TERMINATION AND MUTUAL RELEASE AGREEMENT
Exhibit
99.3
This
TERMINATION AND MUTUAL RELEASE AGREEMENT (“Agreement”) is made and entered into
effective as of October 31, 2008, by and between CHINA
TEL GROUP, INC., a Nevada corporation (“CHTL”), and ASIA
SPECIAL SITUATION ACQUISITION CORPORATION, a Cayman Islands corporation
(“ASSAC”). CHTL and ASSAC shall be individually referred to as a
“Party” and collectively referred to herein as the “Parties”.
RECITALS
WHEREAS, the Parties have
entered into that certain Stock Purchase Agreement dated July 8, 2008 and
as amended and restated as of August 4, 2008 (collectively, the “Stock Purchase
Agreement”); and
WHEREAS,
the Parties have entered into that certain Agreement and Plan of Merger, dated
_______________ (the “Merger Agreement”); and
WHEREAS, the Parties desire to
terminate the Stock Purchase Agreement and to generally and mutually release
each other from any and all claims one may have against the other, in accordance
with the terms of this Agreement.
NOW, THEREFORE, for the
valuable consideration described herein, the adequacy of which is hereby
expressly acknowledged, the Parties hereto hereby agree as follows:
AGREEMENT
1. Termination
of Stock Purchase Agreement. The Parties
hereto hereby mutually agree that the Stock Purchase Agreement and the Merger
Agreement is hereby terminated. Neither Party shall be further obligated under
the Stock Purchase Agreement and/or the Merger Agreement and there is no further
expectation on the part of either Party that the other Party shall perform under
the terms of the Stock Purchase Agreement and/or the Merger
Agreement.
2. Release
by CHTL. Except for the
obligations created under this Agreement, CHTL hereby releases on its own behalf
and on behalf of all of its affiliated companies, predecessors, successors, and
assigns and any of its past or present officers, directors, employees, agents,
managers, members, partners, shareholders, principals, or representatives, ASSAC
and any of its predecessors, successors, and assigns and any of its
past or present officers, directors, employees, agents, managers, members,
partners, shareholders, principals, or representatives, from any and
all rights, claims, liabilities, demands, actions, proceedings, causes of
action, in law or in equity, by reason of any matter, event, cause or thing
whatsoever, including, but not limited to the obligations of ASSAC under the
Stock Purchase Agreement and/or the Merger Agreement.
3. Release
by ASSAC. Except for the
obligations created under this Agreement, ASSAC hereby releases on its own
behalf and on behalf of all of its predecessors, successors, and
assigns and any of its past or present officers, directors, employees, agents,
managers, members, partners, shareholders, principals, or representatives, CHTL
and any of its affiliated companies, predecessors, successors, and assigns and
any of its past or present officers, directors, employees, agents, managers,
members, partners, shareholders, principals, or representatives, from
any and all rights, claims, liabilities, demands, actions, proceedings, causes
of action, in law or in equity, by reason of any matter, event, cause or thing
whatsoever, including, but not limited to the obligations of CHTL under the
Stock Purchase Agreement and/or the Merger Agreement.
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4. Section
1542 Waiver. The Parties and
each of them expressly waive all rights and benefits under Section 1542 of the
California Civil Code, or any similar provision under any other applicable state
or federal law, which provides 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.”
Each
of the Parties acknowledges that they have been advised by their respective
attorneys concerning and are familiar with the above provisions of California
Civil Code Section 1542.
5. Entire
Agreement. This Agreement
constitutes the entire agreement and understanding between the Parties with
respect to the settlement and compromise of the matters set forth
herein. All prior and contemporaneous conversations, negotiations,
possible and/or alleged agreements, representations, covenants and warranties
between the parties hereto are merged herein. This Agreement may be
changed only with the mutual written consent of all Parties.
6. No
Admission. Nothing in this
Agreement is to be construed as an admission of wrongdoing or liability by any
Party hereto, as such wrongdoing or liability is expressly denied, and no
finding thereof has been made by any arbitrator, court or other tribunal. There
are no allegations on the part of either Party of any wrongdoing or liability
attributed to the actions or inactions of the other Party.
7. Acknowledgement
of Understanding and Legal Representation. Each Party hereto
acknowledges that it has been represented by competent legal counsel of its own
choosing, in connection with the negotiation, drafting, and execution of this
Agreement.
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Accordingly,
the language used in this Agreement will be deemed to be language chosen by all
Parties hereto to express their mutual intent, and no rule of strict
construction against any Party hereto will apply to any term or condition of
this Agreement. Each Party represents and warrants that it has read
and fully understands and agrees to all provisions contained herein, and that it
has entered into this Agreement voluntarily as its free act and
deed. Each of the undersigned Parties and their counsel has each
reviewed this Agreement, and the rule of construction to the effect that any
ambiguities are to be resolved against the drafting Party shall not be employed
in the interpretation of the Agreement. Each Party further represents
and warrants that its claims which are the subject of this Agreement have not
been alienated or assigned to any person or entity not a Party to this Agreement
and are not now nor ever have been at issue in any bankruptcy
proceedings.
8. Costs. Unless
expressly set forth herein, the Parties agree that each Party will bear its own
costs and attorneys’ fees with respect to this matter, including the costs and
fees associated with the preparation and execution of this
Agreement.
9. Severance. Any provision of
this Agreement that is prohibited or unenforceable shall be ineffective to the
extent of such prohibition or unenforceability only, without invalidating the
remaining provisions hereof.
10. Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall be deemed to be
one and the same instrument.
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11. Dispute
Resolution. In the event of a
dispute related to or arising from the terms of this Agreement, such dispute:
(i) shall be resolved before the American Arbitration Association in Orange
County, California; (ii) the prevailing Party shall be entitled to all attorneys
fees and costs and (iii) the Parties agree that this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of
California, without regard to choice of law principles.
12. Signatures. Each
Party represents and warrants that the person signing this Agreement on its
behalf is fully authorized and empowered to do so. Signatures
provided by facsimile shall be deemed original signatures and shall be binding
signatures in all respects.
[This
page intentionally left blank. Signature page to
follow.]
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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the date set forth at the
beginning of this Agreement.
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