RESCISSION AGREEMENT
Exhibit
10.1
This
RESCISSION
AGREEMENT
(this
“Rescission
Agreement”) dated
as
of the 13th
day of
December, 2005 is entered into by and between Xxxxxx Health and Media, Inc.,
a
Delaware corporation (f/k/a “Xxxxxx Center, LLC”) (the “Company”),
Xxxxxx Center, Inc., a Delaware corporation and 100% corporate parent of the
Company (“Parent”),
and
[NAME OF DIRECTOR], an individual (the “Director”).
RECITALS
WHEREAS,
the
Director is a member of the Company’s Board of Directors;
WHEREAS,
in
connection with the Director’s service on the Board of Directors of the Company,
which, at the time of appointment, was known as Xxxxxx Center, LLC, the Director
and the Company entered into that certain Restricted Units Agreement (the
“Agreement”)
dated
May 17, 2004 pursuant to which the Director received 30,000 Common Units
(“Common
Units”)
in
Xxxxxx Center, LLC;
WHEREAS,
5,000
of the Common Units vested in 2004 (the “2004
Common Units”)
and
the remaining 25,000 Common Units vested in 2005 (the “2005
Common Units”);
WHEREAS,
the
2004 Common Units were exchanged and converted into Twenty Six Thousand, One
Hundred Eighty Six (26,186) shares of Common Stock of the Parent (the
“2004
Shares”)
and
the 2005 Common Units were exchanged and converted into One Hundred Thirty
Thousand, Nine Hundred Thirty Nine (130,929) shares of Common Stock of the
Parent (the “2005
Shares”)
in
connection with the reverse merger effected by, among other parties, the Parent
and the Company on June 16, 2005 (the “Merger”);
and
WHEREAS,
the
Company and Director desire to rescind, cancel, and void the grant of the 2005
Common Units and release each other from all obligations with respect thereto
and that each party be returned to the position it would have been in had the
2005 Common Units not been issued.
NOW,
THEREFORE,
in
consideration of the foregoing, and other good and valuable consideration,
the
receipt and sufficiency of which is acknowledged, and intending to be legally
bound hereby, the parties hereto agree as follows:
1. Rescission
of the 2005 Common Units.
The
transactions contemplated by the Agreement with respect to the grant of the
2005
Common Units, including, without limitation, all rights and obligations related
thereto and to the 2005 Shares, are hereby fully rescinded ab
initio.
Upon
execution of this Rescission Agreement, all rights and obligations of the
Company and the Director under the Agreement with respect to the grant of the
2005 Common Units, and all rights and obligations regarding the 2005 Common
Units and the 2005 Shares shall be extinguished, canceled and voided, and each
of the Company and Director shall be returned to the position each of them
would
have been in had the Agreement (as it pertains to the grant of the 2005 Common
Units) not been executed.
2. Irrevocable
Cancellation of the 2005 Shares.
The
Director’s 2005 Shares shall be irrevocably canceled by the Parent upon the
execution of this Rescission Agreement, and no new 2005 Shares or any securities
or other interests shall be granted to the Director in connection with this
Rescission Agreement, and no obligation of the Company or the Parent to issue
any securities or other interest to the Director shall be created in connection
with or as a result of the execution of this Rescission Agreement.
3. Mutual
General Release; Termination and Settlement
(a) Upon
the
date hereof, other than the duties and obligations created by this Rescission
Agreement, each of the parties to this Rescission Agreement fully and completely
releases and discharges the other parties from any and all claims, causes of
action, demands or liability of any and every character, known or unknown,
contingent or matured, that a party may have had against any other party that
relate to or arise from the subject matter of the Agreement as it relates to
the
grant of the 2005 Common Units, the 2005 Common Units and the 2005 Shares.
Each
party agrees not to initiate a lawsuit or bring a claim of any kind against
the
other party, in any court, or otherwise, relating to the these matters,
including, but not limited to, any claim under any common law, whether in law
or
equity, or federal, state or local statute, ordinance or rule of law.
(b) Section
1542 of the California Civil Code 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.
As
to the
claims that are released by this Section 3, each of the parties waives all
rights under this statute, and any similar statute, law or policy.
4. Governing
Law.
This
Rescission Agreement shall be governed by, and construed in accordance with,
the
laws of the State of Delaware in the United States of America. Each party,
to
the extent permitted by law, knowingly voluntarily and intentionally waives
its
right to trial by jury in any action or other legal proceeding arising out
of or
relating to this Rescission Agreement and the transactions contemplated
hereby.
5. Final
Agreements.
This
Rescission Agreement is intended by the parities hereto to be the final,
complete, and exclusive expression of the agreement between them. This
Rescission Agreement supersedes any and all prior oral or written agreements
relating to the subject matter hereof. No modification, rescission, waiver,
release, or amendment of any provision of this Agreement shall be
made.
6. Counterparts.
This
Rescission Agreement may be entered into in any number of counterparts and
by
the parties to it on separate counterparts, each of which when executed and
delivered shall be an original, but all the counterparts together shall
constitute one and the same document. This Rescission Agreement may be validly
exchanged and executed by fax.
[SIGNATURE
PAGE TO FOLLOW]
2
IN
WITNESS WHEREOF, the parties have executed this Rescission Agreement as of
the
date set forth above.
| DIRECTOR | |||
| |
|
|
|
| By: | /s/ | ||
| Name: | [NAME OF DIRECTOR] | ||
| XXXXXX HEALTH AND MEDIA, INC. | |||
| |
|
|
|
| By: | /s/ Xxxxxx Xxxxxxx | ||
| Xxxxxx
Xxxxxxx
Chief
Executive Officer
|
|||
| XXXXXX CENTER, INC. | |||
| |
|
|
|
| By: | /s/ Xxxxxx Xxxxxxx | ||
| Xxxxxx
Xxxxxxx
Chief
Executive Officer
|
|||
3
