EXHIBIT 99.1
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CONSULTING AGREEMENT
This Agreement is made and entered into as of the 20th day of December 2005
between Warner Technology (the "Consultant") with an office at 00 Xxxxxxxx Xx.
Xxxx Xxxxxxx, XX 00000, and Moving Bytes Inc., (the "Client") with an office at
Xx.0 Xxxxx 0, Xxxxx X, Xxxxxxxx Building, Hi-tech Industrial Park, Nanshan
District, Shenzhen, 518057, P.R.China.
Tel: 0000000000000000
The Consultant is engaged in the business of providing corporate advisory and
consulting services; and the Client is desirous of retaining the Consultant for
the purpose of obtaining corporate advisory and consulting services to assist
with various business development and organizational matters for Moving Bytes
Inc.
In consideration of the mutual promises made herein and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Term. This Agreement shall be for a period of twelve months beginning
December 20th, 2005 and ending December 20th, 2006. This Agreement may be
cancelled by the Company at any time with proper notice. If cancelled
prior to December 20th, 2006 the shares due to the Consultant will be
prorated over the period of time services were provided to the Company.
2. Services. Consultant's duties may include but will not necessarily be
limited to providing recommendations concerning the following matters:
>> Corporate goals and their implementation
>> Formulating a comprehensive business plans
>> Introductions to strategic partners, and distribution channels
>> A finder of acquisition and or merger candidates
>> A finder of potential sources of business and financing sources
>> Introductions to broker dealers, analysts, angel investors, and
venture capital groups
>> Introductions to potential management / director candidates
The parties hereto acknowledge and agree that the Consultant carries no
professional licenses and is not rendering legal advice, acting as an
investment advisor, or broker dealer. It is further acknowledged and
agreed that the consulting advisory services to be provided to the Client
hereunder shall not be rendered in connection with the offer and sale of
securities in a capital raising transaction or in connection with any
stock promotion activities.
3. Compensation. In consideration of the foregoing, the Client agrees to pay
the Consultant a Consulting Fee of One million shares of Client common
stock issued no earlier than December 30, 2005 and no later than December
31, 2005 and forty four million shares of Client common stock issued no
later than December 31, 2006, all of which shares shall be registered for
resale on a Form S-8 Registration Statement, and/or such other form of
registration statement as counsel to the Client shall determine to be
necessary or appropriate, to be filed with the Securities and Exchange
Commission. Shares will be issued to Xx. Xxx Xxxx Zhou or his designees.
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4. Company Information. The Client acknowledges that all opinions and advice
(written and/or oral) given by Consultant to the Client in connection with
Consultant's engagement are intended solely for the benefit and use of the
Client, and its affiliates. The Client and its affiliates agrees that no
person or entity other than the Client and its affiliates (including its
officers and directors) shall be entitled to make use of or rely upon the
advice of Consultant to be given hereunder, and no such opinion or advice
shall be used for any manner or for any purpose, nor may the Client make
any public references to Consultant, or use the Consultant's name in any
annual reports or any other reports or releases of the Company, without
Consultant's prior written consent. The Client recognizes and confirms
that, in advising the Client hereunder; Consultant will use and rely on
data, material, and other information furnished to Consultant by the
Client and its affiliates, without independently verifying the accuracy,
completeness or veracity of the information.
5. Confidentiality.
(a) Consultant will, and will direct its employees, representatives,
agents and advisors ("Representatives") to, hold in confidence and not use
or disclose any confidential information of the Client. Notwithstanding
the foregoing, Consultant shall not be required to maintain
confidentiality with respect to information (i) which is or becomes part
of the public domain other than due to the breach of this Agreement by
Consultant or its Representatives, (ii) of which it or its Representatives
has independent knowledge prior to disclosure by the Client; (iii) which
comes into the possession of Consultant or its Representatives in the
normal and routine course of its own business from and through independent
non-confidential sources; or (iv) which is required to be disclosed by
Consultant or its Representatives under applicable laws, rules, or
regulations or by a government agency or court of competent jurisdiction.
If Consultant or any of its Representatives is requested or required to
disclose any confidential information supplied to it by the Client,
Consultant shall, unless prohibited by law, promptly notify the client of
such request(s) so that the Client may seek an appropriate protective
order. In addition, Consultant acknowledges that it is aware, and that it
will advise its Representatives who receive confidential information, that
the United States securities laws prohibit any person who has material,
non-public information from purchasing or selling securities of the Client
(and options, warrants and rights relating thereto) and from communicating
such information to any other person under circumstances in which it is
reasonably foreseeable that such person (including, without limitation,
any of the Consultant's Representatives) is likely to purchase or sell
such securities.
(b) As used in this Section, the term "confidential information" shall
mean any and all information regarding the Client's business and affairs
(including, without limitation, information regarding the Client's assets,
policies, operations, trade secrets, other intellectual property,
financial statements and projections, tax returns, regulatory matters,
litigation, business and marketing plans, representatives, and employees).
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(c) Consultant acknowledges that the confidential information is of a
unique character, contains trade secrets, and has other substantial
proprietary value to the Client, such that if the Consultant does not
uphold its obligations, the Client will be irreparably harmed. Consultant
therefore agrees that the Client shall be entitled to have a court enforce
this Agreement and be entitled to an injunction or any appropriate decree
of specific performance for any actual or threatened violations or
breaches by the Consultant or its Representatives, without the necessity
of showing that actual damages or that monetary damages would not afford
an adequate remedy. Such injunctive remedies shall not be deemed to be the
exclusive remedies for a breach by a Consultant or its Representatives but
shall be in addition to all other remedies available at law or equity to
the Client.
(d) All confidential information (and all copies thereof) obtained or
possessed by the Consultant or its Representatives shall be promptly
returned upon the request of the Client or any of its representatives;
provided, however, that, in lieu of delivering any written materials of
the type described in paragraph (b) hereof, such written materials may be
destroyed.
(e) The provisions of this Section 5 shall survive the termination of this
Agreement.
6. Other Consulting Clients. The Client acknowledges that Consultant and its
affiliates are in the business of providing services and consulting advice
to others; and nothing herein contained shall be construed to limit or
restrict Consultant in conducting such business with others, or in
rendering such advice to others. The Client agrees to allow the Consultant
to represent the Client as a client of the Consultant on documentation
that would be made available to third parties.
7. Indemnification. (a) The Client agrees to indemnify and hold harmless
Consultant, its employees, officers, agents, representatives and
controlling persons from and against any and all losses, claims, damages,
liabilities, suits, actions, proceedings, costs and expenses
(collectively, "Damages"), including, without limitation, reasonable
attorneys' fees and expenses, as and when incurred, if such Damages were
directly caused by, relating to, based upon or arising out of the
rendering by Consultant of services pursuant to this Agreement, so long as
Consultant shall not have engaged in illegal, intentional or willful
misconduct in connection with the services provided which form the basis
of the claim for indemnification. This paragraph shall survive the
termination of this Agreement.
(b) The Consultant agrees to indemnify and hold harmless the Client from
and against any and all Damages, including, without limitation, reasonable
attorney fees and expenses, as and when incurred, if such Damages were
directly caused by, relating to, based upon or arising out of the
rendering by Consultant of services pursuant to this Agreement, if
Consultant shall have engaged in illegal, negligent, intentional or
willful misconduct, in connection with the services provided which form
the basis of the claim for indemnification. This paragraph shall survive
the termination of this Agreement.
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8. Independent Contractor. Consultant shall perform its services hereunder as
an independent contractor and not as an employee or agent of the Client or
any affiliate thereof. Consultant shall have no authority to act for,
represent or bind the Client or any affiliate thereof in any manner,
except as may be expressly agreed to by the Client in writing from time to
time.
9. Notices. Any notice to be given by either party to the other hereunder
shall be sufficient if in writing and sent by (a) nationally recognized
overnight courier, (b) facsimile transmission electronically confirmed,
(c) hand delivery against receipt, (d) registered or certified mail,
return receipt requested, in each case addressed to such party at the
address specified on the first page of this Agreement or such other
address as either party may have given to the other in writing.
10. Miscellaneous. This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof. No provision of this
Agreement may be amended, modified or waived, except in writing signed by
both parties. This Agreement shall be binding upon and insure to the
benefit of each of the parties and their respective successors, legal
representatives and assigns. This Agreement shall not be assigned by
either party without the written consent of the other party. This
Agreement may be executed in counterparts. This Agreement shall be
constructed and enforced in accordance with the laws of the State of New
York, without giving effect to conflicts of laws principles.
11. Expenses. The Client agrees to reimburse the Consultant for all expenses
that are pre-approved in writing by the Client. These would include but no
be limited to travel, legal and accounting expenses related to due
diligence, as well as general business expenses incurred in the course of
providing services to the Client hereunder.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the day and year first above written.
CONSULTANT:
WARNER TECHNOLOGY AND INVESTMENT CORP.
By: /s/ Xxx Xxxx Xxxx
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Name: Xxx Xxxx Zhou
Title: President
CLIENT:
MOVING BYTES INC.
By: /s/ Xx Xxxx Qing
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Name: Xx Xxxx Qing
Title: President
