DEBT REPAYMENT AND SET-OFF AGREEMENT
Exhibit
10.8
This DEBT
REPAYMENT AND SET-OFF AGREEMENT (this “Agreement”), dated
and effective as of November 28, 2008, is entered into by and among (i) NIVS
IntelliMedia Technology Group, Inc., a Delaware corporation (“NIVS USA”),
Niveous Holding Company Limited, a British Virgin Islands corporation
(“NIVS BVI”), NIVS
(HZ) Audio & Video Tech Company Limited (“NIVS PRC”), NIVS
International (H.K.) Limited (“NIVS HK”), and
NIVS (HZ) Audio & Video Tech Company Limited Shenzhen Branch (“NIVS
Shenzhen”); (ii)
Tianfu Li, NIVS USA’s Chief
Executive Officer and Chairman of the Board, an
individual residing in the People’s Republic of China (“PRC”) and
holder of PRC identity card no. 000000000000000000; and (iii) each of NIVS
Investment (SZ) Co., Ltd., Zhongkena Technology Development, Xentsan Technology
(SZ) Co., Ltd., Korea Hyundai Light & Electric (Int’l) Holding, NIVS
Information & Technology (HZ) Co., Ltd., and Hyundai Light & Electric
(HZ) Co., Ltd. (collectively, the “Related
Companies”). For
purposes of this Agreement, all currency amounts have been converted into US
Dollars.
RECITALS
WHEREAS,
NIVS USA, NIVS BVI, and all of the shareholders of NIVS BVI (the “Shareholders”)
completed a share exchange transaction (the “Share
Exchange”)
in accordance with that certain share exchange agreement dated June 27, 2008, as
amended on July 25, 2008 (the “Share Exchange
Agreement”),
pursuant to which NIVS USA became the direct and/or indirect parent of each of
NIVS BVI, NIVS PRC, NIVS HK, and NIVS Shenzhen (the “Subsidiaries”);
WHEREAS,
NIVS USA and the Subsidiaries (collectively, the “NIVS
Group”)
became subject to certain U.S. federal securities laws upon the closing of the
Share Exchange, including, but not limited to, the Sarbanes-Oxely Act of
2002;
WHEREAS,
the Related Companies are owned and/or controlled by Xx. Xx, except for Korea
Hyundai Light & Electric (Int’l) Holding which is owned by Xx. Xxx Xxxxx
Ying;
WHEREAS,
the NIVS Group, from time to time, has entered into loan transactions with Xx.
Xx and the Related Companies pursuant to which the NIVS Group borrowed funds
from Xx. Xx and the NIVS Group lent funds to the Related Companies (the
“Loan
Transactions”);
WHEREAS,
the loans involved in the Loan Transactions were unsecured with no fixed
repayment date;
WHEREAS,
as of the date of this Agreement, the NIVS Group has outstanding loan amounts of
US$9,133,637 owed to Xx. Xx (the “Li Debt”)
and US$568,063 owed to NIVS Investment (SZ) Co., Ltd. (the “NIVS Investment
Debt”),
and Xx. Xx, through the Related Companies, has an aggregate outstanding loan
amount of US$1,878,101 owed to the NIVS Group (the “Related Companies’
Debt”),
in such amounts and between such parities as set forth in Appendix
A;
WHEREAS,
the parties
to this Agreement desire
to have the Related Companies’ Debt repaid in full and/or set off in full
against the NIVS Investment Debt, in totality, and the Li Debt, partially, such
that, after giving effect to the transactions contemplated by this Agreement,
the Related Companies’ Debt will no longer be outstanding, the NIVS Investment
Debt will be reduced to zero, and neither Xx. Xx nor any of the Related
Companies will owe to the NIVS Group any loan amount; and
WHEREAS,
the parties to this Agreement desire to acknowledge that, at any time after this
Agreement, no loan, extension of credit in the form of a loan, or similar
arrangement will be made by the NIVS Group to Xx. Xx, any other executive
officer or director, or any related family member, of the NIVS Group, or any
entity owned or controlled by such persons, including the Related Companies, in
the future.
1
NOW,
THEREFORE, in consideration of the respective representations, warranties,
covenants and agreements set forth in this Agreement, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as
follows:
AGREEMENT
1. Debt Repayment and
Set-Off.
a. Xx. Xx
and the Related Companies hereby repay and set off the Related Companies’ Debt
in full, as set forth in Appendix
A, such
that the Related Companies’ Debt is hereby fully repaid and extinguished in its
entirety and neither Xx. Xx nor any of the Related Companies owes any
outstanding loan amount to the
NIVS Group. The NIVS
Group hereby agrees and acknowledges the foregoing repayment and set-off.
b. The
NIVS Group hereby
sets off an
aggregate amount of US$1,878,101
(the “Repayment
Amount”)
of the
NIVS
Investment Debt, in totality, and the Li Debt, partially, as set forth in
Appendix
A, such
that the Li Debt remaining after deducting the Repayment Amount is equal to an
aggregate amount of US$7,823,599 (the “Remaining
Debt”). The
Repayment Amount is hereby fully repaid and extinguished in its entirety, and
the NIVS Group does not owe any loan amount to Xx.
Xx or any of the Related Companies other
than the Remaining Debt. Xx. Xx and the Related Companies hereby agree and
acknowledge the foregoing set-off.
2. Acknowledgement of No
Remaining Debt Obligation to the NIVS Group. The
parties
to this Agreement hereby
acknowledge that after the transactions contemplated by this Agreement (i)
neither Xx. Xx nor any other executive officer or director, or any related
family member, of NIVS USA owes, either directly or indirectly, the NIVS Group
any amount of debt obligation, (ii) no entity owned or controlled by Xx. Xx,
including the Related Companies, owes to the NIVS Group any amount of funds or
debt obligation, either directly or indirectly, (iii) no amount of credit
remains extended or maintained in the form of a loan from the NIVS Group to Xx.
Xx, any other executive officer or director, or any related family member, of
the NIVS Group, or any entity owned or controlled by such persons, including the
Related Companies, (iv) any amount of funds or debt obligation previously owed
to the NIVS Group prior to the date of this Agreement, either directly or
indirectly, by Xx. Xx, any other executive officer or director, or any related
family member, of the NIVS Group, or any entity owned or controlled by Xx. Xx,
including the Related Companies, has been repaid to the NIVS Group in full, and
(v) at any time after this Agreement, no loan, extension of credit in the form
of a loan, or similar arrangement will be made by the NIVS Group to Xx. Xx, any
other executive officer or director, or any related family member, of the NIVS
Group, or any entity owned or controlled by such persons, including the Related
Companies, in the future.
3. Miscellaneous. This
Agreement may be executed in any number of facsimile counterparts, each of which
shall be an original, but which together constitute one and the same instrument.
This Agreement may be executed and delivered by facsimile and will be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. The parties shall execute and deliver from time to time
hereafter, upon written request, all such further documents and instruments and
shall do and perform all such acts as may be reasonably necessary to give full
effect to the intent of this Agreement.
4. Governing
Law. This
Agreement and all actions arising out of or in connection with it shall be
governed by and construed in accordance with the laws of the State of
Delaware.
[SIGNATURE
PAGE FOLLOWS]
2
IN
WITNESS WHEREOF, the parties have entered into this Agreement as of the date
first set forth above.
|
NIVS IntelliMedia Technology
Group, Inc.
By: /s/ Tianfu
Li
Name: ________________________
Title: ________________________
Niveous Holding Company
Limited
By: /s/ Tianfu
Li
Name: ________________________
Title: ________________________
NIVS (HZ) Audio & Video
Tech Company Limited
By: /s/ Tianfu
Li
Name: ________________________
Title: ________________________
NIVS International (H.K.)
Limited
By: /s/ Tianfu
Li
Name: ________________________
Title: ________________________
NIVS (HZ) Audio & Video
Tech Company Limited Shenzhen Branch
By: /s/ Tianfu
Li
Name: ________________________
Title: ________________________
Tianfu Li
/s/ Tianfu
Li
Tianfu
Li
|
NIVS Investment (SZ) Co.,
Ltd.
By: /s/ Tianfu
Li
Name: ________________________
Title: ________________________
Zhongkena Technology
Development
By: /s/ Tianfu
Li
Name: ________________________
Title: ________________________
Xentsan Technology (SZ) Co.,
Ltd.
By: /s/ Tianfu
Li
Name: ________________________
Title: ________________________
Korea Hyundai Light &
Electric (Int’l) Holding
By: /s/ [ILLEGIBLE]
Name: ________________________
Title: ________________________
NIVS Information &
Technology (HZ) Co., Ltd.
By: /s/ [ILLEGIBLE]
Name: ________________________
Title: ________________________
Hyundai Light & Electric
(HZ) Co., Ltd.
By: /s/ [ILLEGIBLE]
Name: ________________________
Title: ________________________
|
3
APPENDIX A
LOAN AND REPAYMENT
INFORMATION
The
Related Companies’ Debt (amount owed by Xx. Xxxxxx Xx, through the Related
Companies, to the NIVS Group) is as set forth below and is as repaid in such
manner as set forth below (for purposes of this Agreement, all currency amounts
have been converted into US Dollars):
|
Related
Companies
|
Amounts owed by Related Company
to the NIVS Group
|
Amounts
Repaid
|
Method of
Repayment
|
Remaining Amount Outstanding
After Effect of this Agreement
|
||||
|
NIVS
Investment (SZ) Co., Ltd.
|
-
|
-
|
Set
off against the NIVS Investment Debt, in totality, and the Li Debt,
partially
|
$
-
|
||||
|
Zhongkena
Technology Development
|
$20,921
|
$20,921
|
Set
off against the NIVS Investment Debt, in totality, and the Li Debt,
partially
|
-
|
||||
|
Xentsan
Technology (SZ) Co., Ltd.
|
-
|
-
|
Set
off against the NIVS Investment Debt, in totality, and the Li Debt,
partially
|
-
|
||||
|
Korea
Hyundai Light & Electric (Int'l) Holding
|
1,849,865
|
1,849,865
|
Set
off against the NIVS Investment Debt, in totality, and the Li Debt,
partially
|
-
|
||||
|
NIVS
Information & Technology (HZ) Co., Ltd.
|
7,315
|
7,315
|
Set
off against the NIVS Investment Debt, in totality, and the Li Debt,
partially
|
-
|
||||
|
Hyundai
Light & Electric (HZ) Co., Ltd.
|
5,741,794
|
5,741,794
|
Repaid
in Cash
|
-
|
||||
|
Other
Entities Affiliated with Xx. Xx
|
-
|
-
|
n/a
|
-
|
||||
|
Total
amount owed by any Affiliated Party to NIVS Group after the effect of this
Agreement
|
-
|
The NIVS
Investment Debt (amount owed by the NIVS Group to NIVS Investment (SZ) Co.,
Ltd.) is US$568,063 and the Li Debt (amount owed by the NIVS Group to Xx. Xxxxxx
Xx) is US$9,133,637, and the NIVS Investment Debt, in totality, and the Li Debt,
partially, are set off as set forth below, in addition to the table above (for
purposes of this Agreement, all currency amounts have been converted into US
Dollars):
A-1
|
The
Li Debt
|
$9,133,637
|
||
|
The
NIVS Investment Debt
|
$568,063
|
||
|
Total
Amount of the Related Companies’ Debt Repaid via Set-Off Against the NIVS
Investment Debt, in totality, and the Li Debt, partially (see table
above)
|
$1,878,101
|
||
|
Amount
of the Related Companies’ Debt Repaid via Set-Off Against the NIVS
Investment Debt
|
$568,063
|
||
|
Total
Remaining Amount of NIVS Investment Debt
|
0
|
||
|
Amount
of the Related Companies’ Debt Repaid via Set-Off Against the Li
Debt
|
$1,310,038
|
||
|
The
NIVS Group’s Remaining Debt owed to Xx. Xxxxxx Xx after the Effect of this
Agreement
|
$7,823,599
|
A-2
