Attached files
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| 8-K - China Premium Lifestyle Enterprise, Inc. | v176448_8k.htm |
| EX-10.2 - China Premium Lifestyle Enterprise, Inc. | v176448_ex10-2.htm |
Exhibit
10.1
SETTLEMENT
AGREEMENT
(China
Premium Lifestyle Enterprise, Inc. v. Defendants)
This
Settlement Agreement (“Settlement Agreement”) is
effective on the date of execution by the last signatory hereto (the “Effective Date”) by and
between CHINA PREMIUM LIFESTYLE ENTERPRISE, INC. (“China Premium” or the “Company”), on the first hand,
and FRED DE LUCA (“De
Luca”), FEDERICO CABO (“Cabo”), ROBERT PAUTSCH (“Pautsch”), CHARLES MISEROY
(“Miseroy”), DELIA
RODRIGUEZ (“Delia
Rodriguez”), RICHARD CABO (“Richard Cabo”), GLOBAL PREMIUM
BRANDS CO., INC., a California corporation (“California Global”), and
GLOBAL PREMIUM BRANDS CO., INC., a Nevada corporation (“Nevada Global”) (collectively,
De Luca, Cabo, Pautsch, Miseory, Delia Rodriguez, Richard Cabo, California
Global and Nevada Global, are referred to herein as the “Cabo/De Luca Defendants”), on
the second hand, and BERN NOBLE, LTD (“Bern Noble”), EDWARD W.
WITHROW, III (“Ted
Withrow”) and KYLE WITHROW (“Kyle Withrow”) (collectively,
Bern Noble, Ted Withrow and Kyle Withrow are referred to herein as the “Withrow Defendants”), on the
third hand (China Premium, the Cabo/De Luca Defendants and the Withrow
Defendants are collectively referred to herein as the “Parties” and individually as a
“Party”).
RECITALS
WHEREAS,
on December 19, 2008, the Company filed an action, styled China Premium Lifestyle Enterprise,
Inc. v. Happy Emerald Limited, et al., in the United States District
Court, Central District of California, Case No. SACV08-1439 (the “Action”), asserting claims
against the Cabo/De Luca Defendants, as well as Happy Emerald Ltd., a purported
British Virgin Islands corporate entity (“HEL”).
WHEREAS,
on May 5, 2009, the Company filed its Second Amended Complaint in the Action
(the “SAC”).
WHEREAS,
the Cabo/De Luca Defendants filed their First Amended Answer to the SAC on
August 17, 2009. Cabo, De Luca and Nevada Global asserted a First
Amended Counterclaim (“Counterclaim”) against the
Company, Ted Withrow, Nills Ollquist (“Ollquist”) and Orient
Financial Services (“OFS”) (the “Counterclaim”). Cabo,
De Luca and Pautsch also asserted a First Amended Crossclaim (“Crossclaim”) against Bern
Noble, Ted Withrow and Kyle Withrow.
WHEREAS,
on December 17, 2008, Cabo, De Luca and Nevada Global filed a state court
action, styled Federico G.
Cabo, et al. v. China Premium Lifestyle Enterprise, Inc., et al.,
California Superior Court, Ventura County, Case No.
56-2008-00333382-CU-BC-VTA (the “State Court Action”) against
multiple defendants, including the Company and the Withrow
Defendants. By agreement with the Company, the State Court Action was
dismissed, without prejudice, and Cabo, De Luca and Nevada Global asserted
similar claims in their Counterclaim and Crossclaim in the
Action. For the purposes of this Settlement Agreement, the claims
asserted in the State Court Action are incorporated into and the Parties intend
them to be included in the claims asserted in the Action.
WHEREAS,
the Company filed its answer to the Counterlciam on November 9, 2009, denying
the allegations contained therein as to the Company. Ted Withrow and
Kyle Withrow filed their answer to the Counterclaim and Crossclaim on September
9, 2009, denying the allegations contained therein as to them. Bern
Noble filed its answer to the Crossclaim on September 3, 2009, denying the
allegations contained therein as to it.
WHEREAS,
the Parties participated in a Mandatory Settlement Conference before the
Honorable Patrick J. Walsh on December 2, 2009 (the “MSC”).
WHEREAS,
the Parties desired to settle all claims which were asserted in the Action
without incurring further costs of litigation, and without admission by the
Parties as to any of the allegations set forth in the Action. As
such, at the conclusion of the MSC, the Parties reached a resolution in
principal of the matters asserted in the Action.
NOW,
THEREFORE, in consideration of the mutual promises set forth below, and other
good and valuable consideration, the receipt and sufficiency of which is
acknowledged by each of the Parties, the Parties agree as
follows:
Page
2
TERMS
1.
Incorporation
of Recitals
The Parties repeat and incorporate the
foregoing recitals as if fully set forth herein.
2.
Return and
Cancellation of the Cabo/De Luca Defendants’ Shares
The Cabo/De Luca Defendants, jointly
and severally, shall return to counsel for the Company Certificate No. 8 for
247,798 shares of the Company’s Series A Convertible Preferred Stock in the name
of Happy Emerald Limited and Certificate No. CPL 1020 for 4,569,619 shares of
the Company’s common stock in the name of Global Premium Brands, Co., Inc.
(collectively, the “Cabo/De
Luca Shares”), within 2 business days of the Effective Date of this
Settlement Agreement, for immediate cancellation, all free from encumbrances and
third party rights whatsoever. The Cabo/De Luca Defendants, jointly
and severally, hereby relinquish all right, title, and interest in and to the
Cabo/De Luca Shares and hereby acknowledge and agree that such shares are hereby
cancelled. Simultaneously with the execution of this Settlement
Agreement, all necessary and appropriate members of the Cabo/De Luca Defendants
shall execute the Irrevocable Letter of Instruction regarding the cancellation
of the Cabo/De Luca Shares in the form attached hereto as Attachment
1.
3. Return and Cancellation of
the Bern Noble Shares
Bern Noble, and its principal, Ted
Withrow, jointly and severally, shall return to counsel for the Company
Certificate No. CPL 1021 in the name of Bern Noble for 880,631 shares of common
stock of the Company (the “Bern
Noble Shares”), within 2 business days of the Effective Date of this
Settlement Agreement, for immediate cancellation, all free from encumbrances and
third party rights whatsoever. Bern Noble and Ted Withrow, jointly
and severally, hereby relinquish all right, title, and interest in and to the
Bern Noble Shares and hereby acknowledge and agree that such shares are hereby
cancelled. Simultaneously with the execution of this Settlement
Agreement, Bern Noble and Ted Withrow shall execute the Irrevocable Letter of
Instruction regarding the cancellation of the Bern Noble Shares in the form
attached hereto as Attachment 2.
Page
3
4. Representations and
Warranties by the Defendants
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A.
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Possession, Custody and Control
of the Cabo/De Luca Shares. The Cabo/Deluca Defendants,
jointly and severally, represent and warrant that one or more them, and no
other party, have physical possession of all certificates for the Cabo/De
Luca Shares, and that no other party has any interest, right, or other
claim (whether directly or indirectly) to the Cabo/De Luca Shares, or any
portion or derivatives thereof.
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B.
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Possession, Custody and Control
of the Bern Noble Shares. Bern Noble and Ted Withrow,
jointly and severally, represent and warrant that one or more them, and no
other party, have physical possession of all certificates for the Bern
Noble Shares, and that no other party has any interest, right, or other
claim (whether directly or indirectly) to the Bern Noble Shares, or any
portion or derivatives thereof.
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5. Resignation of Directorship
by De Luca
Upon the
execution of this Settlement Agreement, De Luca shall voluntarily resign as a
Director of the Company and hereby agrees to waive any claimed past-due or
current director fees or other compensation from the Company. De
Luca, concurrently with execution of this Settlement Agreement, will submit to
the Company the Resignation and Waiver of Fees form attached hereto as
Attachment 3.
6.
Dismissal of
the Action with Prejudice
Upon the
execution of this Settlement Agreement, China Premium shall cause the SAC to be
dismissed with prejudice as to the Cabo/De Luca Defendants and the Withrow
Defendants, and the Cabo/De Luca Defendants shall cause the Counterclaim to be
dismissed with prejudice as to China Premium, each Party to bear its own
costs. Counsel for said Parties shall sign a Stipulation of Dismissal
concurrently with the execution of this Settlement Agreement, and hereby
authorize counsel for the Company to file such executed Stipulation of Dismissal
with the Court upon receipt of same.
Page
4
7. Releases by The Cabo/De Luca
Defendants
For valuable consideration as set forth
herein, receipt of which is hereby acknowledged, and intending to be legally
bound hereby, except for the obligations set forth in this Settlement Agreement,
the Cabo/De Luca Defendants, for and on behalf of themselves and on behalf of
their parents, subsidiaries, divisions, assigns, affiliated entities, managers,
principals, directors, officers, shareholders, partners, members, fiduciaries,
insurers, employees, attorneys and agents (the “Cabo/De Luca Releasing
Parties”) hereby absolutely, irrevocably and unconditionally release and
forever discharge China Premium, including its parents, subsidiaries, divisions,
assigns, affiliated entities, managers, principals, directors, officers,
shareholders, partners, members, fiduciaries, insurers, employees, attorneys and
agents (the “China Premium
Released Parties”), from any and all claims, causes of action and/or
defenses (whether directly or indirectly) asserted in the Action (including the
State Court Action).
8. Releases by The Withrow
Defendants
For
valuable consideration as set forth herein, receipt of which is hereby
acknowledged, and intending to be legally bound hereby, except for the
obligations set forth in this Settlement Agreement, the Withrow Defendants, for
and on behalf of themselves and on behalf of their parents, subsidiaries,
divisions, assigns, affiliated entities, managers, principals, directors,
officers, shareholders, partners, members, fiduciaries, insurers, employees,
attorneys and agents (the “Withrow Releasing Parties”)
hereby absolutely, irrevocably and unconditionally release and forever discharge
the China Premium Released Parties from any and all claims, causes of action
and/or defenses (whether directly or indirectly) asserted in the Action
(including the State Court Action).
9. Releases by China
Premium
For
valuable consideration as set forth herein, receipt of which is hereby
acknowledged, and intending to be legally bound hereby, except for the
obligations set forth in this Settlement Agreement, China Premium, for and on
behalf of itself, and all of its parents, subsidiaries, divisions, assigns,
affiliated entities, managers, principals, directors, officers, shareholders,
partners, members, fiduciaries, insurers, employees, attorneys and agents (the
“China Premium Releasing
Parties”) hereby absolutely, irrevocably and unconditionally releases and
forever discharges the Cabo/De Luca Defendants and the Withrow Defendants,
including and their parents, subsidiaries, divisions, assigns, affiliated
entities, managers, principals, directors, officers, shareholders, partners,
members, fiduciaries, insurers, employees, attorneys and agents (the “Defendant Released Parties”),
from any and all claims, causes of action and/or defenses (whether directly or
indirectly) asserted in the Action (including the State Court
Action).
Page
5
10.
Waiver of Civil Code
§ 1542
The
Parties understand that this Settlement Agreement includes their release of
unknown claims. The Parties acknowledge that they have been advised
by legal counsel and are familiar with California Civil Code § 1542, which
provides as follows:
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.
Having
been fully informed of the provisions of California Civil Code § 1542, and any
other applicable law of similar import or effect, the Parties nevertheless
hereby waive any rights which they may otherwise have to dispute the scope of
this Settlement Agreement, or the releases contained herein, on the ground of
said code sections, laws or theories.
11.
Consideration/No Admission
of Liability
The
Parties hereto acknowledge the acceptance and sufficiency of the consideration
provided in exchange for the releases and other covenants contained in this
Settlement Agreement. The resolution reached by the Parties as set
forth in this Settlement Agreement is a compromise in settlement of a dispute
and does not constitute an admission of liability by any Party. No
statements made or actions taken by a Party shall be considered as an admission
of fault by a Party.
12.
Consultation
with Counsel
The
Parties acknowledge that each of them has had the opportunity to consult with
legal counsel of their own selection about this Settlement
Agreement. The Parties each understand how this Settlement Agreement
will affect their legal rights and voluntarily enter into this Settlement
Agreement with such knowledge and understanding.
13.
No Oral
Representations
Each
Party acknowledges that he has not relied upon any oral representation in
entering into this Settlement Agreement and that all agreements between the
Parties with respect to the subject matter hereof are set forth in
writing. This Settlement Agreement may not be changed or modified,
except by a writing signed by the Parties hereto.
Page
6
14.
Construction
The
preparation of this Settlement Agreement has been a joint effort of the Parties
hereto and this Settlement Agreement and any term or provision thereof shall not
be construed more severely against any Party as the drafter of this Settlement
Agreement, notwithstanding any presumption of law to the
contrary. Any rule of law or decision that would require
interpretation of any claimed ambiguities in this Settlement Agreement against
the Party that drafted it has no application and is expressly
waived.
15.
Governing
Law
This
Settlement Agreement will be governed by and construed under the laws of the
State of California without regard to conflicts of laws
principles. The Parties hereby consent to and waive all objections to
the non-exclusive personal jurisdiction of, and venue in, the Court in which the
Action was pending on the date of this Settlement Agreement, for the purposes of
all cases and controversies involving this Settlement Agreement and its
enforcement.
16.
Stipulation
Regarding Settlement
This
Settlement Agreement constitutes a stipulation in writing as defined in
California Code of Civil Procedure § 664.6 which provides:
IF
PARTIES TO PENDING LITIGATION STIPULATE, IN WRITING OR ORALLY BEFORE THE COURT,
FOR SETTLEMENT OF THE CASE, OR PART THEREOF, THE COURT, UPON MOTION, MAY ENTER
JUDGMENT PURSUANT TO THE TERMS OF THE SETTLEMENT.
The
Parties hereby agree and stipulate that the Court before which the Action was
pending shall retain jurisdiction to enforce the terms of this Settlement
Agreement.
17.
Legal
Fees
The
Parties shall bear their own legal fees and costs relating to the Action or the
preparation of this Settlement Agreement and related documents. In
the event of any litigation arising out of this Settlement Agreement, the
prevailing party shall recover from the other party the prevailing party’s
reasonable attorneys’ fees, paralegals’ fees, expert witness fees, and other
fees, costs, and expenses incurred in connection with such litigation through
and including exhaustion of any appeals taken by any party.
Page
7
18.
General Representations and
Warranties
The
Parties hereby represent and warrant (a) that they own all rights, titles and
interests to claims released herein; and (b) that they have not assigned or
agreed to assign any such right, title, interest, claim, or cause of action, in
whole or part, to any other party, and (c) that they have not assigned, agreed
to assign, or purported to have assigned or agreed to assign any rights, titles,
or interests in any claim or cause of action that would be part of the claims
released in this Settlement Agreement, and (d) that they now have full power and
authority to compromise, settle, extinguish, and release all such rights,
titles, interests, claims, demands, actions, and causes of actions released in
this Settlement Agreement. The individuals signing herein acknowledge
that they have the authority to sign on behalf of the respective Parties to the
Settlement Agreement.
19.
Counterparts
This
Settlement Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together constitute
one and the same document. Facsimiles and emails will carry the same
weight and authority as original signatures.
IN WITNESS WHEREOF, the below parties
have caused this Settlement Agreement to be executed as of the day and year as
set forth below:
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CHINA
PREMIUM LIFESTYLE ENTERPRISE, INC.
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/s/Herbert Adamczyk
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By:
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Herbert
Adamczyk
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Title:
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Director
and Chief Operating Officer
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Date:
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February
26, 2010
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FRED
DE LUCA
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/s/Fred De Luca
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Date:
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February
17, 2010
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Page
8
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FEDERICO
CABO
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/s/Federico Cabo
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Date:
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February
16, 2010
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ROBERT
PAUTSCH
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/s/Robert Pautsch
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Date:
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February
17, 2010
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CHARLES
MISEROY
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/s/Charles Miseroy
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Date:
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February 17,
2010
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DELIA
RODRIGUEZ
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/s/Delia Rodriguez
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Date:
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February
16, 2010
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RICHARD
CABO
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/s/Richard Cabo
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Date:
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February
16, 2010
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GLOBAL PREMIUM BRANDS CO.,
INC., a California
corporation
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/s/Delia Rodriguez
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By:
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Delia
Rodriguez
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Title:
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President
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Date:
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February
16, 2010
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9
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GLOBAL PREMIUM BRANDS CO.,
INC., a Nevada
corporation
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/s/Delia Rodriguez
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By:
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Delia
Rodriguez
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Title:
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President
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Date:
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February
16, 2010
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BERN
NOBLE, LTD
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/s/Edward W. Withrow III
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By:
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Edward
W. Withrow III
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Title:
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President
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Date:
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February
26, 2010
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EDWARD
W. WITHROW, III
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/s/Edward W. Withrow III
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Date:
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February 26,
2010
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KYLE
WITHROW
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/s/Kyle Withrow
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Date:
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February 26,
2010
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Page
10
Exhibit
10.1
Attachment
1
IRREVOCABLE
LETTER OF INSTRUCTION
FOR VALUE RECEIVED, the undersigned hereby
agree to cancel Two Hundred and Forty Seven Thousand Seven Hundred and Ninety
Eight (247,798) shares of Series A Convertible Preferred Stock of CHINA PREMIUM LIFESTYLE ENTERPRISE,
INC., a Nevada corporation (the “Company”), standing in the name of HAPPY EMERALD LIMITED on the
books of the Company, represented by certificate number 8 herewith, and Four Million
Five Hundred and Sixty Nine Thousand Six Hundred and Nineteen (4,569,619) shares
of the Company’s common stock standing in the name of GLOBAL PREMIUM BRANDS CO.,
INC. on the books of the Company, represented by certificate number CPL 1020 herewith, and hereby
irrevocably and unconditionally constitute and appoint the Company or its
transfer agent as their attorney to cancel said stock on the books of the
Company with full power of substitution in the premises.
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FRED
DE LUCA
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/s/Fred De Luca
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Date:
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February
17, 2010
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FEDERICO
CABO
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/s/Federico Cabo
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Date:
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February
16, 2010
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ROBERT
PAUTSCH
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/s/Robert Pautsch
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Date:
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February
17, 2010
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CHARLES
MISEROY
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/s/Charles Miseroy
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Date:
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February
17, 2010
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DELIA
RODRIGUEZ
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/s/Delia Rodriguez
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Date:
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February
16, 2010
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RICHARD
CABO
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/s/Richard Cabo
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Date:
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February
16, 2010
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GLOBAL PREMIUM BRANDS CO.,
INC.,
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a
California corporation
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/s/Delia Rodriguez
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By:
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Delia
Rodriguez
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Title:
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President
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Date:
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February
16, 2010
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GLOBAL PREMIUM BRANDS CO.,
INC.,
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a
Nevada corporation
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/s/Delia Rodriguez
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By:
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Delia
Rodriguez
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Title:
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President
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Date:
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February
16, 2010
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Exhibit
10.1
Attachment
2
IRREVOCABLE
LETTER OF INSTRUCTION
FOR VALUE RECEIVED, the undersigned hereby
agrees to cancel Eight Hundred and Eighty Thousand Six Hundred and Thirty One
(880,631) shares of common stock of CHINA PREMIUM LIFESTYLE ENTERPRISE,
INC., a Nevada corporation (the “Company”), standing in the name of BERN NOBLE, LTD. on the books
of the Company, represented by certificate number CPL 1021 herewith, and hereby
irrevocably and unconditionally constitutes and appoints the Company or its
transfer agent as its attorney to cancel said stock on the books of the Company
with full power of substitution in the premises.
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Dated: February
26, 2010
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BERN NOBLE, LTD, a
Nevada corporation
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By:
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/s/Edward W. Withrow III
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Print
Name: Edward W. Withrow III
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Title: President
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Exhibit
10.1
Attachment
3
China
Premium Lifestyle Enterprise, Inc.
10/F, Wo
Kee Hong Building
585-609
Castle Peak Road
Kwai
Chung, N.T. Hong Kong
Re: Resignation
To Whom
It May Concern:
I hereby
resign from my position as a director of China Premium Lifestyle Enterprise,
Inc., a Nevada corporation (the “Company”), effective immediately. I
acknowledge and agree that I am not owed any compensation, fees, payments,
reimbursement for expenses or any other amount, in any form whatsoever,
including, without limitation, cash or Company securities, (i) for any services
provided by me for the Company, including all services provided in my capacity
as a director or in any other capacity, or (ii) pursuant to any written or oral
agreements or understandings between myself and the Company, all of which are
hereby terminated.
Sincerely,
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/s/Fred De Luca
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Date: February
17, 2010
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Fred
De Luca
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