ex10one.htm


     

     

    
      

      

    

    
 

    Advisory
Agreement

    


    This
Agreement is made as of March 15, 2009, by and between Tianyin Pharmaceutical
Co., Ltd. (“Company”), a Chinese company with its principal offices at 11th Floor,
South Tower, Jinjiang Times Garden, 107 Jin Li Road West, Chengdu, P. R. China
610072, and TriPoint Capital Advisors, LLC (“Advisor”), a Maryland, United
States, limited liability company, with its principal offices at 400
Professional Drive, Suite 310 Gaithersburg, Maryland 20879.

    


    Witnesseth

    


    WHEREAS, the Company currently
has an advisory agreement with the Advisors and would like to continue to
received the services provided by the Advisor; and

    


    WHEREAS, the Company requires
expertise in the area of business development to support it's business and
growth and desires to engage Advisor to provide such business development
services and specifically to assist the Company with its entry into the U.S.
capital markets in order to further its business and corporate development; and,
thereafter to assist the Company with its ongoing corporate compliance and
development; and

    


    WHEREAS,
Advisor, through its principals, agents and employees, has expertise in the
implementation of projects of the nature and type contemplated by the Company in
its future expansion and development which Advisor has agreed to provide to the
Company.

    


    NOW,
THEREFORE, in
consideration of the premise and the mutual promises and covenants contained
herein and subject specifically to the conditions hereof, and intending to be
legally bound thereby, the parties agree as follows:

    


    1.    Appointment
of Advisor

    


    The
Company hereby appoints Advisor, and Advisor agrees to represent the Company, as
a non-exclusive Advisor to assist the Company in its business and corporate
development, in structuring its capital transactions, including but not limited
to assistance with entering the U.S. capital markets, to assist the Company in
evaluating financing transactions, to assist in the contemplated marketing and
development of the Company in the United States, and to assist the Company with
its ongoing compliance obligations as a U.S. public company following the
completion of the contemplated transactions. Advisor shall have the right during
the term of this agreement to represent to the public that it is an Advisor to
the Company.

    


    2.    Advisor's
Rights and Duties

    


    Advisor
shall use its best efforts to assist the Company in its business and corporate
development, including but not limited to:

    


    
      	
               
      

            	
              i.

            	
              Review
      the Company’s current financing needs and assist the Company to develop a
      strategic plan in order to meet those
needs.

            


    

    


    
      
        	 	
                ii.

              	
                Assist the Company to
      remain compliant with the requirements of the NYSE Alternext Exchange
      including all filings, pre approvals, continued listings and
      registrations, communications and
events.

              


      

    

    
      
      

    

     

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

     

    
      
        	 	
                iii.

              	
                Assist
      the Company in the all rounds of private placement financing by reviewing
      the Company’s current capital structure and business operations and
      advising the Company as to the structure of future capital
      transactions.

              


      

       

    

    
      
        	 	
                iv.

              	
                Assist
      in the reviewing and editing of the Company’s business
    plan.

              


      

    

    


    
      	
               
      

            	
              v.

            	
              Assist
      each the Company in creating a corporate image for the U.S. capital
      markets including introductions to retail brokerage firms to assist in
      generating investor interest and assisting in creation of the proper
      presentation of the Company’s financial
story.

            


    

    


    
      
        	 	
                vi.

              	
                Assist
      the Company to identify and engage appropriate investment banking,
      investor relations, legal and accounting relationships necessary to carry
      out the Company’s strategic
plan.

              


      

    

    


    
      
        	 	
                vii.

              	
                Assist
      the Company in maintaining proper US corporate compliance and
      governance.

              


      

    

    


    
      
        	 	
                viii.

              	
                Review
      potential merger or acquisition candidates on behalf of the Company and
      advise as to the structure of any such
  transactions.

              


      

    

    


    
      
        	 	
                ix.

              	
                Work
      with the Company’s independent Auditor in order to assist the Company to
      comply with US GAAP accounting
standards.

              


      

    

    


    
      	
               
      

            	
              x.

            	
              Assist
      the Company to recruit outside directors to the public company when
      needed.

            


    

    


    
      
        	 	
                xi.

              	
                Such
      other duties as the Advisor and the Company may reasonably
      agree.

              


      

    

    


    3.    Company
Obligations

    


    (a)           The
Company’s officers, attorneys and accountants will have to be ready to answer
questions from the SEC, NASDAQ, AMEX and/or other regulatory agencies, markets
or exchanges.

    


    (b)           The
Company will need to have audited financial statements for at least the last
three fiscal years and have audited financial statements prepared in accordance
with US GAAP on an annual basis.  In addition, the Company will need
to prepare and present quarterly information that has been reviewed by an
independent auditor on a “go-forward basis”.

    


    4.    Company
Information

    


    In
connection with Advisor's performance of its duties hereunder, the Company shall
(i) provide Advisor, on a timely basis, all information reasonably requested by
Advisor, and  (ii) make its officers and professionals available to
Advisor and such third parties as Advisor shall designate, as agreed to in
advance by the Company, at reasonable times and upon reasonable
notice.

    


    5.    Confidential
Information

    


    Advisor
acknowledges that, in the course of performing its duties hereunder, it may
obtain information relating to the Company, which the Company has marked as
confidential ("Confidential Information").  Advisor shall hold at all
times, both during the term of this agreement and at all times thereafter, such
Confidential Information in the strictest confidence, and shall not use such
Confidential Information for any purpose, other than as may be reasonably
necessary for the performance of its duties pursuant to this agreement, without
the Company's prior written consent.  Advisor shall not disclose any
Confidential Information to any person or entity, other than to Advisor's
employees or Advisors as may be reasonably necessary for purposes of performing
its duties hereunder, without the Company's prior written
consent.   The foregoing notwithstanding, the term "Confidential
Information" shall not include information which (i) becomes generally available
to the public, other than as a result of a breach hereof, (ii) was available on
a non-confidential basis prior to its disclosure to Advisor by the Company, or
(iii) becomes available to Advisor on a non-confidential basis from a source
other than the Company, provided that such source is not bound by a
confidentiality agreement with respect to such information.  The
foregoing notwithstanding, Advisor may disclose Confidential Information to the
extent required by law or regulation, including but not limited to court orders,
subpoenas, civil investigative demands and interrogatories.

     

     

     

    
      
         

      

      
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    6.    Compensation

    


    As
compensation for Advisor’s services, the Company shall pay Advisor a flat fee
monthly fee of $15,000 per month, payable on the 1st day of
each month.

    


    As
further compensation for the Advisor’s active participation in the development
of the Company’s strategic development, as contemplated in this Agreement, the
Company will issue to Advisor and/or its affiliates 150,000 5 year common stock
options at strike price of $1.60, which options shall vest in full on October 1,
2009. The Company hereby agrees to use its best efforts to register for resale
the shares underlying the Options (the “Option Shares”) in the next
registrations statement or amendment to the current registration statement that
is expected to be filed.

    


    


    7.   
Due Diligence

    


    The
Company agrees to  (i) allow TriPoint to conduct detailed due
diligence on the Company, (ii) provide updated three-year financial
projections, (iii) provide a detailed schedule of expected material milestones
for the next 24 months, (iv) provide a detailed use of proceeds during the next
12 months, (v) provide a comprehensive business plan and (v) provide an
updated management presentation; and will provide such information that is
reasonably necessary to ensure that TriPoint is fully capable of performing
under the terms of this Agreement.

    


    The
Company understands that Advisor is not a broker-dealer and as such will not act
as a placement agent in connection with any merger, acquisition or financing
transaction, nor will Advisor take commission based fees for any services
provided hereunder and is solely acting as an advisor with regard to such
transactions in addition to other services being provided
hereunder.  One of the Advisor’s affiliates, TriPoint Global Equities,
LLC is a licensed broker-dealer and the Company agrees that Advisor or its
affiliated entity shall enter into a separate placement agreement with the
broker dealer upon execution of this agreement.

    


    


    8.  
Indemnification

    


    The
Company agrees to indemnify and hold harmless Advisor (including each of its
directors, officers, employees, partners and agents) with respect to any
liability (and actions in respect thereof) incurred by Advisor by virtue of its
retention hereunder and shall reimburse Advisor for any legal or other expenses
reasonably incurred in connection with  investigating or defending any
such liability or action, provided that the Company shall have
the  right to control the defense of any claim giving rise to such
liability and no such claim shall be settled  without the consent of
the Company.  The foregoing provisions shall survive termination of
this Agreement and any investigation with respect thereto by any party
hereto.

     

     

     

    
      
         

      

      
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    The
Company understands and agrees that its financial statements, any filings
which  the Company makes with the SEC, NASD, AMEX, state regulators or
any market or exchange and the contents thereof are ultimately the
responsibility of the Company and its officers and directors. Advisor can assist
and advise the Company in the preparation of such filings but the Company must
approve and is responsible for the contents of all filings.

    


    9.    Other
Engagements

    


    The
Company acknowledges that Advisor is and will be acting as a Advisor to other
business enterprises seeking business development, investment banking and/or
other services normally provided by Advisor and agrees that Advisor's provision
of services to such enterprises shall not constitute a breach hereof or of any
duty owed to the Company by virtue of this agreement.

    


    10.    Term

    


    This
agreement is effective upon execution by the Company as provided below and shall
continue in effect for 12 months or until terminated by either party pursuant to
Section 14.

    


    11.    Termination

    


    Either
party may terminate this agreement at any time and for any reason, with or
without cause, upon the giving 30 days written notice of termination to the
other party; provided, however, that Advisor shall be entitled to full
compensation, as set forth in Section 6, up to the date of termination,
regardless of the reason for the termination and shall be paid all expenses
incurred in connection with its acting as a Advisor to the Company pursuant to
Section 7.

    


    


    12.     Choice
of Law; Dispute Resolution

    


    (a)           This
AGREEMENT shall be interpreted, controlled, and en­forced in accordance with
the substantive laws of the State of New York.

    


    (b)           Each
party shall bear its own expenses in any litigation conducted under this
section.

    


    (c)           Disputes;
Arbitration.

    


    (i)           Mandatory
Arbitration.   All disputes arising out of or relating to this
AGREEMENT will be resolved by mandatory, binding arbitration in accordance with
this Section 13(c).

    


    (ii)           Friendly
Negotiations.   Before any arbitration is commenced pursuant to
this Section 15(c), the Parties must endeavor to reach an amicable settlement of
the dispute through friendly negotiations.

    


    (iii)           Commencement
of Arbitration.   If no mutually acceptable settlement of the
dispute is made within the sixty (60) days from the commencement of the
settlement negotiation or if any party to this AGREEMENT refuses to engage in
any settlement negotiation, any party to this AGREEMENT may submit the dispute
for arbitration.

     

     

     

     

    
      
         

      

      
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    (iv)           Arbitration.   Any
arbitration commenced pursuant to this Section 13(c) will be conducted in Hong
Kong under the Arbitration Rules of the United Nations Commission on
International Trade Law by arbitrators appointed in accordance with such rules.
The arbitration and appointing authority will be the Hong Kong International
Arbitration Centre (“HKIAC”). The arbitration will be conducted by a panel of
three arbitrators, one chosen by each party to this AGREEMENT and the third by
agreement of the parties; failing agreement within 30 days of commencement of
the arbitration proceeding, the HKIAC will appoint the third arbitrator. The
proceedings will be confidential and conducted in English. The arbitral tribunal
will have the authority to grant any equitable and legal remedies that would be
available in any judicial proceeding instituted to resolve a disputed matter,
and its award will be final and binding on the parties. The arbitral tribunal
will determine how the parties will bear the costs of the arbitration.
Notwithstanding the foregoing, each party will have the right at any time to
immediately seek injunctive relief, an award of specific performance or any
other equitable relief against the other party in any court or other tribunal of
competent jurisdiction. During the pendency of any arbitration or other
proceeding relating to a dispute between the parties, the parties will continue
to exercise their remaining respective rights and fulfill their remaining
respective obligations under this AGREEMENT, except with regard to the matters
under dispute.

    


    13.    General
Provisions

    


    (a)           
This agreement constitutes the entire agreement and final understanding of the
parties with respect to the subject matter hereof and supersedes and terminates
all prior and/or contemporaneous understandings and/or discussions between the
parties, whether written or verbal, express or implied, relating in any way to
the subject matter hereof.  This agreement may not be altered,
amended, modified or otherwise changed in any way except by a written agreement,
signed by both parties.

    


    


    (b)           
Any notice or other communication pursuant hereto shall be given to a party at
its address first set forth above by (i) personal delivery, (ii) commercial
overnight courier with written verification of receipt, or (iii) registered or
certified mail.  If so mailed or delivered, a notice shall be deemed
given on the earlier of the date of actual receipt or three (3) days after the
date of authorized delivery.

    


    


    (c)           
This agreement may be executed in counterparts, each one of which shall
constitute an original and all of which taken together shall constitute one
document. The Company shall confirm that the foregoing is in accordance with its
understanding by signing and returning to Advisor the enclosed copy of this
agreement, which shall become a binding agreement upon Advisor's
receipt.

    


     

     

     

    
      
         

      

      
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    IN WITNESS WHEREOF, the parties hereto
have caused this agreement to be duly executed as of the date first written
above.

    


    TRIPOINT
CAPITAL ADVISORS, LLC

    


    


    


    


    By:_____________________________

        Mark
Elenowitz

        Managing
Director

    


    


    


    TIANYIN
PHARMACEUTICAL CO., LTD.

    


    


    


    


    By:_____________________________

    Guoqing
Jiang

    Chairman/CEO

    


    


     

    


     

    


    


    


    
      
         

      

      
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    Wiring
Instructions

     

     

    


     

     

    Mid
Atlantic Federal Credit Union, Gaithersburg, MD 20898

     

     

    ABA
#255077477

     

     

    FBO:
TriPoint Capital Advisors, LLC

     

     

    Account:
800207350

     

     

     

    
 


    
      
         


      

      
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