EXHIBIT 10.1
MUTUAL RESCISSION AGREEMENT
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This Mutual Rescission Agreement (the "Agreement") is made and entered
into as of this 31st day of December, 2003, among Xenicent, Inc., a North
Carolina corporation ("XCNT"), Mr. Xxxxx Xxxxxxx, the majority shareholder of
XCNT ("Xxxxxxx"), Giantek Technology Corporation, a Taiwanese corporation
("GTC"), and Xxxxx Xxxx and Xxxxx Xxx, formerly the majority shareholders of GTC
(the "Shareholders").
WHEREAS, pursuant to Section 1 of that certain Share Exchange Agreement,
dated June 27, 2002 (the "Share Exchange Agreement"), among XCNT, Xxxxxxx, GTC
and the Shareholders, XCNT issued 550,000 shares of its common stock (the "XCNT
Shares") to the Shareholders in exchange for the transfer by the Shareholders to
XCNT of shares of GTC common stock (the "GTC Shares") owned by the Shareholders,
representing sixty percent (60%) of GTC's issued and outstanding shares on a
fully diluted basis;
WHEREAS, the XCNT Shares and the GTC Shares were to be held in a mutually
agreed upon escrow account for a period of 24 months pursuant to the terms of
the Share Exchange Agreement;
WHEREAS, XCNT, Xxxxxxx, GTC and the Shareholders terminated the Share
Exchange Agreement pursuant to discussions that were confirmed by a letter dated
December 21, 2003 (the "Termination Letter"), to be effective as of December 31,
2003, and the parties have rescinded their reciprocal investments in XCNT and
GTC pursuant to the unwind provisions of Section 4.3 of the Share Exchange
Agreement;
WHEREAS, as contemplated by the Termination Letter, XCNT, Xxxxxxx, GTC and
the Shareholders now desire to set forth the terms of their mutual rescission of
shares of XCNT and GTC, and otherwise release and hold each other harmless with
respect to the obligations under the Share Exchange Agreement, as amended.
NOW, THEREFORE, in consideration of the promises, and the mutual covenants
and agreements, XCNT, Xxxxxxx, GTC and the Shareholders agree as follows:
1. Mutual Rescission of the Share Exchange Agreement.
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The parties hereto agree that the Share Exchange Agreement, as amended, is
hereby rescinded in all respects, and each party is to be put back in the
position that they were in prior to its execution, with the exception that funds
expended for transaction costs shall not be refunded to any party.
2. Unwind and Exchange of the XCNT Shares and GTC Shares.
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XCNT shall sign and return the GTC Shares to the Shareholders, and the
Shareholders shall sign and return 400,000 of the XCNT Shares to XCNT. Each
party agrees to instruct the escrow agent holding such shares to effect such
transfer.
3. Return by the Shareholders of ABC Realty Co. Share Dividend
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The Shareholders hereby transfer to XCNT all share certificates representing
shares of ABC Realty Co.
4. Release from Liability.
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Each of the parties hereto, for themselves, and their successors, assigns and
agents do hereby fully and completely mutually release each other and all
related parties from any and all liabilities of any kind, whether known or
unknown, which now exist or may exist arising out of the Share Exchange
Agreement, or any amendment thereto.
5. Indemnification by GTC and the Shareholders.
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GTC and the Shareholders, jointly and severally, will hold harmless XCNT and its
related parties, including Xxxxxxx, from all claims that may arise from a breach
of this Agreement.
6. Indemnification by XCNT and Xxxxxxx.
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XCNT and Xxxxxxx, jointly and severally, will hold harmless GTC and its related
parties, including the Shareholders, from all claims that may arise from a
breach of this Agreement.
7. Further Assurances.
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The parties hereto shall separate their interests and use their good faith
efforts to effect the rescission contemplated herein without dispute.
8. Other.
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This Agreement (i) shall be governed and construed in accordance with the laws
of the State of North Carolina.; and (ii) may be executed in one or more
counterparts, each of which when put together with the others shall constitute
one and the same agreement.
IN WITNESS WHEREOF, the parties have signed this Mutual Rescission Agreement as
of the date first written above.
XENICENT, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
(As President and in his
Individual Capacity)
GIANTEK TECHNOLOGY CORPORATION
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx
(As President and in his
Individual Capacity)
GIANTEK TECHNOLOGY CORPORATION
By: /s/ Xxxxx Xxx
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Xxxxx Xxx
(As Special Assistant and in her
Individual Capacity)
