Exhibit 99.3
MARKETING AND CONSULTING AGREEMENT
This Marketing and Consulting Agreement ("Agreement") dated this 24th day
of January, 2002, is executed by and between 0xxxxx.xxx, Inc., a Nevada
corporation with offices located at 00 Xxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 (the
"Company") and M. Xxxxxx Xxxxxx, with offices located 0 Xxxxx Xxxxxxxxxx Xxxxx,
Xxxxxxxxx, XX 00000 (the "Consultant").
In consideration of the promises and mutual covenants set forth in this
Agreement, the parties hereby agree as follows:
1. Scope of Services. The services to be performed by the Consultant pursuant to
this Agreement include assisting with introductions to companies wishing to do
business in China and to help structure joint ventures with such companies.
2. Term. This Agreement shall become effective as of the date set forth on the
signature page of this Agreement and shall continue for a period of one (1) year
from the effective date of the Registration Statement defined below), subject to
earlier termination as provided herein and in Section 3 below (the "Term").
Notwithstanding the foregoing, the Company or the Consultant have the right to
terminate this Agreement for cause upon 30 days' written notice, which written
notice shall be effective upon mailing by first class mail, Fedex or other such
delivery services at the respective addresses provided by the parties in this
Agreement. "Cause" shall be deemed any violation of any federal or state law or
any rule or regulation of any regulatory agency, any neglect, act or omission
detrimental to the conduct of the Company or the business of the Consultant,
material breach of this Agreement or any unauthorized disclosure of any
confidential information of the Company.
3. Compensation, Issuance of Stock. In consideration of, and in full payment
for, the services to be performed under this Agreement, the Company hereby
agrees to issue to the Consultant, subject to the provisions of this paragraph
3, an aggregate of seven hundred thousand (700,000) shares of the Company's
common stock, $.001 par value per share (the "Shares"); provided, however, that
prior to issuance of any of the Shares, the Company shall file with the
Securities and Exchange Commission a registration statement on Form S-8 with
respect to 350,000 of the Shares (the "Registration Statement"). Anything
contained herein to the contrary notwithstanding; the parties hereby acknowledge
and agree that the Consultant's obligation to perform any services under this
Agreement is made subject to, and conditioned upon: (i) the Consultant's receipt
of the Company's most recent annual report and such other reports as filed under
the Securities Exchange Act of 1934, as amended, and otherwise required to be
delivered to the Consultant by the Company under Rule 428 promulgated by the
Commission under the Securities Act of 1933, as amended (the "428 Information");
(ii) the effectiveness of the Registration Statement; and (iii) delivery to the
Consultant of stock certificates evidencing the Shares upon their issuance
subsequent to the effectiveness of the Registration Statement. The Consultant
shall have forty-eight (48) hours following receipt of the 428 Information
during which to rescind this Agreement, rendering it null and void and without
any obligations as to the parties hereto; provided, however, failure by the
Consultant to respond within such 48 hour period shall be deemed an acceptance
by the Consultant of this Agreement.
4. Confidentiality. The Consultant agrees that all information concerning the
Company which he obtains as a result of the services rendered pursuant to this
Agreement shall be kept confidential and shall not be used by the Consultant
except for the direct benefit of the Company and such confidential information
shall not be disclosed by the Consultant to any third party without the prior
written approval of the Company, provided, however, that the Consultant shall
not be obligated to treat as confidential any information that (a) was publicly
known at the time of disclosure to the Consultant, (b) becomes publicly known or
available thereafter other than by any means in violation of this Agreement or
any other duty owed to the Company by the Consultant, or (c) is lawfully
disclosed to the Consultant by a third party.
5. Independent Contractor. The Consultant and the Company hereby acknowledge
that the Consultant is an independent contractor. The Consultant agrees not to
hold himself out as, nor take any action from which third parties might
reasonably infer that the Consultant is an employee, partner or agent of, or a
joint venturer with the Company. In addition, the Consultant shall take no
action which, to the knowledge of the Consultant, binds, or purports to bind,
the Company to any contract or agreement.
6. Miscellaneous:
(a) Entire Agreement. This Agreement contain the entire agreement between
the parties and may not be waived, amended, modified or supplemented except by
agreement in writing signed by the party against whom the enforcement of any
waiver, amendment, modification or supplement is sought. Waiver of or failure to
exercise any right provided by this Agreement shall not be deemed a waiver of
any further or future rights.
(b) Governing Law. This Agreement shall be construed under the laws of the
State of New York and the parties agree that the exclusive jurisdiction for any
litigation or arbitration arising under this Agreement shall be in New York, NY.
(c) Successors and Assigns. This Agreement shall be binding upon the
parties, their successors and assigns, provided, however, that the Consultant
shall not permit any other person or entity to assume the obligations hereunder
without the prior written approval of the Company.
(d) Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, such provision(s), shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision(s) were excluded and shall be enforceable in accordance with its
terms.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth below.
Date: January 24, 2002 Date: January 24, 2002
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AGREED TO AND ACCEPTED BY: AGREED TO AND ACCEPTED
0xxxxx.xxx Inc.
/s/ M. Xxxxxx Xxxxxx By: /s/ Xxxxxx X. XxXxxxxxx
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M. Xxxxxx Xxxxxx (Consultant) Officer of 0xxxxx.xxx, Inc.
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