Attached files
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| 8-K - NYXIO TECHNOLOGIES Corp | v194640_8k.htm |
RESCISSION
AGREEMENT
This
Rescission Agreement ("Agreement") is made and entered into
as of the 16th day of August, 2010, by and among LED Power, Inc. ("LPI"),
Trussnet Capital Partners (HK) Ltd. ("TCP"), Trussnet Capital Partners (Cayman)
Ltd. (“Trussnet Cayman”) and Coach Capital, LLC (“Coach”). LPI,
Coach, TCP and Trussnet Cayman are each individually referred to in this
Agreement as a “Party” and collectively referred to in this Agreement as the
“Parties.”
RECITALS
A. LPI and TCP
allegedly entered into that certain Assignment and Assumption Agreement dated
the 12th day of January, 2009 ("Assignment Agreement"), a copy of which is
attached to this Agreement as Exhibit A and by this reference made a part of
this Agreement;
B. The Parties
desire to have the Assignment Agreement rescinded and to revoke the terms and
conditions set forth in the Assignment Agreement, and transfer and return to
their prior respective owners all assets and property that allegedly was or may
have been transferred pursuant to the terms of the Assignment
Agreement;
C. The Parties
entered into an oral agreement pursuant to which Trussnet Cayman was: (i) to be
paid $10 million dollars (USD) by LPI; and (ii) receive fifty-one percent (51%)
of the issued and outstanding shares of LPI (“LPI Controlling
Shares”). Pursuant to the terms of an oral agreement, LPI was to
receive, among other things, the benefits of the Assignment Agreement (“Oral and
Written Agreements”). Those benefits included, among other things,
any ownership claim, right, title and interest in and to the Exclusive License
Agreement allegedly attached to the Assignment Agreement as Exhibit B (“License Agreement”) that was allegedly assigned
to and assumed by LPI, as consideration for the issuance of the LPI Shares
(defined below) pursuant to the terms of the Assignment Agreement;
D. The Parties
acknowledge that: (i) Coach provided a payment of $350,000 of the $10 million
(“Coach Payment”) to Trussnet Cayman; (ii) Trussnet Cayman allegedly never
received the LPI Controlling Shares; and (iii) LPI allegedly never received a
fully executed Exclusive License Agreement that was allegedly attached to the
Assignment Agreement as Exhibit B;
E . Each of TCP and Trussnet
Cayman agree that, as part of the consideration for the execution of this
Agreement, they are willing relinquish and forever waive any ownership claim or
right to the 22,500,000 pre-split shares of common stock of LPI (“LPI Shares”)
allegedly issued to Trussnet Cayman, as designee of TCP, pursuant to the terms
of the Assignment Agreement. Neither TCP nor Trussnet Cayman have
allegedly ever received a stock certificate representing
the LPI Shares, but are nevertheless willing to agree to execute any additional documents necessary to evidence their
relinquishment of any ownership claim or right to the LPI Shares;
and
F. TCP and Trussnet
Cayman are willing to return the Coach Payment in the form of unrestricted
Series A common stock of China Tel Group, Inc. (“ChinaTel Shares”) which LPI and
Coach are willing to accept on the terms and conditions set forth below relating
to the repayment of the Coach Payment.
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NOW, THEREFORE, in
consideration of the promises and mutual covenants contained in this Agreement,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, it is hereby agreed by and between the Parties as
follows:
AGREEMENT
1. Rescission. The
Parties to this Agreement hereby individually and jointly agree that, in
accordance with the terms of this Agreement, the Oral and Written Agreements
shall be rescinded and that all terms, conditions, covenants, representations
and warranties contained in the Oral and Written Agreements shall terminate and
be deemed null and void and of no further effect whatsoever effective
upon: (i) receipt by Coach of: the Coach Payment; and (ii) execution
by TCP and Trussnet Cayman of whatever documents are necessary to evidence their
respective relinquishment and waiver of any ownership claim or right to the LPI
Shares (“Closing”). Such documents shall be provided to TCP and
Trussnet Cayman by LPI and Coach within ten (10) business days after the
execution of this Agreement by the Parties (“Execution Date”); failure by LPI
and Coach to do so shall be deemed a waiver of this condition by LPI and Coach,
at which time the “Closing” shall occur when the Coach Payments has been
received by Coach.
2. Assignment Agreement and License
Agreement. The Parties to this Agreement hereby agree that any
and all licenses, intellectual property, assets, property of any kind,
securities or items of value that may have been allegedly assigned or
transferred pursuant to the terms of the Oral and Written Agreements and the
License Agreement (collectively, “Subject Agreements”) are to be, upon the
Closing, transferred, assigned and reconveyed to the respective Parties to the
Subject Agreements that allegedly assigned and/or transferred such items under
the terms of the Subject Agreements, and that each Party shall be returned to its same
position as immediately prior the Oral Agreement and execution
of the Subject Agreements.
3. Repayment of the Coach Payment. TCP agrees to convey to
Coach a sufficient number of ChinaTel Shares equal to the amount of the Coach
Payment, calculated at a price per share equal to the volume-weighted average of
the closing price of the ChinaTel Shares on the Over The Counter Bulletin Board
quotation system for the ten (10) day period preceding the Execution
Date. TCP shall deliver a stock certificate representing the ChinaTel
Shares to LPI’s legal counsel, Greenberg Traurig LLP (Attn: Mark Lee), 1201 K
Street, Suite 1100, Sacramento California 95814 as soon as reasonably possible
following receipt by TCP of the ChinaTel Shares from the stock transfer agent of
China Tel Group, Inc. , but in no event later than ten (10) business days
subsequent to the Execution Date.
4. Representations of Trussnet Cayman and
TCP. TCP and Trussnet Cayman represent and warrant that, based
upon the records shown to them by Holladay Stock Transfer, Inc., Trussnet Cayman
reportedly owns all right, title and interest in the LPI Shares, provided, however, at no time prior to the date
of
this Agreement did either TCP or Trussnet Cayman receive a stock
certificate representing the LPI
Shares. They also represent and warrant that, to the best of their
knowledge, the LPI Shares are free and clear of any liens, encumbrances, claims
or judgments of any kind whatsoever, that they never placed any liens,
encumbrances, claims or judgments of any kind whatsoever on the LPI Shares, and
that they have all necessary power and authority to enter into and execute this
Agreement and sign whatever document is required to relinquish any ownership
claim or right to the LPI Shares.
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5. Representations of LPI and Coach. LPI
and Coach represent and warrant that, to the best of their knowledge, there are
no liens, encumbrances, claims or judgments of any kind whatsoever on or against
the Subject Agreements and that they never placed any liens, encumbrances,
claims or judgments of any kind whatsoever on the Subject
Agreements. LPI and Coach also represent and warrant that they have
not transferred any right, title and interest in and to any of the Subject
Agreements, and that they has all necessary power and authority to enter into
and execute this Agreement, rescind the Subject Agreements and otherwise
consummate the transactions contemplated by this Agreement.
6. Releases. LPI and
Coach, and their respective officers, directors, agents, representatives, and
employees hereby release, acquit, and discharge TCP and Trussnet Cayman, and
each of their respective officers, directors, agents, representatives, attorneys
and employees, of and from any and all actual or potential liabilities, demands,
causes of action, costs, expenses, attorney fees, damages, indemnities and
obligations of every kind and nature, at law, in equity, or otherwise, known and
unknown, suspected and unsuspected, disclosed and undisclosed, including,
without limitation, any and all actual and potential liabilities which the
Parties now have or ever had against each other from the beginning of time to
the date of this Agreement, arising out of or in any way related to the
Subject Agreements, the LPI Shares, the LPI Controlling Shares and the
underlying facts and circumstances asserted in this Agreement
(collectively, “Claims”); provided, however, that, any obligations created by or
set forth in this Agreement shall not be released.
LPI and
Coach, and each of them, represent, warrant and agree that they have been fully
advised by their respective attorneys regarding the contents of Section 1542 of
the Civil Code of California (“Section 1542”). Section 1542 reads as
follows:
A
general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the
debtor.
LPI and
Coach expressly waive and relinquish all rights and benefits under Section 1542
and any similar statutory or common law principal of similar effect in each and
every jurisdiction with respect to the Claims released pursuant to this
Agreement.
7. Indemnification.
7.1 By LPI and
Coach. LPI and Coach shall, jointly and severally, indemnify
and hold TCP and Trussnet Cayman, and their respective officers,
directors, agents, representatives, attorneys and employees harmless
from and against any and all claims, demands, causes of action, losses, costs
(including, without limitation, court costs and reasonable attorneys' fees),
liabilities or damages of any kind or nature whatsoever that TCP or Trussnet
Cayman may sustain by reason of the material breach by LPI and/or Coach or
non-fulfillment (whether by action or inaction), at any time, of any
representation, covenant or obligation under this Agreement and any and all
business or other activities conducted by LPI and Coach from the beginning of
time.
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7.2 By TCP and Trussnet
Cayman. TCP and Trussnet Cayman shall, jointly and severally,
indemnify and hold LPI and Coach, and their respective officers, directors,
agents, representatives, attorneys and employees harmless from and against any and all claims, demands, causes
of action, losses, costs (including, without limitation, court costs and
reasonable attorneys' fees), liabilities or damages of any kind or nature
whatsoever that LPI and/or Coach may sustain by reason of the material breach by
TCP and/or Trussnet Cayman or non-fulfillment (whether by action or inaction),
at any time, of any of their representations, covenants or obligations under
this Agreement
8. Confidentiality and No Communications
with Identified Third
Parties. The Parties, and each of them, agree that the terms
and conditions of this Agreement are confidential. No Party to this
Agreement shall make any public or private statement about or disclosure of the
terms and conditions of this Agreement, unless: (i) required in or by filings
made with the United States Securities and Exchange Commission, by law, judicial
order, or any listing agreement with a national securities exchange or
over-the-counter trading system to which any of the Parties is a party thereto;
(ii) expressly authorized to do so by the other Party, whose authorization shall
not be unreasonably withheld; or (iii) necessary to the performance of
professional services by that Party's attorneys or accountants. In
addition, neither LPI nor Coach, and their respective officers, directors,
agents, representatives, attorneys and employees, shall henceforth never have
any further communications of any kind or nature, whether written or oral, with:
(i) Jumbo Power Technology Ltd.; and (ii) Liao, Pheng-Piao, and their respective
officers, directors, agents, representatives, attorneys and
employees.
9. Assignment. LPI and
Coach, and each of them, warrant and represent that there has not been, and
there will not be, any assignment or transfer of any interest in any of the
Claims released pursuant to this Agreement, and LPI and Coach, and each of them,
agree to indemnify and hold TCP and Trussnet Cayman harmless from any liability,
claims, demands, damages, costs, expenses, and attorney fees by either of them
as a result of any person asserting such assignment or transfer of any rights or
claims released pursuant to this Agreement. This Agreement shall bind
the heirs, personal representatives, successors and assigns of each of the
Parties and shall inure to the benefit of each of the Parties, their agents,
directors, officers, employees, attorneys, successors, and assigns.
10. Expenses. Each
Party shall bear its costs, expenses, and attorney fees, whether taxable or
otherwise incurred in, or arising out of, or in any way related to the matters
released, including, without limitation, costs, expenses, attorney fees and
taxes incurred in, or arising out of, or related to, the subject matter of this
Agreement.
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11. Governing Law and
Jurisdiction. This Agreement shall be governed by the laws of
the State of California, without regard to its conflict of law
principles. Any action to enforce the provisions of this Agreement
shall be brought within the State of California in the Federal District
Court in San Diego County or the California Superior Court of the County
of San Diego.
12. Miscellaneous.
12.1 No Drafting Inferences. This
Agreement shall be construed without regard to the Party or Parties responsible
for its preparation and shall be deemed to have been prepared jointly by the
Parties.
12.2 Headings. All
headings in this Agreement are included solely for convenient reference and
shall not affect its interpretation.
12.3
Severability. If any provision of this Agreement is determined
by a court of competent jurisdiction to be unenforceable as drafted, that
provision shall be construed in a manner designed to effectuate its purpose to
the greatest extent possible under applicable law, and the enforceability of
other provisions shall not be affected.
12.4 Entire Agreement;
Amendments. This Agreement supersedes any prior and
contemporaneous agreements, whether oral or written, between the Parties
relating to the subject matter of this Agreement, and any other written or oral
agreement relating to the subject matter of this Agreement are expressly
canceled. Any amendment to this Agreement shall be effective only by
a writing signed by the Parties.
12.5 No
Waivers. The waiver of one breach or default or any delay in
exercising any rights will not constitute a waiver of any subsequent breach or
default. No consent, waiver, or excuse by any Party, express or
implied, unless in writing, shall constitute a subsequent consent, waiver or
excuse.
12.6 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original copy of this Agreement and all of which, when taken
together, shall be deemed to constitute one and the same Agreement,
12.7 Attorney’s
Fees. Should any Party hereto bring an action or proceeding
for the purpose of enforcing this Agreement, then, in such an event, the
prevailing Party shall be entitled to be reimbursed by the losing Party for all
reasonable costs and expenses incurred as a result thereof, including, but not
limited to, reasonable attorney fees.
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BY
SIGNING BELOW, I REPRESENT THAT I HAVE AUTHORITY TO EXECUTE THIS AGREEMENT ON
BEHALF OF THE PARTY INDICATED ABOVE MY NAME, AND I REPRESENT THAT I HAVE READ,
UNDERSTAND AND AGREE TO ALL OF THE TERMS SET FORTH IN THIS
AGREEMENT.
| Trussnet Capital Partners (HK) Ltd. |
LED
Power, Inc.
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| By: |
/s/
Colin Tay
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By: |
/s/ John
J. Lennon
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Colin
Tay, Director
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John
J. Lennon, President
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Trussnet
Capital Partners (Cayman) Ltd.
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Coach
Capital, LLC
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| By: |
/s/
Colin Tay
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By: |
/s/
Richard Smith
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Colin
Tay, Director
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Richard
Smith, Director
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