0001493152-16-011906.txt : 20160802 0001493152-16-011906.hdr.sgml : 20160802 20160802172125 ACCESSION NUMBER: 0001493152-16-011906 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20160731 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20160802 DATE AS OF CHANGE: 20160802 FILER: COMPANY DATA: COMPANY CONFORMED NAME: XcelMobility Inc. CENTRAL INDEX KEY: 0001465509 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 980561888 STATE OF INCORPORATION: NV FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-54333 FILM NUMBER: 161801564 BUSINESS ADDRESS: STREET 1: 303 TWIN DOLPHINS DRIVE, STREET 2: SUITE 600 CITY: REDWOOD CITY STATE: CA ZIP: 94065 BUSINESS PHONE: 650-320-1728 MAIL ADDRESS: STREET 1: 303 TWIN DOLPHINS DRIVE, STREET 2: SUITE 600 CITY: REDWOOD CITY STATE: CA ZIP: 94065 FORMER COMPANY: FORMER CONFORMED NAME: Advanced Messaging Solutions Inc. DATE OF NAME CHANGE: 20090603 8-K 1 form8-k.htm

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): July 31, 2016

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

Second Amended and Restated Management Service Agreements

Effective July 31, 2016, XcelMobility Inc., a Nevada corporation (the “Company”) entered into Second Amended and Restated Management Service Agreements (as amended, the “Management Agreements”) with 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 terms employment ending on August 31, 2016, and include annual compensation for each of the Executive Officers as set forth below:

Renyan Ge - $50,000

Xili Wang - $20,000

In addition, each of the Executive Officers has the right to be reimbursed for all reasonable business expenses incurred by the Executives in the execution of his or her duties.

The Management Agreements may be terminated for cause by the Company at any time. If such termination is without cause, each 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 without cause within eighteen (18) months of such change in control, such Executive Officer is entitled to a lump sum payment equal to 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. In addition, the Executive Officers are subject to standard confidentiality restrictions and a non-competition provision that 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 10.1 and 10.2 to this Current Report on Form 8-K, which are incorporated herein by reference.

Settlement Agreement and Mutual Release

Effective July 31, 2016, the Company entered a Settlement Agreement and Mutual Release (each a “Settlement Agreement”) with each of the Executive Officers to provide for (i) the settlement of certain amounts of accrued and unpaid base salaries occurring between January 1, 2015 and December 31, 2015, (ii) the waiver of certain claims to accrued and unpaid base salaries occurring on or before December 31, 2014, and (iii) the mutual release of the parties. The Settlement Agreements provide for the payment of the following amounts (the “Settlement Amounts”) on or before July 31, 2016.

Renyan Ge - $50,000

Xili Wang - $20,000

Subject to the Company’s payment of the Settlement Amount on or before July 31, 2016, each Settlement Agreement provides for (i) each of the Executive Officers to waive all claims to base salary accrued and unpaid under the Management Agreement up to and including December 31, 2014, and (ii) the mutual release, between the Company and each of the Executive Officers, of all claims arising out of or relating to payment of the Settlement Amount and accrued and unpaid base salary arising on or before December 31, 2015. Compensation accruing under the Management Agreements on or after January 1, 2016 will remain due and payable to the Executive Officers pursuant to the terms thereof.

The Settlement Agreement does not provide for the Executive Officers to waive, release or discharge any claims arising out of relating to (i) accrued and unpaid compensation under the Management Agreements that occurs after December 31, 2015, (ii) any right to file an administrative charge or complaint with the Equal Employment Opportunity Commission or other administrative agency (although each Executive Officer waived any right monetary relief related to or arising during any period prior to December 31, 2015), and (iii) any rights to benefits other than base salary that may vest, or may have vested, under the Management Agreements.

The foregoing summary of the Settlement Agreements is qualified in its entirety by reference to the provisions of the Settlement Agreements filed as exhibits 10.3 and 10.4 to this Current Report on Form 8-K, which are incorporated herein by reference.

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.

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		Second Amended and Restated Management Service Agreement, dated July 31, 2016, between XcelMobility Inc. and Renyan Ge.

10.2		Second Amended and Restated Management Service Agreement, dated July 31, 2016, between XcelMobility Inc. and Xili Wang.

10.3		Settlement Agreement and Mutual Release dated July 31, 2016, between XcelMobility Inc. and Renyan Ge.

10.4		Settlement Agreement and Mutual Release dated July 31, 2016, between XcelMobility Inc. 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: August 2, 2016	/s/ Renyan Ge
	Renyan Ge
	Chief Executive Officer

EX-10.1 2 ex10-1.htm

Exhibit 10.1

SECOND AMENDED AND RESTATED MANAGEMENT SERVICE AGREEMENT

This Second Amended and Restated Management Service Agreement (this “Agreement”) is entered into as of the 31^st day of July 2016

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:

Renyan Ge, Businessman of 3F, West Block, M-8, Maqueling Industrial Park, Nanshan District, Shenzhen, China 518057 (the “Executive”).

WHEREAS:

A. The Company and Executive previously entered into a Management Service Agreement, dated as of August 1, 2011, and amended and restated such Management Service Agreement on August 28, 2014 (as amended and restated, the “Original Agreement”); and

B. The Company and Executive wish to amend and restate certain provisions of the Original Agreement to reflect the parties’ mutual agreement and to provide for the settlement of certain disputes pursuant to the terms set forth on that certain Settlement Agreement and Mutual Release dated the as of the date hereof, and which is attached hereto as Exhibit A (the “Settlement Agreement”).

NOW THEREFORE in consideration of the premises and mutual covenants herein contained, the parties hereto agree as follows:

1. 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 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. 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)	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;

	(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 the staff and the 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; and

	(s)	Advises the board in the development of policies and planning recommendations.

3. DURATION OF AGREEMENT

3.1. The term of appointment and engagement of Executive shall commence on January 1, 2015, and shall continue through August 31, 2016, inclusive.

4. REMUNERATION

4.1. Salary. 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)	Beginning on January 1, 2015 and continuing through August 31, 2016, the Company shall pay Executive a base salary of $50,000 per year, which shall be paid to Executive in bi-monthly installments; and

	(b)	On or before July 31, 2016, the Company shall pay to the Executive the Settlement Amount, as defined in and pursuant to the terms of the Settlement Agreement.

4.2. 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. 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

	Less than thirty six (36) months of service		Eighteen (18) months’ notice

	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 this 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 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;

	(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. 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. NON-COMPETITION

7.1 Executive also acknowledges that, by reason of his 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. 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. 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)	To Executive:

		Renyan Ge – Businessman of 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. 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. 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 that are not expressly set forth in this Agreement.

12. 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. 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. 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 Agreement.

15. 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.

[Signatures follow on a separate page.]

IN WITNESS WHEREOF, the parties hereto have executed these presents the day and year first above written.

XCELMOBILITY INC.

was hereunto affixed in the presence of:

By:
	Authorized Signatory

SIGNED, SEALED AND DELIVERED by
RENYAN GE in the presence of:


Signature


Address			RENYAN GE

EXHIBIT A

Settlement Agreement and Mutual Release

EX-10.2 3 ex10-2.htm

Exhibit 10.2

SECOND AMENDED AND RESTATED MANAGEMENT SERVICE AGREEMENT

This Second Amended and Restated Management Service Agreement (this “Agreement”) is entered into as of the 31^st day of July 2016

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:

Xili Wang, Businesswoman of 3F, West Block, M-8, Maqueling Industrial Park, Nanshan District, Shenzhen, China 518057 (the “Executive”).

WHEREAS:

NOW THEREFORE in consideration of the premises and mutual covenants herein contained, the parties hereto agree as follows:

1.	MANAGEMENT SERVICES

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 herself exclusively to the Company.

1.4. In carrying out these duties and responsibilities, Executive undertakes to comply with all lawful instructions and directions, which she may receive from the Company. The duties and responsibilities to be carried out by Executive will be commensurate with the duties of a CFO. 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 her employment. Executive is required to ensure that she conducts herself in a professional, business-like manner at all times.

1.6. Executive acknowledges and agrees to familiarize herself 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.	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)	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;

	(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 the staff and the 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; and

	(s)	Advises the board in the development of policies and planning recommendations.

3.	DURATION OF AGREEMENT

3.1. The term of appointment and engagement of Executive shall commence on January 1, 2015, and shall continue through August 31, 2016, inclusive.

4.	REMUNERATION

4.1. Salary. In consideration of Executive’s undertaking and performance of the obligations contained in this Agreement, the Company will compensate Executive for her services as follows:

	(a)	Beginning on January 1, 2015 and continuing through August 31, 2016, the Company shall pay Executive a base salary of $20,000 per year, which shall be paid to Executive in bi-monthly installments; and

	(b)	On or before July 31, 2016, the Company shall pay to the Executive the Settlement Amount, as defined in and pursuant to the terms of the Settlement Agreement.

4.2. Expenses. The Company will reimburse or pay for all reasonable business expenses incurred by Executive in the execution of her duties. This includes the expenses for airfare, accommodation and other business related expenses.

5.	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
Less than thirty six (36) months of service		Eighteen (18) months’ notice
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 her position and will return to the Company all property in 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 her obligations under this Agreement, Executive will not be entitled to notice, bonus payments or payment in lieu of notice of the termination of this Agreement. The engagement of Executive shall cease upon receipt of notice that her services are being terminated for just cause. For the purposes of this Agreement, “just cause” will be defined by the common law.

	(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 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;

	(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.	CONFIDENTIAL INFORMATION AND PROPERTY

	(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 her engagement except as may be necessary in the proper discharge of her employment, or after the term of her engagement, however caused, except with the written permission of the Company.

7.	NON-COMPETITION

7.1 Executive also acknowledges that, by reason of her 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.

7.4 Executive acknowledges and agrees that without prejudice to any and all other rights of the Company, in the event of her 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.	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.	NOTICE

	(a)	To the Company:

		Xcelmobility Inc. - 2225 East Bayshore Road, Suite 200, Palo Alto, CA 94303.

	(b)	To Executive:

		Xili Wang – Businesswoman of 3F, West Block, M-8, Maqueling Industrial Park, Nanshan District, Shenzhen, China 518057

10.

MODIFICATION/AMENDMENT

11.

ENTIRE AGREEMENT

12.

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.

VALIDITY

14.

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, she will sign additional documents that indemnify the Company against claims for taxes owed in relation to payments made to Executive based on this Agreement.

15.

SIGNATURES IN COUNTERPARTS

[Signatures follow on a separate page.]

IN WITNESS WHEREOF, the parties hereto have executed these presents the day and year first above written.

	XCELMOBILITY INC.

	was hereunto affixed in the presence of:

	By:
		Authorized Signatory

	SIGNED, SEALED AND DELIVERED by
	XILI WANG in the presence of:


	Signature


	Address			XILI WANG

EXHIBIT A

Settlement Agreement and Mutual Release

EX-10.3 4 ex10-3.htm

Exhibit 10.3

SETTLEMENT AGREEMENT AND MUTUAL RELEASE

This Settlement Agreement and Mutual Release (this “Settlement Agreement”) dated as of July 31, 2016, is entered into by and between Xcelmobility Inc. (the “Company”), and Renyan Ge (the “Executive,” and together with the Company, collectively, jointly and severally, referred to herein as the “Parties” or singularly a “Party”).

WHEREAS, the Company and Executive previously entered into that certain Management Service Agreement, dated as of August 1, 2011, and amended and restated such Management Service Agreement on August 28, 2014 (as amended and restated, the “Original Management Service Agreement”);

WHEREAS, as of the date hereof, certain remuneration owed to Executive pursuant to the Original Management Service Agreement remains accrued and unpaid;

WHEREAS, the Parties have reached an agreement regarding such accrued and unpaid remuneration, and the terms and conditions of such agreement are set forth herein; and

WHEREAS, to memorialize certain other agreements between the Parties, the Parties have amended and restated the Original Management Service Agreement on July 31, 2016 (as amended, the “Second Amended and Restated Management Agreement”).

NOW, THEREFORE, in consideration of the foregoing recitals and of the conditions, covenants and agreements set forth below, the amount and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Settlement. In consideration for Executive’s execution and compliance with this Settlement Agreement, including the waiver and release of Claims (as defined below) in Sections 2 and 3, respectively, the Company agrees to pay to Executive, on or before July 31, 2016 (the “Payment Date”), the amount of Fifty Thousand Dollars ($50,000), (without interest thereon, and less applicable tax and other withholdings, the “Settlement Amount”), which reflects the accrued and unpaid base salary owed to Executive pursuant to Section 4.1(a) of the Original Management Services Agreement, covering the period beginning on January 1, 2015 and continuing through and including December 31, 2015 (the “Settlement Period”).

2. Waiver. Subject to and effective upon the receipt by Executive of the Settlement Amount on or before the Payment Date, Executive hereby waives any and all Claims arising out of or related to accrued and unpaid base salary owed to Executive pursuant to Section 4.1(a) of the Original Management Services Agreement prior to the Settlement Period. Executive acknowledges and agrees that upon timely receipt of the Settlement Amount, such amount shall be in full satisfaction of all Claims for such accrued and unpaid base salary arising out of or relating to such accrued and unpaid base salary.

3. Mutual Releases.

(a) Subject to and effective upon the receipt by Executive of the Settlement Amount on or before the Payment Date, each of the Company and Executive does hereby irrevocably release the other Party, on behalf of themselves, and all persons or entities claiming by, through or under them, and their respective shareholders, officers, directors, heirs, successors and assigns, hereby fully, completely and finally waive, release, remise, acquit, and forever discharge and covenant not to sue the other Party (and, with respect to the Company, its officers, directors, shareholders, trustees, parent companies, sister companies, affiliates, subsidiaries, employers, attorneys, accountants, predecessors, successors, insurers, representatives, and agents), with respect to any and all claims, demands, suits, manner of obligation, debt, liability, expenses, or causes of action of any kind whatsoever, whether known or unknown, at law or in equity (collectively, “Claim(s)”), including without limitation, all claims and causes of action arising out of or in any way relating to (i) payment of the Settlement Amount, or (ii) accrued and unpaid base salary owed to Executive pursuant to Section 4.1(a) of the Original Management Services Agreement, covering the Settlement Period and any period prior thereto. The Parties warrant and represent that they have not assigned or otherwise transferred any Claim released by this Settlement Agreement.

(b) The Parties acknowledge and agree that these releases are GENERAL RELEASES. The Parties expressly waive and assume the risk of any and all Claims which exist as of this date, but which they do not know or suspect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect his or her or its decision to enter into this Settlement Agreement. The Parties expressly acknowledge that this waiver of Claims includes any Claims for any alleged fraud, deception, concealment, misrepresentation or any other misconduct of any kind in procuring this Settlement Agreement. The Parties specifically do not, however, waive or release any claim that may arise for breach of this Settlement Agreement. Executive specifically waives the protections of California Civil Code Section 1542, which states that “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

(c) The Parties acknowledge and agree that the Executive does not, by execution of this Settlement Agreement, waive, release or discharge any Claims arising out of relating to (i) accrued and unpaid compensation under the Original Management Service Agreement or the Second Amended and Restated Management Agreement that occur after the Settlement Period or after the date hereof; (ii) any right to file an administrative charge or complaint with the Equal Employment Opportunity Commission or other administrative agency, although Executive waives any right monetary relief related to or arising during the Settlement Period or any period prior thereto; and (iii) any rights to benefits other than base salary that may have vested under the Original Management Service Agreement, or that may vest under the Second Amended and Restated Management Agreement.

4. Tax Withholding. Executive acknowledges and agrees the Company and its counsel have not made any representations to Executive regarding the tax consequences of any payments or amounts received by Executive pursuant to this Settlement Agreement. In no event shall the Company be liable for all or any portion of any taxes, penalties, interest or other expenses that may be incurred by the Executive on account of payments made under this Settlement Agreement. Executive agrees to indemnify the Company against the payment of any taxes, interest, penalties, and other liabilities or costs that may be assessed upon the Company arising out of or relating to the payment of the Settlement Amount pursuant to this Settlement Agreement.

5. Authority. The Parties represent and warrant that they possess full authority to enter into this Settlement Agreement and to lawfully and effectively release the opposing Party as set forth herein, free of any rights of settlement, approval, subrogation, or other condition or impediment.

6. Entire Agreement. The Parties represent and agree that no promise, inducement, or agreement other than as expressed herein has been made to them and that this Settlement Agreement is fully integrated, supersedes all prior agreements and understandings and any other agreement between the Parties, and contains the entire agreement between the Parties.

7. Governing Law and Jurisdiction. The laws of the State of Nevada shall apply to and control any interpretation, construction, performance or enforcement of this Settlement Agreement.

8. Attorneys’ Fees and Costs for Breach. The prevailing Party in any action to enforce or interpret this Settlement Agreement is entitled to recover from the other Party its reasonable attorneys’ fees.

9. Modification. No oral agreement, statement, promise, undertaking, understanding, arrangement, act or omission of any Party, occurring subsequent to the date hereof may be deemed an amendment or modification of this Settlement Agreement unless reduced to writing and signed by the Parties hereto or their respective successors or assigns.

10. Severability. The Parties agree that if, for any reason, a provision of this Settlement Agreement is held unenforceable by any court of competent jurisdiction, this Settlement Agreement shall be automatically conformed to the law, and otherwise this Settlement Agreement shall continue in full force and effect.

11. Counterparts. This Settlement Agreement may be executed in several counterparts and all counterparts so executed shall constitute one agreement binding on all Parties hereto, notwithstanding that all the Parties are not signatories to the original or the same counterpart. Facsimile signatures shall be accepted the same as an original signature. A photocopy of this Settlement Agreement may be used in any action brought to enforce or construe this Settlement Agreement.

12. No Waiver. No failure to exercise and no delay in exercising any right, power or remedy under this Settlement Agreement shall impair any right, power or remedy which any Party may have, nor shall any such delay be construed to be a waiver of any such rights, powers or remedies or an acquiescence in any breach or default under this Settlement Agreement, nor shall any waiver of any breach or default of any Party be deemed a waiver of any default or breach subsequently arising.

13. Acknowledgment of Full Understanding. EXECUTIVE ACKNOWLEDGES AND AGREES THAT EXECUTIVE HAS FULLY READ, UNDERSTANDS, AND VOLUNTARILY ENTERS INTO THIS SETTLEMENT AGREEMENT. EXECUTIVE ACKNOWLEDGES AND AGREES THAT EXECUTIVE HAS HAD AN OPPORTUNITY TO ASK QUESTIONS AND CONSULT WITH AN ATTORNEY OF EXECUTIVE’S CHOICE BEFORE SIGNING THIS SETTLEMENT AGREEMENT. EXECUTIVE FURTHER ACKNOWLEDGES THAT EXECUTIVE’S SIGNATURE BELOW IS AN AGREEMENT TO RELEASE THE COMPANY FROM ANY AND ALL CLAIMS THAT CAN BE RELEASED AS A MATTER OF LAW.

[Signatures follow on a separate page.]

IN WITNESS WHEREOF, the Parties hereto have executed these presents the day and year first above written.

	XCELMOBILITY INC.

	was hereunto affixed in the presence of:

	By:
		Authorized Signatory

	SIGNED, SEALED AND DELIVERED by
	RENYAN GE in the presence of:


	Signature


	Address			RENYAN GE

EX-10.4 5 ex10-4.htm

Exhibit 10.4

SETTLEMENT AGREEMENT AND MUTUAL RELEASE

This Settlement Agreement and Mutual Release (this “Settlement Agreement”) dated as of July 31, 2016, is entered into by and between Xcelmobility Inc. (the “Company”), and Xili Wang (the “Executive,” and together with the Company, collectively, jointly and severally, referred to herein as the “Parties” or singularly a “Party”).

WHEREAS, as of the date hereof, certain remuneration owed to Executive pursuant to the Original Management Service Agreement remains accrued and unpaid;

WHEREAS, the Parties have reached an agreement regarding such accrued and unpaid remuneration, and the terms and conditions of such agreement are set forth herein; and

1. Settlement. In consideration for Executive’s execution and compliance with this Settlement Agreement, including the waiver and release of Claims (as defined below) in Sections 2 and 3, respectively, the Company agrees to pay to Executive, on or before July 31, 2016 (the “Payment Date”), the amount of Twenty Thousand Dollars ($20,000), (without interest thereon, and less applicable tax and other withholdings, the “Settlement Amount”), which reflects the accrued and unpaid base salary owed to Executive pursuant to Section 4.1(a) of the Original Management Services Agreement, covering the period beginning on January 1, 2015 and continuing through and including December 31, 2015 (the “Settlement Period”).

3. Mutual Releases.

7. Governing Law and Jurisdiction. The laws of the State of Nevada shall apply to and control any interpretation, construction, performance or enforcement of this Settlement Agreement.

10 Severability. The Parties agree that if, for any reason, a provision of this Settlement Agreement is held unenforceable by any court of competent jurisdiction, this Settlement Agreement shall be automatically conformed to the law, and otherwise this Settlement Agreement shall continue in full force and effect.

[Signatures follow on a separate page.]

IN WITNESS WHEREOF, the Parties hereto have executed these presents the day and year first above written.

XCELMOBILITY INC.

was hereunto affixed in the presence of:

By:
	Authorized Signatory

SIGNED, SEALED AND DELIVERED by

XILI WANG in the presence of:


Signature


Address			XILI WANG