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SHENZHEN HENGTAIFENG TECHNOLOGY CO., LTD.
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Hi-tech Industrial Park
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ P.R. China
August 12, 2005
Warner Technology and Investment Corp.
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Attn: ▇▇▇▇▇▇▇ ▇▇▇▇, President
Dear ▇▇. ▇▇▇▇:
Reference is made to (a) the agreement, dated October 18, 2003 between
Shenzhen Hengtaifeng Technology Co., Ltd. ("HTF") and Warner Technology and
Investment Corp. ("Warner") (the "Initial Agreement"), (b) Amendment No. 1
thereto, dated January 16, 2005 ("Amendment No. 1") and (c) Amendment
No. 2 thereto dated August 10, 2005 ("Amendment No. 2").
Warner and HTF have agreed to restructure the terms of their relationship. In
order to effect such restructuring, Warner and HTF hereby agree as follows:
1. The Initial Agreement, Amendment No. 1 and Amendment No. 2 are each rescinded
ab initio.
2. Warner hereby agrees to provide consulting services to CIEC and HTF in order
for such corporations to consummate all of the actions referred to in Section 3
hereof. HTF agrees that in substitution for all of the consideration payable by
HTF to Warner pursuant to the Initial Agreement, on or prior to the consummation
of a share exchange whereby all of the stockholders of China International
Enterprises Corp. (the parent company of HTF) shall exchange all of their shares
of China International Enterprises Corp. ("CIEC") common stock for common stock
of Moving Bytes Inc., a Canadian corporation ("Moving Bytes") whose common stock
is quoted on the Over-the-Counter Bulletin Board, HTF shall pay to Warner the
sum of $350,000 as a fee and as an advance non-accountable expense reimbursement
for the expenses set forth in Section 3 hereof which Warner agrees to pay.
3. Until a Current Report on Form 8-K (including any amendments thereto to
include required financial statements) is filed with the Securities and Exchange
Commission to report the acquisition of CIEC by Moving Bytes, Warner agrees to
pay all fees and disbursements of all legal counsel and auditors to Moving Bytes
and CIEC in connection with all of the following transactions: the preparation
and filing of the Registration Statement on Form SB-2 for CIEC, including the
withdrawal of such registration statement; the preparation and filing of all
periodic reports of Moving Bytes under the Securities Exchange Act of 1934; the
allocation of the shares of common stock of CIEC pursuant to an allocation
agreement between CIEC and its existing stockholders; and the share exchange
between the stockholders of CIEC and Moving Bytes pursuant to which CIEC shall
become a wholly owned subsidiary of Moving Bytes. In addition, Warner shall pay
all fees and disbursement of legal counsel and auditors in connection with the
re-domicile of Moving Bytes into a jurisdiction in the United States and the
change of name of Moving Bytes to a name selected by HTF, a reverse stock split
of the shares of Moving Bytes and the election of designees of HTF as directors
and officers of Moving Bytes.
4. Immediately prior to the consummation of the share exchange between the
stockholders of CIEC and Moving Bytes, Warner agrees to assume, and to cause
▇▇▇▇▇ ▇▇▇▇, jointly and severally to assume, all of the assets and all of the
liabilities of Moving Bytes pursuant to an assignment and assumption agreement
substantially in the form of Exhibit A hereto.
5. This Agreement shall be governed in all respects by the laws of the State of
New York without giving effect to the conflicts of laws principles thereof. All
suits, actions or proceedings arising out of, or in connection with, this
Agreement or the transactions contemplated by this Agreement shall be brought in
any court of competent subject matter jurisdiction sitting in New York, New
York. Each of the parties hereto by execution and delivery of this Agreement,
expressly and irrevocably (i) consents and submits to the exclusive personal
jurisdiction of any such courts in any such action or proceeding; (ii) consents
to the service of any complaint, summons, notice or other process relating to
any such action or proceeding by delivery thereof to such party as set forth in
Section 8 hereof; and (iii) waives any claim or defense in any such action or
proceeding based on any alleged lack of personal jurisdiction, improper venue,
forum non conveniens or any similar basis.
6. The provisions of this Agreement shall inure to the benefit of, and be
binding upon, the permitted successors and assigns of the parties to this
Agreement.
7. This Agreement constitutes the full and entire understanding and agreement
between the parties with regard to the subject matter hereof and thereof and
supersedes all prior agreements and merge all prior discussions, negotiations,
proposals and offers (written or oral) between them, and no party shall be
liable or bound to any other party in any manner by any representations,
warranties, covenants or agreements except as specifically set forth herein or
therein. Except as expressly provided in this Agreement, neither this Agreement
nor any term hereof may be amended, waived, discharged or terminated other than
by a written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
8. All notices and other communications given or made pursuant hereto shall be
in writing and shall be deemed to have been given or made if in writing and
delivered personally or sent by registered or certified mail (postage prepaid,
return receipt requested) to the parties at the following addresses:
If to CIEC or HFT, to:
Mr. ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ Xing Technology Group Development Limited, and
Shenzhen Hengtaifeng Technology Co., Ltd.
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Hi-tech Industrial Park
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ P.R. China
If to Warner, to:
Warner Technology and Investment Corp.
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Attn: ▇▇▇▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or to such other persons or at such other addresses as shall be furnished by any
party by like notice to the others, and such notice or communication shall be
deemed to have been given or made as of the date so delivered or mailed. No
change in any of such addresses shall be effective insofar as notices under this
Section 8 are concerned unless such changed address is located in the United
States of America and notice of such change shall have been given to such other
party hereto as provided in this Section 8.
9. Except as expressly provided in this Agreement, no delay or omission to
exercise any right, power or remedy accruing to any other party hereto or its
successors or assigns, upon any breach or default by another party hereto under
this Agreement shall impair any such right, power or remedy of such other party
or its successors or assigns, as the case may be, nor shall it be construed to
be a waiver of any such breach or default, or an acquiescence therein, or of a
waiver of or acquiescence in any similar breach or default thereafter occurring;
nor shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring; provided, however,
that this Section 9 shall not be interpreted to extend the date or time for any
right, privilege or option beyond that expressly set forth elsewhere in this
Agreement. Any waiver, permit, consent or approval of any kind or character on
the part of any holder of any breach or default under this Agreement, or any
waiver on the part of any holder of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under the Agreement
or by law or otherwise afforded to any holder shall be cumulative and not
alternative.
10. This Agreement may be executed in any number of counterparts, each of which
shall be enforceable against the parties actually executing such counterparts,
and all of which together shall constitute one instrument. This Agreement may be
delivered by facsimile, and facsimile signatures shall be treated as original
signatures for all applicable purposes.
11. In the event that any provision of this Agreement becomes or is declared by
a court of competent jurisdiction to be illegal, unenforceable or void, this
Agreement shall continue in full force and effect without said provision;
provided that no such severability shall be effective if it materially changes
the economic benefit of this Agreement to any party.
12. The titles and subtitles used in this Agreement are used for convenience
only and are not considered in construing or interpreting the Agreement.
13. The parties have participated jointly in the negotiation and drafting of
this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
the Agreement. Any reference to any federal, state, local or foreign statute or
law shall be deemed also to refer to all rules and regulations promulgated
thereunder and any applicable common law, unless the context requires otherwise.
The word "including" shall mean including without limitation and is used in an
illustrative sense rather than a limiting sense. Terms used with initial capital
letters will have the meanings specified, applicable to singular and plural
forms, for all purposes of the Agreement. Reference to any gender will be deemed
to include all genders and the neutral form.
15. The parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents, and
(c) to do such other acts and things, all as they other party may reasonable
request for the purpose of carrying out the intent of the Agreement and the
documents referred to in the Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
SHENZHEN HENGTAIFENG TECHNOLOGY CO., LTD.
By: ________________________
Title: ________________________
WARNER TECHNOLOGY AND INVESTMENT CORP.
By:____________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
EXHIBIT A
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement dated ________, 2005 ("Assignment
Agreement") between Warner Technology and Investment Corp. ("Warner"), a New
Jersey corporation, its principal shareholder ▇▇▇▇▇▇▇ ▇▇▇▇ ("▇▇▇▇") (▇▇▇▇▇▇ and
▇▇▇▇ jointly hereinafter as "Transferees") and Moving Bytes Inc., a Canadian
corporation ("MBYTF").
For value received, the sufficiency of which is hereby acknowledged, it hereby
is agreed:
1. MBYTF hereby assigns, transfers and conveys to Warner all of its rights and
interests in and to all of the assets of MBYTF of ever kind and nature as of the
date hereof, other than the books and records of MBYTF (the "Assets").
2. MBYTF hereby sells, assigns, transfers, conveys and delivers to Warner, and
Warner hereby accepts, all of MBYTF's rights, title and interests whatsoever in
and to all of the Assets.
3. Transferees hereby jointly and severally assume and agree to timely pay or
discharge MBYTF's obligations with respect to all of the liabilities of MBYTF of
any kind or nature existing as of the date hereof or arising out of any events
occurring prior to the date hereof (the "Assumed Liabilities").
4. MBYTF represents that it has the full right, power and authority to assign,
transfer and convey the Assets to Warner.
5. Transferees hereby accept the foregoing assignment and assumes and agree to
perform all of the duties and obligations to be performed by MBYTF after the
date hereof under the terms of the Assumed Liabilities. Transferees agree to
indemnify and hold MBYTF and its directors, officers, shareholders, affiliates
and subsidiaries harmless from any liability or claims for performance or
non-performance by Transferees of such duties and obligations.
6. MBYTF hereby constitutes and appoints Warner and its successors and assigns,
the true and lawful attorney of MBYTF, with full power of substitution, in the
name and stead of MBYTF, but on behalf of and for the benefit of Warner, its
successors and assigns, to demand and receive any and all of the Assets which
are hereby assigned, transferred, conveyed and delivered to Warner , and from
time to time to institute and prosecute actions, suits and demands in the name
of MBYTF, or otherwise, for the benefit of Warner , its successors or assigns,
which Warner, its successors or assigns, may deem proper in order to collect or
reduce to possession any of such Assets or to enforce any claim or right of any
kind in respect thereof and to do all acts and things in relation to such Assets
which Warner, its successors or assigns, deem desirable, MBYTF hereby declares
that the foregoing powers are coupled with an interest and are not revocable and
will not be revoked by MBYTF.
7. MBYTF hereby agrees that it, from time to time, at the reasonable request of
Warner and without further consideration, will execute and deliver such further
instruments of conveyance, transfer and assignment and will take such other
action as Warner reasonably may request in order more effectively to convey and
transfer to Warner the Assets transferred hereunder.
10. This instrument will be binding upon, and inure to the benefit of the
parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, MBYTF has caused this Assignment and Assumption Agreement to
be signed on its behalf by its duly authorized officers and its corporate seal
to be hereunto affixed, and Transferees have signed this Assignment and
Assumption Agreement, all as of the day and year first above written.
WARNER TECHNOLOGY AND INVESTMENT CORP.
By:____________________________
▇▇▇▇▇▇▇ ▇▇▇▇
President
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MOVING BYTES INC.
By:____________________________