Dated 15 July 2006 XACT AID, INC. and HAPPY EMERALD LIMITED
Dated
15 July 2006
XACT
AID, INC.
and
HAPPY
EMERALD LIMITED
THIS
AGREEMENT is made on the 15 day of July 2006 BETWEEN:
|
(1)
|
XACT
AID, INC. a company incorporated in Nevada with its place of business
at
000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000, XXX
(the
“Company”); and
|
|
(2)
|
HAPPY
EMERALD LIMITED whose registered office is at Road Town, Tortola
British
Virgin Islands (the “Consultant”).
|
WHEREAS
the Company wishes the Consultant to provide certain services to the Group
(as
hereinafter defined) in connection with its business operations and the
Consultant is willing to provide such services in accordance with the terms
and
conditions set out herein.
IT
IS
HEREBY AGREED as follows:
| 1. |
INTERPRETATION
|
1.1 In
this
Agreement, unless the context requires otherwise:
“associated
company” means, in relation to the Company, any subsidiary or holding company of
the Company, any subsidiary of any such holding company, and any company in
which the Company or any such holding company holds or controls directly or
indirectly not less than 20% of the issued share capital;
“Group”
means the Company and its associated companies from time to time and “member of
the Group” shall be construed accordingly;
“Services”
means the services set out in Schedule 1; and
“subsidiary”
and “holding company” have the meanings attributed to them in Section 2 of
the Companies Ordinance (Chapter 32 of the Laws of Hong Kong).
1.2 References
herein to Clauses and Schedules are to Clauses and Schedules in this Agreement
unless the context requires otherwise.
1.3 The
headings are inserted for convenience only and shall not affect the construction
of this Agreement.
1.4 Unless
the context requires otherwise, words importing the singular include the plural
and vice versa and words importing a gender include every gender.
| 2. |
APPOINTMENT
|
2.1 The
Company hereby confirms the engagement of the Consultant and the Consultant
hereby confirms its agreement to make available to the Group the Services upon
and subject to the terms set out in this Agreement.
2.2 The
engagement of the Consultant to provide the Services shall commence on
1 September 2006 until the termination hereof in accordance with the
provisions of Clause 9.
| 3. |
CONSULTANT’S
UNDERTAKINGS
|
The
Consultant warrants and undertakes to the Company that:
(a) the
Consultant will have the necessary skill and expertise to provide the Services
in the terms set out herein;
(b) the
Consultant will provide independent and unbiased advice to the Group in relation
to the Services;
(c) the
Services will be provided in a timely and professional manner and in accordance
with the time schedules reasonably stipulated by the Company, will conform
to
the standards generally observed in the industry for similar services and will
be provided with reasonable skill and care;
(d) the
Consultant will not, without the prior written consent of the Company, accept
any commission or gift or other financial benefit or inducement from any third
party in connection with the provision of the Services by the Consultant
hereunder and will ensure that its employees, agents and subcontractors will
not
accept the same and will forthwith give the Company details of any such
commission, gift, benefit or inducement which may be offered; and
(e) no
announcement or publicity concerning this Agreement or the Services or any
matter ancillary thereto shall be made by the Consultant without the prior
written consent of the Company.
| 4. |
COMPANY’S
OBLIGATIONS
|
The
Company shall:
(a) make
available to the Consultant such office and secretarial services as may be
necessary for its work under this Agreement;
(b) ensure
that the Group’s employees co-operate fully with the Consultant in relation to
the provision of the Services; and
(c) promptly
furnish the Consultant with such information and documents as it may reasonably
request for the proper performance of its obligations hereunder.
| 5. |
PERSONNEL
|
5.1 The
parties shall each appoint a representative who shall have full authority to
take all necessary decisions regarding the Services.
5.2 The
parties shall procure their representatives to meet at least once a month during
the continuance of this Agreement to discuss and minute the progress of the
Services.
-2-
| 6. |
FEES
AND EXPENSES
|
6.1 In
consideration of the provision of the Services, the Company shall issue to
the
Consultant 561,245 Convertible Preferred Common Stock in the Company credited
as
fully paid, such Convertible Preference Common Stock to contain such rights,
privileges and preferences as set forth in Schedule 2 attached hereto, to
be issued in advance for the Services to be performed.
| 7. |
CONFIDENTIAL
INFORMATION
|
7.1 The
Consultant shall not use or divulge or communicate to any person (other than
those whose province it is to know the same or with the authority of the
Company):
(a) any
confidential information concerning the products, customers, business, accounts,
finance or contractual arrangements or other dealings, transactions or affairs
of the Group which may come to the Consultant’s knowledge in the course of
providing the Services;
(b) any
information concerning the Services
and
the
Consultant shall use its best endeavours to prevent the unauthorised publication
or disclosure of any such information or documents.
7.2 The
Consultant shall ensure that its employees, agents and sub-contractors are
aware
of and comply with the confidentiality and non-disclosure provisions contained
in this Clause and the Consultant shall indemnify the Group against any loss
or
damage which the Group may sustain or incur as a result of any breach of
confidence by any of such persons.
7.3 If
the
Consultant becomes aware of any breach of confidence by any of its employees,
agents or sub-contractors it shall promptly notify the Company and give the
Group all reasonable assistance in connection with any proceedings which the
Group may institute against any such persons.
7.4 The
provisions of this Clause shall survive the expiration or termination of this
Agreement but the restrictions contained in Clause 7.1 shall cease to apply
to any information which may come into the public domain otherwise than through
unauthorised disclosure by the Consultant, its employees, agents or
sub-contractors.
| 8. |
ASSIGNMENT
|
The
Consultant shall not be entitled to assign or sub-contract any of its rights
or
obligations under this Agreement.
| 9. |
TERMINATION
|
9.1 Either
party shall be entitled to terminate this Agreement at any time by giving
180 days’ prior notice in writing to the other.
-3-
9.2 Either
party (the “non-defaulting party”) shall be entitled to terminate this Agreement
forthwith by giving notice in writing to the other (the “defaulting party”) if
the defaulting party shall:
(a) commit
any serious or persistent breach of any of its obligations hereunder and (in
the
case of a breach capable of being remedied) shall have failed, within
14
days
after the receipt of a written request from the non-defaulting party so to
do,
to remedy the breach (such request to contain a warning of the non-defaulting
party’s intention to terminate);
(b) pass
a
resolution for winding up (otherwise than for the purpose of a bona fide scheme
of solvent amalgamation or reconstruction) or a court of competent jurisdiction
shall make an order to that effect;
(c) make
any
voluntary arrangement with its creditors or become subject to an administration
order;
(d) have
a
receiver or administrative receiver appointed of it or over any part of its
undertaking or assets; or
(e) cease,
or
threaten to cease, to carry on business.
9.3 On
the
termination of this Agreement:
(a) all
rights and obligations of the parties under this Agreement shall automatically
terminate except for such rights of action as shall have accrued prior thereto
and any obligations which expressly or by implication are intended to come
into
or continue in force on or after such termination;
(b) the
Consultant shall give the Company, at its request, all reasonable cooperation
in
transferring all sub-contracts made by the Consultant hereunder to the extent
that the sub-contractors so approve.
| 10. |
INDEMNITY
|
The
Consultant shall indemnify the Group and keep the Group fully and effectively
indemnified against any and all losses, claims, damages, costs, charges,
expenses, liabilities, demands, proceedings and actions which the Group may
sustain or incur or which may be brought or established against it by any person
and which in any case arises out of or in relation to or by reason
of:
(a) the
negligence, recklessness or wilful misconduct of the Consultant, its employees,
agents or subcontractors ill the provision of the Services;
(b) the
breach of any of the warranties and undertakings contained in Clause 3
hereof; or
(c) any
unauthorised act or omission of the Consultant, its employees, agents or
sub-contractors.
-4-
| 11. |
FORCE
MAJEURE
|
Neither
party shall be liable for any delay in performing any of its obligations under
this Agreement if such delay is caused by circumstances beyond the reasonable
control of the party so delaying and such party shall be entitled (subject
to
giving the other party full particulars of the circumstances in question and
to
using its best endeavours to resume full performance without avoidable delay)
to
a reasonable extension of time for the performance of such
obligations.
| 12. |
RELATIONSHIP
OF THE PARTIES
|
The
Consultant is an independent contractor and nothing in this Agreement shall
render it an agent or partner or employee of the Group and the Consultant shall
not hold itself out as such. The Consultant shall not have any right or power
to
bind any member of the Group to any obligation.
| 13. |
GENERAL
PROVISIONS
|
13.1 Any
notice, demand or other communication between the parties:
(a) may
be
sent by personal delivery, post, facsimile or other written form of electronic
communication to the last known address;
(b) if
sent
by post to an address in Hong Kong, shall be treated as served on the second
day
following dispatch;
(c) if
sent
by facsimile or other form of electronic communication, shall be treated as
served at the time of sending.
13.2 Any
accommodation or indulgence or failure to enforce a right shall not be construed
as a waiver of the right of any party exercisable under this Agreement unless
a
waiver shall be specifically stated in writing signed by such
party.
13.3 This
Agreement constitutes the entire understanding between the parties concerning
the subject matter hereof. No amendments or changes shall be made to this
Agreement unless agreed to in writing by both parties. Each provision of this
Agreement shall be construed separately and notwithstanding that the whole
or
any part of any such provision may prove to be illegal or unenforceable the
other provisions of this Agreement and the remainder of the provision in
question shall continue in full force and effect.
13.4 Each
party shall bear its own costs and expenses in connection with the preparation,
negotiation and execution of this Agreement.
13.5 The
formation, validity, performance and interpretation of this Agreement and of
each Clause and part hereof shall be governed by the laws of Hong Kong and
the
parties agree to the non-exclusive jurisdiction of the courts of Hong
Kong.
-5-
IN
WITNESS WHEREOF the parties hereto have signed this Agreement the day and year
first above written.
SIGNED
by:
for
and
on behalf of XACT
AID, INC.
in
the
presence of:
SIGNED
by:
for
and
on behalf of HAPPY
EMERALD LIMITED
in
the
presence of:
-6-
SCHEDULE 1
The
Services
All
kind of advisory services in relation to the business operation of the Company
including but not limited to marketing, business development and
branding.
S-1-1
SCHEDULE 2
TERMS
OF
CONVERTIBLE PREFERRED COMMON STOCK
LIQUIDATION
PREFERENCE:
$4.00
per share.
DIVIDENDS:
No
mandatory dividends.
CONVERSION:
Upon
full conversion, the Convertible Preferred Common Stock will be convertible
into
51,749,314 shares of the Company’s Common Stock (subject to customary
adjustments for stock splits, reorganizations, recapitulations,
etc.).
VOTING:
Same as
common stock voting rights.
S-2-1
