) All liabilities of the Consultant, whether accrued,
absolute, contingent, or otherwise existing on the date of this Agreement;
(ii) Any and all losses, liabilities, costs, damages, or
expenses which Company may suffer, sustain or incur arising out of or due to a
breach by the Consultant of any covenant,
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representation or warranty made in this Agreement or from any misrepresentation
and/or omission pursuant to this Agreement; and
(iii) Any and all claims or actions against the Company, and
any and all costs, expenses and losses, including but not limited to,
arbitration awards, civil judgments, reasonable attorney fees and costs, and
court or arbitration fees and costs arising out of any act, or any omission of
Consultant in the performance of any duties or services, regardless of whether
said claim or action against the Consultant is individually dismissed, prior to,
or at the arbitration hearing or court proceeding. The Company, in its sole and
absolute discretion, without the prior approval of the Consultant, may settle
for compromise any claim at any time. In the event the Consultant wishes to
disagree with such settlement, it may do so by filing a bond/or depositing into
an escrow account for the benefit of the Company the amount of general damages
alleged by the plaintiff or claimant against Company. In such event, the Company
shall agree not to settle the claim without the consent of the Consultant.
(iv) Any and all losses, claims, damages or liabilities to
which the Company may become subject under the Securities Act of 1933, as
amended, (the "Act"), or otherwise insofar as such losses, claims, damages or
liabilities (or action in respect thereof) arise out of or are based upon
violations of the Act, the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder and upon any untrue statement or alleged untrue
statement or the alleged omission to state therein a material fact required to
be stated in any statement written or made by the Consultant in performing any
of the Consulting Services pursuant to this Agreement, subject to Company's
obligations as set forth in Paragraph 8 above.
B. The indemnification, which is set forth in this Article 15 of this
Agreement, shall be deemed to include not only the specific liabilities or
obligations with respect to which such indemnity is provided, but also all
reasonable costs, expenses, counsel fees, and expenses of settlement relating
thereto, whether or not any such liability or obligation shall have been reduced
to judgment.
C. If any demand, claim, action or cause of action, suit, proceeding or
investigation is brought against the Company and/or the Consultant to which the
Company is entitled to indemnification by the Consultant pursuant to this
Article 15 of this Agreement, the Company shall give prompt notice thereof to
the Consultant in accordance with Paragraph C of Article 20 of this Agreement,
which notice shall contain a reasonably thorough description of the nature and
amount of the claim of indemnification. Upon receipt of such notice the
Consultant shall use all reasonable efforts to assist in the vigorous defense of
any such matter. The failure of the Company to notify the Consultant of any such
demand, claim, action or cause of action, suit, proceeding or investigation
shall not relieve the Consultant from any liability which he may have under this
Article 15 of this Agreement except to the extent such failure to notify
Consultant prejudices the Consultant.
16. TIME PERIODS NOT LIMITED. Any period of time set forth in this Agreement
shall not be construed to permit the Consultant to engage in any of the
prohibited acts set forth in this Agreement after such period if such acts would
otherwise be prohibited by any applicable statute or legal precedent.
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17. COMPANY. As used in the Agreement, "Company" shall mean Yi Wan Group, Inc,
its successors and assigns, and any of its present or future subsidiaries or
organizations controlled by it.
18. ASSIGNMENT. The rights granted hereunder to the Consultant are personal in
nature. Any purported transfer of any such rights by operation of law or
otherwise, not specifically authorized pursuant to this Agreement shall be void
and shall also constitute a breach of this Agreement.
19. RELATIONSHIP. Except as provided for in this Agreement neither party is the
legal representative or agent of, or has the power to obligate the other for any
purpose whatsoever, and no partnership, joint venture, agent, fiduciary, or
employment relationship is intended or created by reason of this Agreement. It
is the intent of the parties hereto that the Consultant shall be an independent
contractor of the Company and not an employee of the Company.
20. MISCELLANEOUS.
A. Headings. The headings contained in this Agreement are for reference
purposes only and shall not affect n any way the meaning or interpretation of
this Agreement.
B. Enforceability. If any provision which is contained in this
Agreement should, for any reason, be held to be invalid or unenforceable in any
respect under the laws of any State of the United States, such invalidity or
unenforceability shall not affect any other provision of this Agreement.
Instead, this Agreement shall be construed as if such invalid on unenforceable
provision had not been contained herein.
C. Notices. Any notice or other communication required or permitted
hereunder must be in writing and sent by either (i) certified mail, postage
prepared, return receipt requested and First Class mail, (ii) overnight delivery
with confirmation of delivery; or (iii) facsimile transmission with an original
mailed by first class mail, postage prepared, addressed as follows:
If to the Company: Yi Wan Group, Inc.
189 Middle Xxx Xxx Road
Jiaozuo, Henan
P.R. China
Attention: Cheng Wan Ming
Facsimile No.: (000)000-0000
with a copy to: Xxxxxxx Xxxxxx Xxxxxxxxx Xxxx & Xxxxxx LLP
000 X. 00 Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: 212-980-5192
If to Consultant: Xxxxxxx Xxxxxxxxxx
00 X. 00xx Xxxxxx
Xxxxxxxxx 0000
Xxx Xxxx, Xxx Xxxx
or in case to such other address and facsimile number as shall have last been
furnished by like notice. If mailing is impossible due to an absence of postal
services, and the other methods of sending notice set forth in this Paragraph C
of this Article 20 of this Agreement are not otherwise available, notice shall
be hand delivered to the aforesaid address. Each notice or communication shall
be deemed to have
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been given as of the date so mailed or delivered, as the case may be; provided,
however, that any notice sent by facsimile shall be deemed to have been given as
of the date sent by facsimile if a copy of such notice is also mailed by first
class mail on the date sent by facsimile; if the date of mailing is not the same
as the date of sending by facsimile, then the date of mailing by first class
mail shall be deemed to be the date upon which notice is given.
D. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the rights of parties shall be governed by, the laws of the
State of New York applicable thereto, without regard to the conflicts of law
principles thereof, and the parties submit to the jurisdiction of the courts of
the State of New York.
E. ENTIRE AGREEMENT: The parties have not made any representations,
warranties or covenants with respect to the subject matter hereof which is not
set forth herein, and this Agreement constitutes the entire agreement between
them with respect to the subject matter hereof. All understanding and agreements
heretofore had between the parties with respect to the subject matter hereof are
merged in this Agreement, which alone fully and completely expresses their
agreement. This Agreement may not be changed, modified, extended, terminated or
discharged orally, but only by an agreement in writing, which is signed by all
of the parties to this Agreement.
F. FURTHER ASSURANCES. The parties agree to execute any and all such
other further instruments and documents, and to take any and all such further
actions which are reasonably required to consummate, evidence, confirm or
effectuate this Agreement and the intents and purposes hereof.
G. BINDING AGREEMENT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their heirs, executors, administrators,
personal representatives, successors and assigns.
H. WAIVER. Except as otherwise expressly provided herein, no waiver of
any covenant, condition, or provision of this Agreement shall be deemed to have
been made unless expressly in writing and signed by the party against whom such
waiver is charged; and (i) the failure of any party to insist in any one or more
cases upon the performance of any of the provisions, covenants or conditions of
this Agreement or to exercise any option herein contained shall not be construed
as a waiver or relinquishment for the future performance of any such provisions,
covenants or conditions, (ii) the acceptance of performance of anything required
by this Agreement to be performed with knowledge of the breach or failure of a
covenant, condition or provision hereof shall not be deemed a waiver of such
breach or failure, and (iii) no waver by any party of one breach by another
party shall be construed as a waiver with respect to any other breach of this
Agreement.
I. COUNTERPARTS. This Agreement may be executed simultaneously in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
J. SEPARATE COUNSEL. The Consultant acknowledged having had the
opportunity to engage separate counsel of his own selection acting on his behalf
if connection with the negotiation, execution and consummation of this
Agreement, and covenants that he alone shall be liable and responsible for and
shall not look to the Company in connection with the fees and expense of such
separate counsel.
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IN WITNESS WHEREOF, the parties to this Agreement have set their hands
and seals or caused these presents to be signed as of the day and year first
above written.
Yi Wan Group, Inc..,
By:
-------------------------------------
Cheng Wan Ming, CEO
-------------------------------------
Xxxxxxx Xxxxxxxxxx, Consultant
12
