UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event
reported): August 28, 2014
XcelMobility Inc.
(Exact Name of Registrant
as Specified in its Charter)
|
|
|
|
|
Nevada |
|
000-54333 |
|
98-0561888 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
2225 East Bayshore Road, Suite 200
Palo Alto, CA |
|
94303 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
Registrant’s telephone number,
including area code: (650) 320-1728
Former Name or Former Address, if Changed
Since Last Report:
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Section 1 – Registrant’s Business and Operations
Item 1.01 Entry into a Definitive Material Agreement
Termination Agreement – Gregory Tse
Effective September 22, 2014, XcelMobility, Inc., a Nevada corporation
(the “Company”) entered into a Termination Agreement (the “Termination Agreement”) with Mr. Gregory Tse,
pursuant to which the Board Advisory Agreement (the “Advisory Agreement”), dated August 14, 2012, by and between the
Company and Mr. Tse shall be terminated upon the resignation of Mr. Tse from the board of directors of the Company. In full satisfaction
of all amounts owed to Mr. Tse for his services as a member of the board of directors of the Company, Mr. Tse shall receive 360,000
shares of Company common stock and Ninety Thousand Dollars ($90,000) upon the closing of a debt and/or equity financing by the
Company of at least One Million Dollars ($1,000,000).
The foregoing description of the Termination Agreement is qualified
in its entirety by reference to the provisions of the Termination Agreement filed as exhibit 10.1 to this Current Report on Form
8-K, which is incorporated herein by reference.
Amended and Restated Management Service Agreements
On August 28, 2014, the Company entered into Amended and Restated
Management Service Agreements (the “Management Agreements”) with Ron Strauss, Chairman of the board of directors of
the Company, Renyan Ge, Chief Executive Officer of the Company and Xili Wang, Chief Financial Officer of the Company (each an “Executive
Officer” and collectively, the “Executive Officers”). The Management Agreements provide for indefinite terms
of employment and include annual compensation for each of the Executive Officers as set forth below:
Ron Strauss – $180,000;
option to purchase 500,000 shares of common stock
Renyan Ge - $180,000; option to
purchase 500,000 shares of common stock
Xili Wang - $150,000; option to
purchase 250,000 shares of common stock
The term and exercise price for the options to be issued to
the Executive Officers will be determined by the board of directors of the Company in accordance with the XcelMobility, Inc. 2013
Equity Incentive Plan.
In addition, the Executive Officers have the right to receive
shares of common stock of the Company in lieu of their respective base salaries, at a price per share equal to the lower of (i)
the lowest publicly traded share price for the Company’s common stock during the thirty (30) days prior to such issuance,
or (ii) the per share price paid by a third party investor during the prior twelve (12) months for shares of the Company’s
common stock. The number of shares of common stock to be received by an Executive Officer in lieu of base salary shall equal an
amount that is twice the amount of accrued and unpaid base salary for such Executive Officer. For each share of common stock to
be received by an Executive Officer in lieu of base salary, such Executive Officer shall receive an option to purchase ten (10)
shares of common stock at the same valuation as the shares received in lieu of base salary. The Executive Officers shall be eligible
for an annual bonus to be determined by the board of directors of the Company.
The Management Agreements may be terminated by the Company at
any time. If such termination is without cause, the Executive Officer is entitled to certain severance payments. If the Company
undergoes a change in control (as defined in the Management Agreements) and any Executive Officer is terminated within eighteen
(18) months of such change in control, such Executive Officer is entitled to a lump sum payment of eighteen (18) months’
base salary, an additional bonus payment and full vesting of any outstanding options and restricted stock. The Executive Officers
may terminate their Management Agreement upon two (2) months’ written notice to the Company.
Pursuant to the terms of the Management Agreements, the Executive
Officers are subject to standard confidentiality restrictions and a non-competition provision which survives for six (6) months
following termination.
The foregoing description of the Management Agreements is qualified
in its entirety by reference to the provisions of the Management Agreements filed as exhibits 10.2, 10.3 and 10.4 to this Current
Report on Form 8-K, which is incorporated herein by reference.
Item 1.02 Termination of a Material Definitive Agreement
The disclosure set forth under Item 1.01 of this Current Report
on Form 8-K is incorporated into this Item.
Section 5 – Corporate Governance and Management
Item 5.02. Departure of Directors or Certain Officers;
Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Resignation of Director
Effective September 22, 2014, Mr. Gregory Tse resigned as a
member of the board of directors of the Company. There were no disagreements with the Company relating to Mr. Tse’s resignation,
and no correspondence was provided by Mr. Tse concerning the circumstances surrounding his resignation. Mr. Tse has been provided
with a copy of these disclosures and has not objected to anything contained herein.
The disclosure set forth under Item 1.01 of this Current Report
on Form 8-K is incorporated into this Item.
Material Compensatory Plan
The disclosure set forth under Item 1.01 of this Current Report on Form 8-K is incorporated into this Item.
Section 9 – Financial Statements and Exhibits
Item 9.01 Financial Statements
and Exhibits
| 10.1 | Termination Agreement, dated September 22, 2014, between XcelMobility, Inc. and Gregory Tse. |
| 10.2 | Amended and Restated Management Service Agreement, dated August 28, 2014, between XcelMobility and Ron Strauss. |
| 10.3 | Amended and Restated Management Service Agreement, dated August 28, 2014, between XcelMobility and Renyan Ge. |
| 10.4 | Amended and Restated Management Service Agreement, dated August 28, 2014, between XcelMobility and Xili Wang. |
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
|
XcelMobility Inc., |
|
a Nevada Corporation |
|
|
Dated: September 30, 2014 |
/s/ Renyan Ge |
|
Renyan Ge |
|
Chief Executive Officer |
Exhibit 10.1
TERMINATION
AGREEMENT
This Termination Agreement
(this “Agreement”), is entered into as of September _, 2014, by and between XcelMobility,
Inc., a Nevada corporation (“Pubco”) and Gregory Tse (the “Advisor”).
RECITALS
A. Advisor is a
member of the board of directors of Pubco.
B. Pubco
and Advisor had entered into that certain Board Advisory Agreement, dated August 14, 2012 (the “Advisory Agreement”)
pursuant to which Advisor is entitled to receive certain compensation from Pubco in consideration of his service as a director
of Pubco.
C. Advisory
has informed Pubco of his intent to resign as a member of the board of directors of the Company.
D. Pubco
and the Company wish to terminate the Advisory Agreement in accordance with Section 5 of the Advisory Agreement.
AGREEMENT
In consideration of
the foregoing recitals and the mutual promises set forth in this Agreement and for other consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto agree as follows:
1. Termination
of Advisory Agreement. The parties hereto acknowledge and agree that upon the resignation of Advisor from the board of directors
of the Company, and in accordance with Section 5 of the Advisory Agreement, the Advisory Agreement shall terminate and be of no
further force or effect, except for Sections 3 and 6 of the Advisory Agreement, and such termination shall be effective immediately
upon the execution hereof.
2. Compensation.
The parties hereto acknowledge that Advisor shall receive, in full satisfaction of all amounts and/or compensation accrued and
unpaid pursuant to the Advisory Agreement:
2.1 360,000
shares of Pubco common stock, par value $0.001; and
2.2 Ninety
Thousand Dollars ($90,000) which shall be payable upon the closing of a debt and/or equity financing of at least One Million Dollars
($1,000,000).
3. Release.
Advisor, on behalf of himself, his descendants, ancestors, dependents, heirs, executors, administrators, assigns, and successors,
and each of them, hereby covenants not to sue and fully releases, acquits, and discharges Pubco, and its subsidiaries and affiliates,
(collectively referred to as "Pubco Releasees") from all claims, rights, demands, actions, obligations and causes
of action of any and every kind, nature and character, known or unknown, that Advisor may now have or has ever had or will have
against them based on any act or omission that occurred through the date this Agreement is signed, including without limitation
: (a) any and all claims of “wrongful discharge,” breach of express or implied contract, breach of the implied
covenant of good faith and fair dealing, wrongful discharge in violation of public policy, intentional infliction of emotional
distress, negligent infliction of emotional distress, fraud and defamation; (b) any tort of any nature; (c) any and all
claims arising under any federal, state, county or municipal statute, constitution or ordinance, including but not limited to Title
VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Age Discrimination in Employment Act, the Older Workers
Benefit Protection Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act, and any other laws and
regulations relating to Advisor’s service as a member of the board of directors of the Company; (d) any and all claims
for compensation, bonuses, severance pay, stock options, restricted stock, vacation pay, expense reimbursement, attorneys’
fees and costs; and (e) any and all claims for relief of any kind, regardless of the basis for such claim or the nature of
the remedy sought.
4. General
Provisions.
4.1 Amendments
and Waivers. No waiver, modification or amendment of any term, condition or provision of this Agreement shall be valid or of
any effect unless made in writing, signed by the party to be bound or its duly authorized representative and specifying with particularity
the nature and extent of such waiver, modification or amendment. Any waiver by any party of any default of the other shall not
affect or impair any right arising from any subsequent default.
4.2 Governing
Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of Nevada, without giving effect to the conflicts of law principles thereof.
4.3 Counterparts.
This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
4.4 Entire
Agreement. This Agreement contains the entire understanding of the parties, and there are no further or other agreements or
understandings, written or oral, in effect between the parties
relating to the subject matter hereof.
4.5 Facsimile
Execution and Delivery. At the request of any party hereto, the requested party shall execute an original of this Agreement
as well as any facsimile, telecopy or other reproduction hereof. A facsimile, telecopy or other reproduction of this Agreement
may be executed by any of the parties hereto, and an executed
copy of this Agreement may be delivered by any of the parties hereto by facsimile, pdf file or similar electronic transmission
device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered
valid, binding and effective for all purposes.
[Signature Page Follows]
IN WITNESS WHEREOF,
the parties hereto have executed this Termination Agreement as of the date first written above.
|
Pubco: |
|
|
|
|
XcelMobility, Inc. |
|
|
|
|
By: |
|
|
|
Renyan Ge, Chief Executive Officer |
|
|
|
|
Advisor: |
|
|
|
|
|
|
Gregory Tse |
Signature Page
to Termination Agreement
Exhibit 10.2
THIS AMENDED AND RESTATED
MANAGEMENT SERVICE AGREEMENT entered into as of the28th day of August 2014 (the “Agreement”)
BETWEEN:
Xcelmobility
Inc., a corporation incorporated under the laws of Nevada, USA, and having an executive office at 2225
East Bayshore Road, Suite 200, Palo Alto, CA 94303.
(the “Company”)
AND:
Ron Strauss,
Businessman of 6th Floor, St. John's Building, 33 Garden Road, central, Hong Kong.
(“Executive”)
WHEREAS:
A. The
Company and Executive had previously entered into a Management Services Agreement, dated as of August 1, 2011 (the “Original
Agreement”);
B. The
Company and Executive wish to amend and restate certain provisions of the Original Agreement to reflect the parties’ mutual
agreement.
NOW THEREFORE in consideration
of the premises and mutual covenants herein contained, the parties hereto agree as follows:
1.0 MANAGEMENT
SERVICES
1.1 Executive
represents and warrants to the Company that Executive has the required skills and experience to perform the duties and exercise
the responsibilities required of Executive in the position of Executive Chairman of the Board.
1.2 Executive
and the Company agree to comply with and to be bound by the terms and conditions of this Agreement.
1.3 During
the term of employment, Executive shall well and faithfully serve and devote himself exclusively to the Company.
1.4 In
carrying out these duties and responsibilities, Executive undertakes to comply with all lawful instructions and directions which
he may receive from the Company. The duties and responsibilities to be carried out by Executive will be commensurate with the
duties of a Chairman of the Board. Executive shall report to the Board of Directors of the Company (the “Board”) as
a whole as requested.
1.5 Executive
agrees and understands that the effective performance of Executive’s duties requires the highest level of integrity and the
Company’s complete confidence in Executive’s relationship with other employees of the Company, and with all persons
dealt with by Executive in the course of his employment. Executive is required to ensure that he conducts himself in a professional,
business-like manner at all times.
1.6 Executive
acknowledges and agrees to familiarize himself with and to comply with all of the Company’s policies, practices and procedures
as adopted from time to time.
1.7 Executive
shall be subject to an annual performance review.
2.0 DUTIES
2.1 Job
descriptions specific to the position will be developed by the Compensation Committee of the Board, but in general terms Executive
shall be responsible for the following:
| (a) | Planning and organizing all of the activities of the
Board including: |
| (i) | the preparation for, and the conduct of, Board meetings; |
| (ii) | the quality, quantity and timeliness of the information
that goes to Board members; |
| (iii) | the formation of Board committees and the integration
of their activity with the work of the Board; |
| (iv) | the evaluation of the Board’s effectiveness and
implementation of improvements; |
| (v) | the development of the Board, including Director recruitment,
evaluation and compensation, and |
| (vi) | ongoing formal and informal communication with and among
Directors. |
| (b) | Supervising the annual and special meetings of the shareholders
as the Chairman of the Board. In conjunction with the CEO, the Chairman may meet with various groups (such as major shareholder
groups), governments, the financial press, industry associations etc. |
| (c) | Working closely with, and through the CEO, to: |
| (i) | participate in the development of the Company’s
vision, strategic agenda, and business plan to facilitate communication and understanding between management and the Board; |
| (ii) | ensure that operations conform with the Board’s view on corporate policy; and |
| (iii) | ensure, in consultation with the Human Resources Committee and the Board, that succession plans
are in place at senior executive levels. |
| (d) | In conjunction with the CEO, participating in external
relationships which fulfill the Company’s obligations as a member of industry and the community. |
| (e) | Providing the key link between the Board and management,
and as a result, having a significant communication, coaching and team-building responsibility, including by: |
| (i) | maintaining a close ongoing relationship and open communication with the CEO; |
| (ii) | representing the shareholders and Board to management and management to the shareholders and Board;
and |
| (iii) | monitoring and evaluating the performance of the CEO, in coordination with the Human Resources
Committee. |
| (f) | Attending all Board committee meetings as a non-voting
participant, provided, however, that at meetings of the Governance Committee, the Chairman of the Board shall be a voting member. |
| (g) | Carrying out the following duties on behalf of the Company: |
| (i) | ensuring that the Company meets its public company reporting
requirements; |
| (ii) | serving as the main point of contact with the Company’s
outside legal counsel; |
| (iii) | coordinating on financing matters; |
| (iv) | overseeing investor relations; and |
| (v) | overseeing media relations. |
| (g) | Carrying out special assignments in collaboration with
the CEO and management or the Board of Directors. |
3.0 DURATION
OF AGREEMENT
3.1 The
term of appointment and engagement of Executive shall commence on July 28, 2011 (the “Commencement Date”) and continue
for an indefinite term.
4.0 REMUNERATION
AND BENEFITS
4.1 In
consideration of Executive’s undertaking and performance of the obligations contained in this Agreement, the Company will
compensate Executive for his services as follows:
(a) Base
Salary: Executive will receive a base salary of $180,000 per year,
which shall be paid to Executive in bi-monthly installments.
(b) Options:
For each year that Executive is employed by the Company, he shall receive an option to purchase 500,000 shares of common stock
of the Company, in accordance with the XcelMobility, Inc. 2013 Equity Incentive Plan, as amended from time to time (the “Plan”),
and related option documents.
(c) Equity
In Lieu of Unpaid Base Salary: Executive shall be entitled to purchase shares of common stock of the Company at a price equal
to the lower of (a) the lowest publicly traded share price for the Company’s common stock during the thirty (30) days prior
to such issuance, or (b) the per share price paid by a third party investor during the past twelve (12) months for shares of the
Company’s common stock, in lieu of base salary that has accrued and remains unpaid, provided, however, that the number
of shares to be received by Executive shall equal an amount that is double such accrued and unpaid base salary. Additionally,
Executive shall be entitled to receive an option to purchase 10 shares of common stock of the Company for each share that he receives
in lieu of base salary pursuant to this Section 4.1(c) and at the same valuation
as the shares to be received in lieu of accrued and unpaid base salary.
As of the date of this Agreement, the accrued and unpaid base salary for Executive is $292,145.
(d) Benefits:
Executive shall be entitled to receive a monthly cash payment of $3,800 in lieu of any benefits provided by the Company, including
retirement fund payments.
(e) Vacation:
At a time or times which are mutually convenient for the Company and Executive, Executive shall be entitled to five (5) weeks’
vacation during each calendar year of his engagement, of which not more than two weeks shall be taken at one time. Executive will
be permitted to carry forward any unused vacation to the next year or receive compensation in kind.
(f) Bonus:
(i) Executive
is eligible for an annual bonus in an amount to be determined by
the board of directors
(ii) No
bonus shall be payable to Executive from the date that he ceases to be actively engaged by the Company. Specifically, Executive
is not entitled to a bonus for the year in which Executive terminates his engagement. In the event Executive’s engagement
is terminated in the absence of just cause, Executive will receive bonus payments for the entire notice period in the amount determined
by the average of the last two bonus payments made or $100,000 where no bonus payments have been made.
(g) Expenses:
The Company will reimburse or pay for all reasonable business expenses incurred by Executive in the execution of his duties. This
includes the expenses for airfare, accommodation and other business related expenses.
5.0 TERMINATION
5.1 This
Agreement may be terminated by the Company as follows:
(a) In
the absence of just cause by the Company, Executive will receive payments in lieu of notice, based upon the length of services
Executive has provided the Company:
|
Service
Period |
|
Notice |
|
(i) less than thirty six (36) months of service |
|
Eighteen (18) months’ notice |
|
|
|
|
|
(ii) more than thirty-six (36) months of service |
|
Thirty (30) months’ notice |
(b) Where
the Company elects to give Executive notice of termination of this Agreement, in the absence of just cause, Executive may choose
to receive payments due in either a lump sum, on a continuance basis or a combination of both.
(c) During
the period of notice, Executive will not be required to perform the responsibilities of his position and will return to the Company
all property in his possession that belongs to the Company.
(d) Where
there is just cause for termination of the engagement or if Executive is in material breach of his obligations under this Agreement,
Executive will not be entitled to notice, bonus payments or payment in lieu of notice of the termination of his management Services
Agreement. The engagement of Executive shall cease upon receipt of notice that his services are being terminated for just cause.
For the purposes of this Agreement, “just cause” will be defined by the common law.
5.2 If
a Change in Control is consummated during the term of this Agreement and within eighteen months immediately
following such Change in Control, Executive is terminated without cause, then Executive shall be entitled to:
(a) a
lump sum payment equal to eighteen (18) months of base salary, which such sum shall be paid upon Executive’ termination date;
(b) a
bonus of $75,000; and
(c) the
vesting schedule of each outstanding option held by Executive to purchase shares of common stock of the Company held by Executive
shall be fully accelerated so that the option shall become exercisable for an additional number of shares equal to 100% of the
shares of common stock subject to the option which are unvested immediately prior to such Change in Control; and (b) the vesting
schedule of each outstanding restricted stock award held by Executive shall be accelerated so that 100% of the number of unvested
shares subject to such restricted stock award shall vest in full.
"Change
In Control" shall mean the consummation of any of the following transactions effecting a change in ownership or control of
the Company:
(a)
a merger, consolidation or reorganization, unless securities representing more than fifty percent (50%) of the total combined
voting power of the voting securities of the successor corporation are immediately thereafter beneficially owned, directly or indirectly
and in substantially the same proportion, by the persons who beneficially owned the Company's outstanding voting securities immediately
prior to such transaction; or
(b) any
transfer, sale or other disposition of all or substantially all of the Company's assets; or
(c) the
acquisition, directly or indirectly by any person or related group of persons (other than the Company or a person that directly
or indirectly controls, is controlled by, or is under common control with, the Company), of beneficial ownership (within the meaning
of Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of securities possessing more than fifty percent (50%) of the
total combined voting power of the Company's outstanding securities pursuant to a tender or exchange offer made directly to the
Company's beneficial holders.
5.3 This
Agreement may be terminated by Executive with two (2) months’ written notice to the Company. The Company may waive this notice
requirement by written notice.
6.0 CONFIDENTIAL
INFORMATION AND PROPERTY
6.1 Executive
acknowledges that as the Chairman of the Board and in any other position the Executive may hold, a relationship of confidence,
trust and fiduciary obligation is created between Executive and the Company, and Executive will acquire information about certain
matters and things which are confidential to the Company, and which information is the exclusive property of the Company including:
(a) financial
statements, financial books and records, reserve reports and estimates and other related information;
(b) information
concerning products, pricing, sales and marketing policies, techniques and concepts, including costing information, in respect
of products and services provided or to be provided by Executive;
(c) lists
of present and prospective clients and related information, including names and addresses, borrowing habits and preferences of
present and prospective clients of the Company;
(d) purchasing
information, including the names and addresses of present and prospective suppliers of the Company and prices charged by such suppliers;
(e) computer
systems, computer programs, data, software, system documentation, designs, manuals, databases;
(f) trade
secrets; and
(g) any
other materials or information related to the personnel, business operations, financing or activities of the Company which are
not generally known to others engaged in similar businesses or activities.
(collectively,
“Confidential Information”)
6.2 Executive
acknowledges and agrees that the Confidential Information could be used to the detriment of the Company. Accordingly, Executive
agrees and undertakes not to disclose Confidential Information to any third party either during the term of his engagement except
as may be necessary in the proper discharge of his employment, or after the term of his engagement, however caused, except with
the written permission of the Company.
6.3 Executive
understands and agrees that all items of any and every nature or kind created by Executive pursuant to Executive’s employment
under this Agreement or furnished by the Company to Executive, and all equipment, automobiles, credit cards, books, records, reports,
files, manuals and any other documents and confidential information shall remain and be considered the exclusive property of the
Company at all times, and shall be returned and shall be returned to the Company in good condition promptly on the termination
of this Agreement, for any reason.
7.0 NON-COMPETITION
7.1 Executive
also acknowledges that, by reason of employment, Executive will continue to receive the value and advantage of special training,
skills and expert knowledge and experience of and contacts with customers of the Company and other employees of the Company who
are engaged in the business of the Company.
7.2 Executive
further acknowledges that, in the course of employment, Executive will be assigned duties that will give him knowledge of confidential
and proprietary information which relates to the conduct and details of the Company’s business and which will result in irreparable
harm or injury to the Company which could not be adequately compensated by monetary damages if Executive should enter into the
employment of a business which is the same as, or competitive with, the business of the Company, or should Executive enter into
the business of the Company.
7.3 Executive
shall not commence, engage in, or participate in any business competitive with the business of the Company either directly or indirectly,
either as individual or as a partner or joint venturer or as an employee, principal, consultant, agent, shareholder, officer, director
or representative for any person, association, organization, or in any manner for a period of six months following the termination
of his employment with the Company for any reason.
7.4 Executive
acknowledges and agrees that without prejudice to any and all other rights of the Company, in the event of his violation of any
of the covenants contained in Sections 6 and 7, an injunction or other like remedy, including an interim injunction, will be a
reasonable and effective remedy to protect the Company’s rights and property.
8.0 SUCCESSORS
AND PERSONAL REPRESENTATIVES
8.1 This
Agreement shall enure to the benefit of and be enforceable by the personal or legal representatives, executors, administrators,
successors, assigns and heirs of the parties hereto.
9.0 NOTICE
9.1 Any
notice or other communication required or contemplated under this Agreement to be given by one party to the other shall be delivered
or mailed by prepared registered post to the party to receive same at the undernoted address, namely:
(a) To
the Company:
Xcelmobility
Inc. - 2225 East Bayshore Road, Suite 200, Palo Alto, CA 94303.
(b) Ron
Strauss:
6th Floor, St.
John's Building, 33 Garden Road, central, Hong Kong.
Any notice delivered shall be delivered
personally to Executive and shall be deemed to have been given and received on the business day next following the date of delivery.
Any notice mailed as aforesaid shall be deemed to have been given and received on the fifth business day following the date it
is posted, provided that if between the time of mailing and actual receipt of the notice there shall be a mail strike, slowdown
or other labour dispute which might affect delivery of the notice by mail, then the notice shall be effective only if actually
delivered.
10.0 MODIFICATION/AMENDMENT
10.1 No
provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by Executive and such officer as may be specifically designated by the Board. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be
performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior
or subsequent time.
11.0 ENTIRE
AGREEMENT
11.1 No
agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made
by either party which are not expressly set forth in this Agreement.
12.0 GOVERNING
LAW
12.1 The
validity, interpretation, construction and performance of this Agreement shall be governed in accordance with the laws of the State
of Nevada.
13.0 VALIDITY
13.1 The
invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
14.0 INDEMNIFICATION
14.1 Executive
agrees to indemnify the Company against any claims made for the collection, withholding and payment of any personal taxes associated
with the work performed by Executive for the Company by any jurisdiction that makes a claim against Executive or the Company. Furthermore,
Executive agrees that if necessary, he will sign additional documents that indemnify the Company against claims for taxes owed
in relation to payments made to Executive based on this Management Services Agreement.
15.0 SIGNATURES
IN COUNTERPARTS
15.1 This
Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. The parties hereto confirm that any facsimile, scanned or emailed copy of another party's
executed counterpart of this Agreement (or its signature page thereof) will be deemed to be an executed original thereof.
IN WITNESS WHEREOF the
parties hereto have executed these presents the day and year first above written.
The Corporate Seal of the Company, |
|
|
XCELMOBILITY INC. |
|
|
was hereunto affixed in the presence of: |
|
C/S |
|
|
|
|
|
|
Authorized Signatory |
|
|
SIGNED, SEALED AND DELIVERED by |
|
|
|
RON STRAUSS in the presence of: |
|
|
|
|
|
|
|
|
|
|
|
Signature |
|
|
|
|
|
|
|
|
|
|
|
Address |
|
|
RON STRAUSS |
|
|
|
|
Exhibit 10.3
THIS
AMENDED AND RESTATED MANAGEMENT SERVICE AGREEMENT entered into as of the 28th day of August 2014 (the “Agreement”)
BETWEEN:
| | Xcelmobility
Inc., a corporation incorporated under the laws of Nevada, USA, and having an
executive office at 2225 East Bayshore Road, Suite 200, Palo Alto, CA 94303. |
AND:
| | Renyan
Ge, Businessman of 3F, West Block, M-8, Maqueling Industrial Park, Nanshan District,
Shenzhen, China 518057 |
.
WHEREAS:
|
A. |
The Company and Executive had previously
entered into a Management Services Agreement, dated as of August 1, 2011 (the “Original Agreement”); |
|
|
|
|
B. |
The Company and Executive wish to amend and restate
certain provisions of the Original Agreement to reflect the parties’ mutual agreement. |
NOW
THEREFORE in consideration of the premises and mutual covenants herein contained, the parties hereto agree as follows:
1.1 Executive
represents and warrants to the Company that Executive has the required skills and experience to perform the duties and exercise
the responsibilities required of Executive in the position of Chief Executive Officer CEO.
1.2 Executive
and the Company agree to comply with and to be bound by the terms and conditions of this Agreement.
1.3 During
the term of employment, Executive shall well and faithfully serve and devote himself exclusively to the Company.
1.4 In
carrying out these duties and responsibilities, Executive undertakes to comply with all lawful instructions and directions which
he may receive from the Company. The duties and responsibilities to be carried out by Executive will be commensurate with the
duties of a CEO. Executive shall report to the Board of Directors of the Company (the “Board”) as a whole as requested.
1.5 Executive
agrees and understands that the effective performance of Executive’s duties requires the highest level of integrity and
the Company’s complete confidence in Executive’s relationship with other employees of the Company, and with all persons
dealt with by Executive in the course of his employment. Executive is required to ensure that he conducts himself in a professional,
business-like manner at all times.
1.6 Executive
acknowledges and agrees to familiarize himself with and to comply with all of the Company’s policies, practices and procedures
as adopted from time to time.
1.7 Executive
shall be subject to an annual performance review.
2.1 Job
descriptions specific to the position will be developed by the Compensation Committee of the Board, but in general terms Executive
shall be responsible for the following:
Job descriptions
specific to the position will be developed by the Compensation Committee of the Board, but in general terms Ge shall be responsible
for the following:
(a) |
Oversees the operations of organization
and manages its compliance with legal and regulatory requirements |
(b) |
Creates and maintains procedures for implementing
plans approved by the board of directors |
(c) |
Promotes a culture that reflects the organization’s
values, encourages good performance, and rewards productivity |
(d) |
Hires, manages, and fires the human resources
of the organization according to authorized personnel policies and procedures that fully conform to current laws and regulations |
(e) |
Ensures that staff and board have sufficient and
up-to-date information |
(f) |
Evaluates the organization’s and the staff’s
performance on a regular basis |
(g) |
Oversees staff in developing annual budgets that
support operating plans and submits budgets for board approval |
(h) |
Prudently manages the organization's resources
within budget guidelines according to current laws and regulations |
(i) |
Ensures that staff practices all appropriate accounting
procedures in compliance with Generally Accepted Accounting Principles (GAAP) |
(j) |
Provides prompt, thorough, and accurate information
to keep the board appropriately informed of the organization’s financial position |
(k) |
Develops fund raising strategies with the board
and supports the board in fund raising activities |
(l) |
Oversees staff in the development and implementation
of fund raising plans that support strategies adopted by the Development Committee |
(m) |
Serves as a primary person in donor relationships
and the person to make one-on-one fund raising solicitations |
(n) |
Oversees staff in the timely submission grant
applications and progress reports for funders |
(o) |
Oversees design, delivery, and quality of programs
and services |
(p) |
Stays abreast of current trends related to the
organization’s products and services and anticipates future trends likely to have an impact on its work |
(q) |
Collects and analyzes evaluation information that
measures the success of the organization’s program efforts; refines or changes programs in response to that information |
(r) |
Supports operations and administration of the
board by advising and informing board members and interfacing between board and staff |
(s) |
Advises the board in the development of policies
and planning recommendations |
3.1 The
term of appointment and engagement of Executive shall commence on July 28, 2011 (the “Commencement Date”) and continue
for an indefinite term.
| 4.0 | REMUNERATION AND BENEFITS |
4.1 In
consideration of Executive’s undertaking and performance of the obligations contained in this Agreement, the Company will
compensate Executive for his services as follows:
(a) |
Base
Salary: Executive will receive a base salary of $180,000 per year,
which shall be paid to Executive in bi-monthly installments. |
|
|
(b) |
Options:
For each year that Executive is employed by the Company, he shall receive an option to purchase 500,000 shares of common
stock of the Company, in accordance with the XcelMobility, Inc. 2013 Equity Incentive Plan, as amended from time to time (the
“Plan”), and related option documents. |
|
|
(c) |
Equity
In Lieu of Unpaid Base Salary: Executive shall be entitled to purchase shares of common stock of the Company at a price
equal to the lower of (a) the lowest publicly traded share price for the Company’s common stock during the thirty (30)
days prior to such issuance, or (b) the per share price paid by a third party investor during the past twelve (12) months
for shares of the Company’s common stock, in lieu of base salary that has accrued and remains unpaid, provided, however,
that the number of shares to be received by Executive shall equal an amount that is double such accrued and unpaid base salary.
Additionally, Executive shall be entitled to receive an option to purchase 10 shares of common stock of the Company for each
share that he receives in lieu of base salary pursuant to this Section 4.1(c) and
at the same valuation as the shares to be received in lieu of accrued and unpaid base salary. As
of the date of this Agreement, the accrued and unpaid base salary for Executive is $292,145. |
|
|
(d) |
Benefits: Executive
shall be entitled to receive a monthly cash payment of $3,800 in lieu of any benefits provided by the Company, including retirement
fund payments. |
|
|
(e) |
Vacation: At
a time or times which are mutually convenient for the Company and Executive, Executive shall be entitled to five (5) weeks’
vacation during each calendar year of his engagement, of which not more than two weeks shall be taken at one time. Executive
will be permitted to carry forward any unused vacation to the next year or receive compensation in kind. |
(f) |
Bonus: |
|
(i) |
Executive is eligible for an
annual bonus in an amount to be determined
by the board of directors |
|
|
|
(ii) |
No bonus shall be payable to
Executive from the date that he ceases to be actively engaged by the Company. Specifically, Executive is not entitled
to a bonus for the year in which Executive terminates his engagement. In the event Executive’s engagement
is terminated in the absence of just cause, Executive will receive bonus payments for the entire notice period in the amount
determined by the average of the last two bonus payments made or $100,000 where no bonus payments have been made. |
|
|
(g) |
Expenses: The
Company will reimburse or pay for all reasonable business expenses incurred by Executive in the execution of his duties. This
includes the expenses for airfare, accommodation and other business related expenses. |
5.0 |
TERMINATION |
|
|
5.1 |
This Agreement may be terminated by
the Company as follows: |
|
|
(a) |
In the absence of
just cause by the Company, Executive will receive payments in lieu of notice, based upon the length of services Executive
has provided the Company: |
|
|
|
Service
Period |
Notice |
|
(i) less than thirty
six (36) months of service |
Eighteen
(18) months’ notice |
|
|
|
|
(ii) more than thirty-six
(36) months of service |
Thirty
(30) months’ notice |
|
|
|
(b) |
Where the Company
elects to give Executive notice of termination of this Agreement, in the absence of just cause, Executive may choose to receive
payments due in either a lump sum, on a continuance basis or a combination of both. |
|
|
(c) |
During the period
of notice, Executive will not be required to perform the responsibilities of his position and will return to the Company all
property in his possession that belongs to the Company. |
|
|
(d) |
Where there is just
cause for termination of the engagement or if Executive is in material breach of his obligations under this Agreement, Executive
will not be entitled to notice, bonus payments or payment in lieu of notice of the termination of his management Services
Agreement. The engagement of Executive shall cease upon receipt of notice that his services are being terminated
for just cause. For the purposes of this Agreement, “just cause” will be defined by the common law. |
5.2 If
a Change in Control is consummated during the term of this Agreement and within eighteen months immediately
following such Change in Control, Executive is terminated without cause, then Executive shall be entitled to:
(a) |
a
lump sum payment equal to eighteen (18) months of base salary, which such sum shall be paid upon Executive’ termination
date; |
|
|
(b) |
a bonus
of $75,000; and |
|
|
(c) |
the
vesting schedule of each outstanding option held by Executive to purchase shares of common stock of the Company held by Executive
shall be fully accelerated so that the option shall become exercisable for an additional number of shares equal to 100% of
the shares of common stock subject to the option which are unvested immediately prior to such Change in Control; and (b) the
vesting schedule of each outstanding restricted stock award held by Executive shall be accelerated so that 100% of the number
of unvested shares subject to such restricted stock award shall vest in full. |
"Change
In Control" shall mean the consummation of any of the following transactions effecting a change in ownership or control of
the Company:
(a) |
a
merger, consolidation or reorganization, unless securities representing more than fifty percent (50%) of the total
combined voting power of the voting securities of the successor corporation are immediately thereafter beneficially owned,
directly or indirectly and in substantially the same proportion, by the persons who beneficially owned the Company's outstanding
voting securities immediately prior to such transaction; or |
|
|
(b) |
any
transfer, sale or other disposition of all or substantially all of the Company's assets; or |
|
|
(c) |
the
acquisition, directly or indirectly by any person or related group of persons (other than the Company or a person that directly
or indirectly controls, is controlled by, or is under common control with, the Company), of beneficial ownership (within the
meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as amended) of securities possessing more than fifty percent
(50%) of the total combined voting power of the Company's outstanding securities pursuant to a tender or exchange offer made
directly to the Company's beneficial holders. |
5.3 This
Agreement may be terminated by Executive with two (2) months’ written notice to the Company. The Company may waive this
notice requirement by written notice.
| 6.0 | CONFIDENTIAL INFORMATION
AND PROPERTY |
6.1 Executive
acknowledges that as the Chairman of the Board and in any other position the Executive may hold, a relationship of confidence,
trust and fiduciary obligation is created between Executive and the Company, and Executive will acquire information about certain
matters and things which are confidential to the Company, and which information is the exclusive property of the Company including:
(a) |
financial statements,
financial books and records, reserve reports and estimates and other related information; |
|
|
(b) |
information concerning products,
pricing, sales and marketing policies, techniques and concepts, including costing information, in respect of products and
services provided or to be provided by Executive; |
|
|
(c) |
lists of present and prospective
clients and related information, including names and addresses, borrowing habits and preferences of present and prospective
clients of the Company; |
|
|
(d) |
purchasing information, including
the names and addresses of present and prospective suppliers of the Company and prices charged by such suppliers; |
|
|
(e) |
computer systems, computer programs,
data, software, system documentation, designs, manuals, databases; |
|
|
(f) |
trade secrets; and |
|
|
(g) |
any other materials or information
related to the personnel, business operations, financing or activities of the Company which are not generally known to others
engaged in similar businesses or activities. |
|
|
|
(collectively, “Confidential
Information”) |
6.2 Executive
acknowledges and agrees that the Confidential Information could be used to the detriment of the Company. Accordingly, Executive
agrees and undertakes not to disclose Confidential Information to any third party either during the term of his engagement except
as may be necessary in the proper discharge of his employment, or after the term of his engagement, however caused, except with
the written permission of the Company.
6.3 Executive
understands and agrees that all items of any and every nature or kind created by Executive pursuant to Executive’s employment
under this Agreement or furnished by the Company to Executive, and all equipment, automobiles, credit cards, books, records, reports,
files, manuals and any other documents and confidential information shall remain and be considered the exclusive property of the
Company at all times, and shall be returned and shall be returned to the Company in good condition promptly on the termination
of this Agreement, for any reason.
7.1 Executive
also acknowledges that, by reason of employment, Executive will continue to receive the value and advantage of special training,
skills and expert knowledge and experience of and contacts with customers of the Company and other employees of the Company who
are engaged in the business of the Company.
7.2 Executive
further acknowledges that, in the course of employment, Executive will be assigned duties that will give him knowledge of confidential
and proprietary information which relates to the conduct and details of the Company’s business and which will result in
irreparable harm or injury to the Company which could not be adequately compensated by monetary damages if Executive should enter
into the employment of a business which is the same as, or competitive with, the business of the Company, or should Executive
enter into the business of the Company.
7.3 Executive
shall not commence, engage in, or participate in any business competitive with the business of the Company either directly or
indirectly, either as individual or as a partner or joint venturer or as an employee, principal, consultant, agent, shareholder,
officer, director or representative for any person, association, organization, or in any manner for a period of six months following
the termination of his employment with the Company for any reason.
7.4 Executive
acknowledges and agrees that without prejudice to any and all other rights of the Company, in the event of his violation of any
of the covenants contained in Sections 6 and 7, an injunction or other like remedy, including an interim injunction, will be a
reasonable and effective remedy to protect the Company’s rights and property.
| 8.0 | SUCCESSORS AND PERSONAL
REPRESENTATIVES |
8.1 This
Agreement shall enure to the benefit of and be enforceable by the personal or legal representatives, executors, administrators,
successors, assigns and heirs of the parties hereto.
9.1 Any
notice or other communication required or contemplated under this Agreement to be given by one party to the other shall be delivered
or mailed by prepared registered post to the party to receive same at the undernoted address, namely:
(a) |
To the Company: |
|
Xcelmobility Inc. - 2225
East Bayshore Road, Suite 200, Palo Alto, CA 94303. |
|
|
(b) |
Renyan Ge: |
|
3F, West Block, M-8, Maqueling
Industrial Park, Nanshan District, Shenzhen, China 518057 |
Any notice
delivered shall be delivered personally to Executive and shall be deemed to have been given and received on the business day next
following the date of delivery. Any notice mailed as aforesaid shall be deemed to have been given and received on the fifth business
day following the date it is posted, provided that if between the time of mailing and actual receipt of the notice there shall
be a mail strike, slowdown or other labour dispute which might affect delivery of the notice by mail, then the notice shall be
effective only if actually delivered.
| 10.0 | MODIFICATION/AMENDMENT |
10.1 No
provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by Executive and such officer as may be specifically designated by the Board. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be
performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time.
11.1 No
agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made
by either party which are not expressly set forth in this Agreement.
12.1 The
validity, interpretation, construction and performance of this Agreement shall be governed in accordance with the laws of the
State of Nevada.
13.1 The
invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
14.1 Executive
agrees to indemnify the Company against any claims made for the collection, withholding and payment of any personal taxes associated
with the work performed by Executive for the Company by any jurisdiction that makes a claim against Executive or the Company.
Furthermore, Executive agrees that if necessary, he will sign additional documents that indemnify the Company against claims for
taxes owed in relation to payments made to Executive based on this Management Services Agreement.
| 15.0 | SIGNATURES IN COUNTERPARTS |
15.1 This
Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. The parties hereto confirm that any facsimile, scanned or emailed copy of another party's
executed counterpart of this Agreement (or its signature page thereof) will be deemed to be an executed original thereof.
IN
WITNESS WHEREOF the parties hereto have executed these presents the day and year first above written.
The Corporate Seal of the Company, |
|
XCELMOBILITY INC. |
|
was hereunto affixed in the presence of: |
C/S |
|
|
|
|
Authorized Signatory |
|
SIGNED, SEALED AND DELIVERED by |
|
|
|
RENYAN GE in the presence of: |
|
|
|
|
|
|
|
|
|
|
|
Signature |
|
|
|
|
|
|
|
|
|
|
|
Address |
|
|
RENYAN GE |
|
|
|
|
Exhibit 10.4
THIS AMENDED AND RESTATED
MANAGEMENT SERVICE AGREEMENT entered into as of the 28th day of August 2014 (the “Agreement”)
BETWEEN:
| | Xcelmobility
Inc., a corporation incorporated under the
laws of Nevada, USA, and having an executive office at 2225
East Bayshore Road, Suite 200, Palo Alto, CA 94303. |
AND:
| | Xili Wang, Businesswoman of 3F, West Block, M-8, Maqueling Industrial Park, Nanshan
District, Shenzhen, China 518057 |
WHEREAS:
| A. | The Company and Executive
had previously entered into a Management Services Agreement, dated as of August 1, 2011 (the “Original Agreement”); |
| B. | The Company and Executive
wish to amend and restate certain provisions of the Original Agreement to reflect the parties’ mutual agreement. |
NOW THEREFORE in consideration
of the premises and mutual covenants herein contained, the parties hereto agree as follows:
1.1 Executive
represents and warrants to the Company that Executive has the required skills and experience to perform the duties and exercise
the responsibilities required of Executive in the position of Chief Executive Officer CEO.
1.2 Executive
and the Company agree to comply with and to be bound by the terms and conditions of this Agreement.
1.3 During
the term of employment, Executive shall well and faithfully serve and devote himself exclusively to the Company.
1.4 In
carrying out these duties and responsibilities, Executive undertakes to comply with all lawful instructions and directions which
he may receive from the Company. The duties and responsibilities to be carried out by Executive will be commensurate with the duties
of a CEO. Executive shall report to the Board of Directors of the Company (the “Board”) as a whole as requested.
1.5 Executive
agrees and understands that the effective performance of Executive’s duties requires the highest level of integrity and the
Company’s complete confidence in Executive’s relationship with other employees of the Company, and with all persons
dealt with by Executive in the course of his employment. Executive is required to ensure that he conducts himself in a professional,
business-like manner at all times.
1.6 Executive
acknowledges and agrees to familiarize himself with and to comply with all of the Company’s policies, practices and procedures
as adopted from time to time.
1.7 Executive
shall be subject to an annual performance review.
2.1 Job
descriptions specific to the position will be developed by the Compensation Committee of the Board, but in general terms Wang shall
be responsible for the following:
| (a) | Assist in performing all tasks necessary to achieve the
organization's mission and help execute staff succession and growth plans. |
| (b) | Train the Finance Unit and other staff on raising awareness
and knowledge of financial management matters. |
| (c) | Work with the President/CEO on the strategic vision including
fostering and cultivating stakeholder relationships on city, state, and national levels, as well as assisting in the development
and negotiation of contracts. |
| (d) | Participate in developing new business, specifically:
assist the CEO in identifying new funding opportunities, the drafting of prospective programmatic budgets, and determining cost
effectiveness of prospective service delivery. |
| (e) | Ensure adequate controls are installed and that substantiating
documentation is approved and available such that all purchases may pass independent and governmental audits. |
| (f) | Provide the CEO with an operating budget. Work with the
CEO to ensure programmatic success through cost analysis support, and compliance with all contractual and programmatic requirements.
This includes: |
| i. | interpreting legislative and programmatic rules and regulations
to ensure compliance with all federal, state, local and contractual guidelines, |
| ii. | ensuring that all government regulations and requirements
are disseminated to appropriate personnel, and |
| iii. | monitoring compliance. |
| (g) | Oversee the management and coordination of all fiscal
reporting activities for the organization including: organizational revenue/expense and balance sheet reports, reports to funding
agencies, development and monitoring of organizational and contract/grant budgets. |
| (h) | Oversee all purchasing and payroll activity for staff
and participants. |
| (i) | Develop and maintain systems of internal controls to
safeguard financial assets of the organization and oversee federal awards and programs. Oversee the coordination and activities
of independent auditors ensuring all A-133 audit issues are resolved, and all 403(b) compliance issues are met, and the preparation
of the annual financial statements is in accordance with U.S. GAAP and federal, state and other required supplementary schedules
and information. |
| (j) | Attend Board and Subcommittee meetings; including being
the lead staff on the Audit/Finance Committee. |
| (k) | Monitor banking activities of the organization. |
| (l) | Ensure adequate cash flow to meet the organization's
needs. |
| (m) | Investigate cost-effective benefit plans and other fringe
benefits which the organization may offer employees and potential employees with the goal of attracting and retaining qualified
individuals. |
| (n) | Oversee the production of monthly reports including reconciliations
with funders and pension plan requirements, as well as financial statements and cash flow projections for use by Executive management,
as well as the Audit/Finance Committee and Board of Directors. |
| (o) | Assist in the design, implementation, and timely calculations
of wage incentives, commissions, and salaries for the staff. |
| (p) | Oversee Accounts Payable and Accounts Receivable and
ensure a disaster recovery plan is in place. |
| (q) | Oversee business insurance plans and health care coverage
analysis. |
| (r) | Oversee the maintenance of the inventory of all fixed
assets, including assets purchased with government funds (computers, etc.) assuring all are in accordance with federal regulations. |
3.1 The
term of appointment and engagement of Executive shall commence on July 28, 2011 (the “Commencement Date”) and continue
for an indefinite term.
| 4.0 | REMUNERATION AND BENEFITS |
4.1 In
consideration of Executive’s undertaking and performance of the obligations contained in this Agreement, the Company will
compensate Executive for his services as follows:
| (a) | Base Salary: Executive will receive a base salary
of $150,000 per year, which
shall be paid to Executive in bi-monthly installments. |
| (b) | Options: For each year that Executive is employed
by the Company, he shall receive an option to purchase 250,000 shares of common stock of the Company, in accordance with the XcelMobility,
Inc. 2013 Equity Incentive Plan, as amended from time to time (the “Plan”), and related option documents. |
| (c) | Equity In Lieu of Unpaid Base Salary: Executive
shall be entitled to purchase shares of common stock of the Company at a price equal to the lower of (a) the lowest publicly traded
share price for the Company’s common stock during the thirty (30) days prior to such issuance, or (b) the per share price
paid by a third party investor during the past twelve (12) months for shares of the Company’s common stock, in lieu of base
salary that has accrued and remains unpaid, provided, however, that the number of shares to be received by Executive shall
equal an amount that is double such accrued and unpaid base salary. Additionally, Executive shall be entitled to receive an option
to purchase 10 shares of common stock of the Company for each share that he receives in lieu of base salary pursuant to this Section
4.1(c) and at the same valuation
as the shares to be received in lieu of accrued and unpaid base salary.
As of the date of this Agreement, the accrued and unpaid base salary for Executive
is $186,573. |
| (d) | Benefits: Executive shall be entitled to receive
a monthly cash payment of $1,100 in lieu of any benefits provided by the Company, including retirement fund payments. |
| (e) | Vacation: At a time or times which are mutually
convenient for the Company and Executive, Executive shall be entitled to five (5) weeks’ vacation during each calendar year
of his engagement, of which not more than two weeks shall be taken at one time. Executive will be permitted to carry forward any
unused vacation to the next year or receive compensation in kind. |
| (i) | Executive is eligible for an annual
bonus in an amount to be determined by the board of directors |
| (ii) | No bonus shall be payable to Executive from the date
that he ceases to be actively engaged by the Company. Specifically, Executive is not entitled to a bonus for the year in which
Executive terminates his engagement. In the event Executive’s engagement is terminated in the absence of just cause, Executive
will receive bonus payments for the entire notice period in the amount determined by the average of the last two bonus payments
made or $100,000 where no bonus payments have been made. |
| (g) | Expenses: The Company will reimburse or pay for
all reasonable business expenses incurred by Executive in the execution of his duties. This includes the expenses for airfare,
accommodation and other business related expenses. |
| 5.1 | This Agreement may be terminated by the Company as follows: |
| (a) | In the absence of just cause by the Company, Executive
will receive payments in lieu of notice, based upon the length of services Executive has provided the Company: |
Service Period |
|
Notice |
(i) less than thirty six (36) months of service |
|
Eighteen (18) months’ notice |
|
|
|
(ii) more than thirty-six (36) months of service |
|
Thirty (30) months’ notice |
| (b) | Where the Company elects to give Executive notice of
termination of this Agreement, in the absence of just cause, Executive may choose to receive payments due in either a lump sum,
on a continuance basis or a combination of both. |
| (c) | During the period of notice, Executive will not be required
to perform the responsibilities of his position and will return to the Company all property in his possession that belongs to
the Company. |
| (d) | Where there is just cause for termination of the engagement
or if Executive is in material breach of his obligations under this Agreement, Executive will not be entitled to notice, bonus
payments or payment in lieu of notice of the termination of his management Services Agreement. The engagement of Executive shall
cease upon receipt of notice that his services are being terminated for just cause. For the purposes of this Agreement, “just
cause” will be defined by the common law. |
5.2 If
a Change in Control is consummated during the term of this Agreement and within eighteen months immediately
following such Change in Control, Executive is terminated without cause, then Executive shall be entitled to:
| (a) | a lump sum payment
equal to eighteen (18) months of base salary, which such sum shall be paid upon Executive’ termination date; |
| (b) | a bonus of $58,000;
and |
| (c) | the vesting schedule
of each outstanding option held by Executive to purchase shares of common stock of the Company held by Executive shall be fully
accelerated so that the option shall become exercisable for an additional number of shares equal to 100% of the shares of common
stock subject to the option which are unvested immediately prior to such Change in Control; and (b) the vesting schedule of each
outstanding restricted stock award held by Executive shall be accelerated so that 100% of the number of unvested shares subject
to such restricted stock award shall vest in full. |
"Change
In Control" shall mean the consummation of any of the following transactions effecting a change in ownership or control of
the Company:
| (a) | a merger, consolidation
or reorganization, unless securities representing more than fifty percent (50%) of the total combined voting power of the
voting securities of the successor corporation are immediately thereafter beneficially owned, directly or indirectly and in substantially
the same proportion, by the persons who beneficially owned the Company's outstanding voting securities immediately prior to such
transaction; or |
| (b) | any transfer, sale
or other disposition of all or substantially all of the Company's assets; or |
| (c) | the acquisition,
directly or indirectly by any person or related group of persons (other than the Company or a person that directly or indirectly
controls, is controlled by, or is under common control with, the Company), of beneficial ownership (within the meaning of Rule
13d-3 of the Securities Exchange Act of 1934, as amended) of securities possessing more than fifty percent (50%) of the total
combined voting power of the Company's outstanding securities pursuant to a tender or exchange offer made directly to the Company's
beneficial holders. |
5.3 This
Agreement may be terminated by Executive with two (2) months’ written notice to the Company. The Company may waive this notice
requirement by written notice.
| 6.0 | CONFIDENTIAL INFORMATION AND PROPERTY |
6.1 Executive
acknowledges that as the Chairman of the Board and in any other position the Executive may hold, a relationship of confidence,
trust and fiduciary obligation is created between Executive and the Company, and Executive will acquire information about certain
matters and things which are confidential to the Company, and which information is the exclusive property of the Company including:
| (a) | financial statements, financial books and records, reserve
reports and estimates and other related information; |
| (b) | information concerning products, pricing, sales and marketing
policies, techniques and concepts, including costing information, in respect of products and services provided or to be provided
by Executive; |
| (c) | lists of present and prospective clients and related
information, including names and addresses, borrowing habits and preferences of present and prospective clients of the Company; |
| (d) | purchasing information, including the names and addresses
of present and prospective suppliers of the Company and prices charged by such suppliers; |
| (e) | computer systems, computer programs, data, software,
system documentation, designs, manuals, databases; |
| (g) | any other materials or information related to the personnel,
business operations, financing or activities of the Company which are not generally known to others engaged in similar businesses
or activities. |
| | (collectively, “Confidential Information”) |
6.2 Executive
acknowledges and agrees that the Confidential Information could be used to the detriment of the Company. Accordingly, Executive
agrees and undertakes not to disclose Confidential Information to any third party either during the term of his engagement except
as may be necessary in the proper discharge of his employment, or after the term of his engagement, however caused, except with
the written permission of the Company.
6.3 Executive
understands and agrees that all items of any and every nature or kind created by Executive pursuant to Executive’s employment
under this Agreement or furnished by the Company to Executive, and all equipment, automobiles, credit cards, books, records, reports,
files, manuals and any other documents and confidential information shall remain and be considered the exclusive property of the
Company at all times, and shall be returned and shall be returned to the Company in good condition promptly on the termination
of this Agreement, for any reason.
7.1 Executive
also acknowledges that, by reason of employment, Executive will continue to receive the value and advantage of special training,
skills and expert knowledge and experience of and contacts with customers of the Company and other employees of the Company who
are engaged in the business of the Company.
7.2 Executive
further acknowledges that, in the course of employment, Executive will be assigned duties that will give him knowledge of confidential
and proprietary information which relates to the conduct and details of the Company’s business and which will result in irreparable
harm or injury to the Company which could not be adequately compensated by monetary damages if Executive should enter into the
employment of a business which is the same as, or competitive with, the business of the Company, or should Executive enter into
the business of the Company.
7.3 Executive
shall not commence, engage in, or participate in any business competitive with the business of the Company either directly or indirectly,
either as individual or as a partner or joint venturer or as an employee, principal, consultant, agent, shareholder, officer, director
or representative for any person, association, organization, or in any manner for a period of six months following the termination
of his employment with the Company for any reason.
7.4 Executive
acknowledges and agrees that without prejudice to any and all other rights of the Company, in the event of his violation of any
of the covenants contained in Sections 6 and 7, an injunction or other like remedy, including an interim injunction, will be a
reasonable and effective remedy to protect the Company’s rights and property.
| 8.0 | SUCCESSORS AND PERSONAL REPRESENTATIVES |
8.1 This
Agreement shall enure to the benefit of and be enforceable by the personal or legal representatives, executors, administrators,
successors, assigns and heirs of the parties hereto.
9.1 Any
notice or other communication required or contemplated under this Agreement to be given by one party to the other shall be delivered
or mailed by prepared registered post to the party to receive same at the undernoted address, namely:
Xcelmobility
Inc. - 2225 East Bayshore Road,
Suite 200, Palo Alto, CA 94303.
3F, West Block,
M-8, Maqueling Industrial Park, Nanshan District, Shenzhen, China 518057
Any notice delivered shall be delivered
personally to Executive and shall be deemed to have been given and received on the business day next following the date of delivery.
Any notice mailed as aforesaid shall be deemed to have been given and received on the fifth business day following the date it
is posted, provided that if between the time of mailing and actual receipt of the notice there shall be a mail strike, slowdown
or other labour dispute which might affect delivery of the notice by mail, then the notice shall be effective only if actually
delivered.
| 10.0 | MODIFICATION/AMENDMENT |
10.1 No
provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by Executive and such officer as may be specifically designated by the Board. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any condition or provision of this Agreement to be
performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior
or subsequent time.
11.1 No
agreements or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made
by either party which are not expressly set forth in this Agreement.
12.1 The
validity, interpretation, construction and performance of this Agreement shall be governed in accordance with the laws of the State
of Nevada.
13.1 The
invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
14.1 Executive
agrees to indemnify the Company against any claims made for the collection, withholding and payment of any personal taxes associated
with the work performed by Executive for the Company by any jurisdiction that makes a claim against Executive or the Company. Furthermore,
Executive agrees that if necessary, he will sign additional documents that indemnify the Company against claims for taxes owed
in relation to payments made to Executive based on this Management Services Agreement.
| 15.0 | SIGNATURES IN COUNTERPARTS |
15.1 This
Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. The parties hereto confirm that any facsimile, scanned or emailed copy of another party's
executed counterpart of this Agreement (or its signature page thereof) will be deemed to be an executed original thereof.
IN WITNESS WHEREOF the
parties hereto have executed these presents the day and year first above written.
The Corporate Seal of the Company,
XCELMOBILITY INC.
was hereunto affixed in the presence of: |
C/S |
SIGNED, SEALED AND DELIVERED by |
|
|
|
XILI WANG in the presence of: |
|
|
|
|
|
|
|
|
|
|
|
Signature |
|
|
|
|
|
|
|
|
|
|
|
Address |
|
|
XILI WANG |
|
|
|
|
XcelMobility (CE) (USOTC:XCLL)
Historical Stock Chart
From Jan 2025 to Feb 2025
XcelMobility (CE) (USOTC:XCLL)
Historical Stock Chart
From Feb 2024 to Feb 2025