EXHIBIT 10.12
APPROVED & EXECUTED ON DECEMBER 30, 2005
GENERAL PARTNERSHIP AGREEMENT
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This Agreement is made and entered into as of the 30 day of December,
2005 between GENESIS EQUITY PARTNERS, LLC, a US limited liability partnership
(referred to as "GEP") and XXX XX GROUP, LTD., registered in the People's
Republic of China (referred to as the "Company").
In consideration of the mutual promises made herein and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. PURPOSE. The Company hereby engages GEP for the term specified in
Section 2 hereof to provide consulting services to the Company as a
non-exclusive external consultant in connection with financial and similar
matters upon the terms and conditions set forth herein.
2. TERM. Except as otherwise specified in Section 4 hereof, this
Agreement between GEP and the Company is for the 18 month period commencing on
the date hereof and may be terminated by the Company or GEP at any time upon 60
days written notice.
3. DUTIES OF GENESIS EQUITY PARTNERS.
3.1 REGISTRATION SERVICES: During the term of this Agreement,
GEP shall provide the Company with corporate finance and related financial
registration services, advice with regards to, establishing the Company as a
registered corporation in the United States, raising money in the private sector
through a private placement, going public and filing a registration statement,
advise the Company with regards to listing its stock on the Pink Sheets, OTCBB,
NASDAQ SmallCap, NASDAQ NMS or other Western public stock exchanges.
GEP may recommend and obtain legal counsel; an SEC registered
accounting firm, transfer agent and financial printer on behalf of and for the
Company. GEP shall be responsible for all legal and professional costs up to and
through the effectiveness of a registration statement. All subsequent fees and
costs are included hereunder in section 4.2
GEP shall devote such time and effort to the performance of
its duties hereunder as GEP deems reasonably necessary. GEP may look to others
for such factual information, investment recommendations, economic advice and/or
research, upon which to base its advice to the Company hereunder, as it shall
deem appropriate.
In addition, GEP shall hold itself ready to assist the Company
in evaluating and negotiating particular contracts or transactions, if requested
to do so by the Company, upon reasonable written notice, and GEP will undertake
such evaluations and negotiations upon prior written agreement as to additional
compensation to be paid by the Company to GEP with respect to such evaluations
and negotiations and their related expenses.
The Company recognizes that GEP now renders and may continue
to render financial and other registration services to other individuals and
entities which may or may not conduct activities similar to those of the Company
and acknowledges that GEP shall be free to render services of any kind to any
other corporation, firm, individual or association.
GENESIS EQUITY PARTNERS, LLC
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APPROVED & EXECUTED ON DECEMBER 30, 2005
3.2 POST-REGISTRATION SERVICES: GEP will provide the Company
Post-Registration services including but not limited to:
o Assistance in preparation and completion of documents required for
submission to the SEC by the Company via the XXXXX database
o Assistance in public relations, including coordination of all investor
relation's efforts, including stock market support and awareness
o Assistance in quarterly and annual reports preparation
o Assistance in financial auditing
o Assistance in SEC regulation compliance
o Assistance in fund raising
o Design and set up of a US Website for the Company to address US
shareholder needs
o Assistance in locating and pre-qualifying potential merger candidates
o Assistance in business development in other areas that the Company may
need
4. COMPENSATION.
4.1 REGISTRATION SERVICES: In consideration for the services
rendered within 90 days by GEP to the Company pursuant to section 3.1
("Registration Services") of this Agreement, the Company shall pay a service fee
of USD 100 to GEP upon entering into the agreement herein.
Upon completion of the Company's registration, the Company
shall issue and deliver to GEP shares of common stock equivalent to 35% of the
Company's total shares.
In the case of a Reverse Merger, GEP will be responsible for
the cost of the Shell and any attendant legal or professional services directly
or indirectly related to the purchase of the Shell, the restructuring of the
Shell and/or the expenses of or relating to the resolution of any outstanding
legal or business issues extending from the Shell's past or present operating
history.
4.2 POST-REGISTRATION SERVICES: In consideration for the
services rendered by GEP to the Company pursuant to section 3.2
("Post-Registration Services") of this agreement, the Company shall pay to GEP a
general service fee of USD 10,000 per month in cash or in the form of shares of
the Company's common stock (a value of USD 10,000). Such said shares are to be
registered with the SEC via the company non-qualified employed option plan. This
service fee payment shall not start until the Company receives pre-registration
or post-registration funding of USD 1.5 million or more.
Additionally, GEP can exercise options to purchase the company
common stock at 30% discount to the market price. The Company and GEP will
determine the number of options upon the initiation of the contract. Such said
options will be registered with the SEC via the company non-qualified employee
option plan.
5. EXPENSES OF GEP. In addition to the shares payable hereunder and
regardless of whether any private offering or registration statement is
consummated, the Company shall reimburse GEP for the reasonable fees and
disbursements of GEP's counsel and GEP's reasonable travel and out-of-pocket
expenses incurred in connection with the services performed by GEP pursuant to
this
GENESIS EQUITY PARTNERS, LLC
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APPROVED & EXECUTED ON DECEMBER 30, 2005
Agreement and at the request of the Company, including without limitation,
hotels, food and associated expenses and long-distance telephone calls. GEP
shall account for such expenses to the Company; provided, however, that any
expenses in excess of $1,000 shall require the prior written approval of the
Company, which will not be unreasonably withheld. Such reimbursement shall
accumulate and be offset or paid monthly.
6. LIABILITY OF GEP.
6.1 In furnishing the Company with the advice and other
services as herein provided, neither GEP nor any officer, director or agent
thereof shall be liable to the Company or its creditors for any acts and/or
omissions attributable to or arising from such services, including, but not
limited to, errors of judgment in connection therewith, but not including
intentional or willful misconduct by GEP in the performance of such services.
6.2 It is further understood and agreed that GEP may rely upon
information furnished to it reasonably believed to be accurate and reliable and
that, except as herein provided, GEP shall not be accountable for any loss
suffered by the Company by reason of the Company's action or inaction on the
basis of any advice, recommendation or approval of GEP, its partners, employees
or agents.
6.3 The Company acknowledges that all opinions and advice
(written or oral) given by GEP to the Company in connection with GEP's
engagement are intended solely for the benefit and use of the Company in
considering the transaction to which they relate, and the Company agrees that no
person or entity other than the Company shall be entitled to make use of or rely
upon the advice of GEP to be given hereunder, and no such opinion or advice
shall be used for any other purpose or reproduced, disseminated, quoted or
referred to at any time, in any manner or for any purpose, nor may the Company
make any public references to GEP, or use GEP's name in any annual reports or
any other reports or releases of the Company without GEP's prior written
consent.
7. COMPANY INFORMATION
7.1 The Company shall furnish to GEP all data, material and
other information relevant to the performance by GEP of its obligations under
this Agreement, or particular projects as to which GEP is acting as GEP, which
will permit GEP to know all facts material to the advice to be rendered, and all
material or information reasonably requested by GEP. The Company acknowledges
and agrees that in performing its services under this engagement, GEP may rely
upon the data, material and other information supplied by the Company without
independently verifying the accuracy, completeness or veracity of same. In the
event that the Company fails or refuses to furnish any such data, material or
information reasonably requested by GEP, and thus prevents or impedes GEP's
performance hereunder, any inability of GEP to perform shall not be a breach of
its obligations hereunder.
7.2 Except as contemplated by the terms hereof or as required
by applicable law, GEP shall keep confidential all non-public information to any
third party without the Company's prior written consent, other than to such of
its employees and as GEP determines in its sole judgment need to have access
thereto. Notwithstanding the foregoing, GEP shall not be required to maintain
confidentiality with respect to information (i) which is or becomes part of the
public domain; (ii) of
GENESIS EQUITY PARTNERS, LLC
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APPROVED & EXECUTED ON DECEMBER 30, 2005
which it had independent knowledge prior to disclosure; (iii) which comes into
the possession of GEP or its employees or agents in the normal and routing
course of its own business from and through independent non-confidential
sources; (iv) which is required to be disclosed by GEP pursuant to legal process
or in accordance with governmental or regulatory requirements, or (v) which is
exercised in relation to or in accordance with the fulfillment of GEP's
"Post-Registration Services" obligations.
7.3 If GEP is requested or required (by oral questions,
interrogatories, requests for information or document subpoenas, civil
investigative demands, or similar process) to disclose any confidential
information supplied to it by the Company, or the existence of other
negotiations in the course of its dealings with the Company or its
representatives, GEP shall, unless prohibited by law, promptly notify the
Company of such request(s) so that the Company may seek an appropriate
protective order.
7.4 The Company assures GEP that it complies with the laws,
rules and regulations of the Chinese authorities, including--but not limited
to--legal, tax, municipal, provincial, and central government regulators and
agencies.
8. INDEMNIFICATION. The Company agrees to indemnify and hold harmless
GEP, its partners, employees, agents, counsel, representatives and controlling
persons (and the officers, directors, employees, agents, representatives and
controlling persons of each of them) from and against any and all losses,
claims, damages, liabilities, costs and expenses (and all actions, suits,
proceedings or claims in respect thereof) and any legal or other expenses in
giving testimony or furnishing documents in response to a subpoena or otherwise
(including, without limitation, the cost of investigating, preparing or
defending any such action, suit, proceeding or claim, whether or not in
connection with any action, suit, proceeding or claim in which GEP is a party),
as and when incurred, directly or indirectly, caused by, relating to, based upon
or arising out of GEP's service pursuant to this Agreement. The Company further
agrees that GEP shall incur no liability to the Company or any other party on
account of this Agreement or any acts or omissions arising out of or related to
the actions of GEP relating to this Agreement or the performance or failure to
perform any services under this Agreement, except for GEP's intentional or
willful misconduct. The obligations of the Company under the Section shall
survive the termination of this Agreement.
9. INDEPENDENT CONTRACTOR. GEP shall perform its services hereunder as
an independent contractor and not as an employee of the Company or an affiliate
thereof. It is expressly understood and agreed to by the parties hereto that GEP
shall have no authority to act for, represent or bind the Company or any
affiliate thereof in any manner, except as may be agreed to expressly by the
Company in writing from time to time.
10. MISCELLANEOUS.
10.1 This Agreement between the Company and GEP constitutes
the entire agreement and understanding of the parties hereto and supersedes any
and all previous agreements and understandings, whether oral or written, between
the parties with respect to the matters set forth herein.
GENESIS EQUITY PARTNERS, LLC
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APPROVED & EXECUTED ON DECEMBER 30, 2005
10.2 Any notice or communication permitted or required
hereunder shall be in writing and shall be deemed sufficiently given if
hand-delivered or sent (i) postage prepaid by registered mail, return receipt
requested, or (ii) by facsimile to the respective parties as set forth below, or
to such other address as either party may notify the other in writing:
If to the Company to: __________________________
__________________________
Facsimile: _______________
with a copy to: ____________________, Esq.
__________________________
__________________________
__________________________
Facsimile: _______________
If to Genesis Equity Partners, LLC to:
Xxxxxxx Xxxxxxx, Director
Genesis Equity Partners, LLC
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000 XXX
Facsimile: 000-000-000-0000
with a copy to: Xxxxx Xxxxxxxxx, Esquire
Genesis Equity Partners, LLC
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000 XXX
Facsimile: 000-000-000-0000
10.3 This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors, legal
representative and assigns.
10.4 The failure or neglect of the parties hereto to insist,
in any one or more instances, upon the strict performance of any of the terms or
conditions of this Agreement, or their waiver of strict performance of any of
the terms or conditions of this Agreement, shall not be construed as a waiver or
relinquishment in the future of such term or condition, but the same shall
continue in full force and effect.
10.5 This Agreement may be executed in any number of
counterparts, each of which together shall constitute one and the same original
document.
10.6 No provision of this Agreement may be amended, modified
or waived, except in a writing signed by all of the parties hereto.
10.7 This Agreement shall be construed in accordance with and
governed by the laws of the United States of America, without giving effect to
conflict of law principles.
GENESIS EQUITY PARTNERS, LLC
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APPROVED & EXECUTED ON DECEMBER 30, 2005
10.8 Force Majeure: Any delay or nonperformance of any
provision of this Agreement caused by conditions beyond the reasonable control
of the performing party shall not constitute a breach of this Agreement provided
that the delayed party has taken reasonable measure to notify the other of the
delay in writing.
"Conditions beyond & party's reasonable control" include, but
are not limited to, natural disasters, acts of government after the date of the
Agreement, power failure, fire, flood, acts of God, labor disputes, acts of war
and epidemics. Failure of subcontractors and inability to obtain materials shall
not be considered a condition beyond a party's reasonable control.
10.9 Non-Solicitation of GEP's Employees: Company agrees not
to knowingly hire or solicit GEP's employees during performance of this
Agreement and for a period of two years after termination of this Agreement
without Consultant's written consent.
10.11 Mediation and Arbitration: If a dispute arises under
this Agreement, the parties agree to first try to resolve the dispute with the
help of a mutually agreed-upon mediator in the State of Florida. Any costs and
fees other than attorney fees associated with the mediation shall be shared
equally by the parties. If the dispute is not resolved through mediation, the
parties agree to submit the dispute to binding arbitration in the State of
Florida under the rules of the American Arbitration Association. Judgment upon
the award rendered by the arbitrator may be entered in any court with
jurisdiction to do so.
10.12 Attorney Fees: If any legal action is necessary to
enforce this Agreement, the prevailing party shall be entitled to reasonable
attorney fees, costs and expenses.
10.13 Complete Agreements: This Agreement together with all
exhibits, appendices or other attachments, which are incorporated herein by
reference, is the sole and entire Agreement between the parties. This Agreement
supersedes all prior understandings, agreements and documentation relating to
such subject matter. In the event of a conflict between the provisions of the
main body of the Agreement and any attached exhibits, translations, appendices
or other materials, the English language Agreement shall take procedure.
Modifications and amendments to this Agreement, including any exhibit of
appendix hereto, shall be enforceable only if they are in writing and are signed
by authorized representative of both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the day and year first above written.
XXX XX GROUP, LIMITED
By: /s/ Yang Liankuan
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Name: Yang Liankuan
Title: CEO
GENESIS EQUITY PARTNERS, LLC
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APPROVED & EXECUTED ON DECEMBER 30, 2005
AGREED AND ACCEPTED TO AS OF
THE DATE FIRST ABOVE WRITTEN
GENESIS EQUITY PARTNERS, LLC
By: /s/ Xxxxxxx Xxx
---------------
Name: Xxxxxxx Xxx
Title: Director
GENESIS EQUITY PARTNERS, LLC
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