GUARANTEE AND ASSUMPTION AGREEMENT
THIS
GUARANTEE AND ASSUMPTION AGREEMENT ("Agreement") made as of July 7, 2006, by
and
among Cyber Merchants Exchange, Inc. a California corporation ("Cyber"),
Infosmart Group, Limited, a company incorporated in the British Virgin Islands
(“InfoSmart”),
Info
Smart International Enterprises Limited, a company incorporated under the laws
of Hong Kong (“IS International”), Info Smart Technology Limited, a company
incorporated under the laws of Hong Kong (“IS Technology”), and Infoscience
Media Limited, a company incorporated under the laws of Hong Kong (“IS Media”).
RECITALS
WHEREAS,
Cyber, KI Equity Partners II, LLC, a Delaware limited liability company (“KI
Equity”), Prime Fortune Enterprises, Ltd., an international business company
incorporated in the British Virgin Islands (the "Company") and the shareholders
of the Company (“Shareholders”) have entered into an Exchange Agreement, dated
July 7, 2006 (as the same may be amended from time to time) (the “Exchange
Agreement”) which provides, upon the terms and subject to the conditions
thereof, for the exchange of all of the Shares of the Company for Cyber’s shares
of Series A Preferred Stock (the “Exchange”);
WHEREAS,
InfoSmart, IS International, IS Technology and IS Media (collectively, the
“Group Members”) acknowledge that as a condition of Cyber entering into the
Exchange Agreement, each of them shall be liable with the Company and each
of
the Shareholders with respect to each of the obligations of the Company and
the
Shareholders under the Exchange Agreement; and
WHEREAS,
each of the Group Members are to receive benefits as a result of the Exchange
Agreement.
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
each intending to be legally bound, hereby agree as follows:
1.
Guarantee
and Assumption. Each
Group Member hereby agrees that they shall, from the date of this Agreement,
be
jointly and severally liable with the Company and its Shareholders for each
and
every obligation and liability of the Company and each of the Shareholders
with
respect to each of the obligations of the Company and the Shareholders under
the
Exchange Agreement as if they were a party to the Exchange Agreement. Each
Group
Member further agrees that Cyber shall not be obligated to take any steps
whatsoever to collect from, to file any claim of any kind against, or to enforce
any liability or obligation against, the Company or any Shareholder, prior
to
pursuing any claim, action or remedy against any Group Member under this
Agreement.
2.
Default;
Notice.
In
the
event of any default or breach by the Company or any of its Shareholders under
the Exchange Agreement, Cyber hereby agrees that it will provide any notice
to
each Group Member that they are required to provide to the Company or its
Shareholders and that it will not take any action against each Group Member
hereunder unless and until any applicable cure period under the Exchange
Agreement has expired.
1
3.
Acknowledgement.
Each
Group Member hereby acknowledge that this Agreement is a material inducement
for
Cyber to enter into the Exchange Agreement, and that Cyber would not have
entered into the Exchange Agreement without this Agreement.
4.
Miscellaneous.
This
Agreement, and its enforcement, shall be governed by, and construed in
accordance with, the laws of the State of California (without regard for
conflict rules thereof) and the United States. This Agreement may be executed
in
two or more counterparts, each of which will be deemed to be an original of
this
agreement and all of which, when taken together, shall be deemed to constitute
one and the same agreement. Any party to this Agreement may deliver an executed
copy hereof by facsimile transmission to another party hereto and any such
delivery shall have the same force and effect as any other delivery of a
manually signed copy of this Agreement. It is understood and agreed by the
Parties that each represents and warrants to the other that the individual
signing this Agreement on behalf of the Party is their duly authorized
representative and that such individual’s signature binds the Party represented
to the terms of this Agreement. The terms and provisions contained in this
Agreement and the Exchange Agreement, together with all agreements, certificates
and schedules delivered in connection therewith, constitute the entire agreement
between the Parties and shall supersede all previous communications,
representations, agreements or understandings, either oral or written, between
the parties with respect to the subject matter hereof. No agreement or
understanding varying or extending this Agreement shall be binding upon either
party hereto, unless set forth in a writing which specifically refers to this
Agreement, signed by duly authorized officers or represent representatives
of
the respective parties, and the provisions hereof not specifically amended
thereby shall remain in full force and effect.
[Remainder
of this page intentionally left blank.]
2
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their duly authorized officers on the day and year first set forth
above.
Infosmart
Group, Limited
By:
/s/ Xxxx Xxx Ming
Name:
Xxxx Xxx Ming
Title:
Director
Info
Smart International Enterprises Limited
By:
/s/ Xxxx Xxx Ming
Name:
Xxxx Xxx Ming
Title:
Director
Info
Smart Technology Limited
By:
/s/ Xxxx Xxx Ming
Name:
Xxxx Xxx Ming
Title:
Director
Infoscience
Media Limited
By:
/s/ Xxxx Xxx Ming
Name:
Xxxx Xxx Ming
Title:
Director
Cyber
Merchants Exchange, Inc.
By:
/s/ Xxxxx X.
Xxxxxxx
Xxxxx
X.
Xxxxxxx, President
3
