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,
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 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”).


 


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.


 




    	2



    	 	 	 



    

 


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.]


 




    	3



    	 	 	 



    

 


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