MUTUAL RELEASE AND SETTLEMENT AGREEMENT
Exhibit 10.1
THIS
MUTUAL RELEASE AND SETTLEMENT AGREEMENT ("Agreement") is made
and entered into this 11th day of February, 2011, between First China
Pharmaceutical Group, Inc., a Nevada corporation (the "Company"), and Xx.
Xxxxx Xxxxxx, an individual ("Hwuang") (sometimes
referred to herein individually as “Party” and
collectively as the “Parties”).
Recitals
A. WHEREAS,
Hwuang has served as a member of the Company’s Board of Directors since his
appointment on June 7, 2010, and
B. WHEREAS,
the Parties desire to fully and finally discontinue their relationship with one
another, and the Company is willing to pay US $150,000.00 to Hwuang in exchange
for entering into this Agreement.
Agreement
NOW, THEREFORE, in
consideration of the mutual covenants and agreements herein made, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. Effective
as of the date hereof, Hwuang does hereby resign as a member of the Company’s
Board of Directors and any and all other positions with the Company or any of
its subsidiaries or affiliates. The Company hereby accepts Hwuang’s
resignation.
2. Subject
to the terms and conditions of this Agreement, including the Company’s payment
of US $150,000.00 to Hwuang, the receipt and sufficiency of which is hereby
acknowledged and accepted, Hwuang agrees (on his own behalf and on behalf of
each of his affiliates) to and does hereby release and forever discharge the
Company and its affiliates, officers, directors, shareholders and successors in
interest of and from any and all claims, demands, rights, liabilities, and
causes of action relating to any matters of any kind, whether presently known or
unknown, suspected or unsuspected, which Hwuang may now have, has ever had, or
may hereafter have against the Company or its affiliates arising
contemporaneously with or prior to the date hereof or arising out of any
omissions, acts, or facts which have occurred up until the date hereof and
whether or not relating to claims pending on, or asserted after, the date
hereof.
3. Subject
to the terms and conditions of this Agreement, the Company agrees (on its own
behalf and on behalf of each of its affiliates) to and does hereby release and
forever discharge Hwuang and his affiliates and successors in interest of and
from any and all claims, demands, rights, liabilities, and causes of action
relating to any matters of any kind, whether presently known or unknown,
suspected or unsuspected, which the Company may now have, has ever had, or may
hereafter have against Hwuang or his affiliates arising contemporaneously with
or prior to the date hereof or arising out of any omissions, acts, or facts
which have occurred up until the date hereof and whether or not relating to
claims pending on, or asserted after, the date hereof.
4. Subject
to the terms and conditions of this Agreement, including the Company’s payment
of US $150,000.00 to Hwuang before February 19, 2011, the Parties irrevocably
covenant to refrain from directly or indirectly asserting any claim or demand,
or commencing, instituting, or causing to be commenced, any proceeding of any
kind against the other Party, based upon any matter released
hereby.
5. Without
in any way limiting any of the rights and remedies otherwise available the other
Party, each Party (each an "Indemnifying Party")
shall indemnify and hold harmless each of the other parties hereto from and
against all loss, liability, claim, damage, or expense (including costs of
investigation and defense and reasonable attorneys' fees), whether or not
involving third party claims, arising directly or indirectly from or in
connection with (a) the assertion by or on behalf of such Indemnifying Party (or
any affiliate, assignee or successor of such Indemnifying Party) of any claim or
other matter released by such Indemnifying Party pursuant to this Agreement, and
(b) the assertion by any third party of any claim or demand against any other
party hereto which claim or demand arises directly or indirectly from, or in
connection with, any assertion by or on behalf of such Indemnifying Party (or
any affiliate, assignee or successor of such Indemnifying Party) against such
third party of any claims or other matters released pursuant to this
Agreement.
6. The
Parties understand that future claims, demands, rights, liabilities, and causes
of action released under Sections 2 and 3 above, which
presently are unknown, unforeseen, or not yet in existence may occur and
consciously intend to release all such claims.
7. The
Parties represent and warrant that they have made no and shall not make any
assignment, transfer, conveyance, pledge, or other disposition of any of the
claims, demands, causes of action, obligations, damages, or liabilities released
under Sections
2 and 3
above, and that they are fully entitled to give its or his full and complete
release of all such claims and demands.
8. The
Parties agree and understand that once this Agreement becomes effective, it
cannot be revoked, and no Party can proceed against the other Party on account
of any of the claims released herein. The Parties further agree and
understand that any Party defending an action or claim commenced, maintained, or
prosecuted in violation of this Agreement will be entitled to recover from the
Party bringing the action or claim any damages or costs, including reasonable
attorneys' fees and costs, incurred in defending the action or
claim.
9. The
Parties represent and warrant that (a) each has read and understands the terms
of the Agreement, (b) each has the full power and authority to execute and
deliver this Agreement and to perform and carry out all covenants and
obligations to be performed and carried out by them hereunder, (c) each has duly
taken all required actions to authorize the execution of this Agreement and the
performance of the other obligations to be performed by each of them hereunder,
(d) this Agreement constitutes a legal, valid, and binding obligation of the
Parties, enforceable against such party in accordance with its terms, and (e)
each has entered into this Agreement voluntarily and for reasons of their own
and not based upon the representations of the other party hereto except as
contained in this Agreement.
10. The
Parties shall (i) take all actions necessary to comply promptly with all
requirements which may be imposed on them with respect to the consummation of
the transactions contemplated by this Agreement, and (ii) take all actions
necessary to obtain (and shall cooperate with the other Party in obtaining) any
consent, signature, approval, order or authorization of, or any registration,
declaration or filing with, any governmental entity, required to be obtained or
made in connection with the taking of any action contemplated by this
Agreement.
11. The
Parties hereby covenant and agree that they will not, directly or indirectly,
(a) disparage the other party; or (b) disseminate, or cause or permit
others to disseminate, negative statements regarding the other
party. The Parties further agree to caution their respective
affiliates and successors in interest to refrain from any disparaging remarks or
conduct.
12. For
a period of 12 months from the date of execution of this Agreement, Hwuang
agrees not to (i) directly or indirectly contact any officer, director
or affiliate of the Company or any of its subsidiaries for any
matters relating to the Company, (ii) directly or indirectly contact any
employee, consultant, or advisor of the Company or any of its subsidiaries as
provided in writing to Hwuang as of the date of this Agreement for any matters
relating to the Company, and (iii) discuss any matters relating to the Company
with any regulatory authority governing the Company or any of its subsidiaries
without first providing written notice to the Company and affording the Company
a reasonable time period to file a protective order in the relevant court and
jurisdiction.
13. This
Agreement and any dispute arising hereunder shall be interpreted, enforced, and
governed under the laws of Hong Kong.
14. Hwuang
recognizes that if he violates his obligations or covenants under this
Agreement, irreparable damage will result to the Company that cannot be remedied
by monetary damages. As a result, Hwuang hereby agrees that, in the
event of any such breach by him, or in the event of apparent danger of such
breach, the Company shall be entitled to an injunction to restrain the violation
of any and all portions of this Agreement by Hwuang, in addition to any other
legal remedy available to the Company, and to the recovery of reasonable
attorneys' fees which may be incurred in enforcing the provisions of this
Agreement.
15. This
Agreement shall be interpreted to be effective and valid under applicable law,
but if any provision shall be held to be prohibited or invalid, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the other remaining
provisions of this Agreement.
16. This
Agreement shall be binding upon and inure to the benefit of each of the
affiliates, officers, directors, shareholders and successors in interest of each
Party. The Parties may not assign or transfer their rights or
obligations under this Agreement without the prior written consent of the other
Party, and any attempted assignment or transfer without such consent shall be
void.
17. The
Parties hereto acknowledge and agree that nothing in this Agreement is meant to
suggest that any party has violated any law or that any Party has any claim
against the other Party.
18. The
Parties hereto understand and agree that this Agreement supersedes and displaces
any prior agreements made among the Parties relating to its subject
matter. There are no other understandings or agreements between them
with respect to such subject matter. This Agreement may be amended
only by written instruments designated as amendments to this Agreement and
executed by the signatories or their successors.
19. This
Agreement and all obligations and rights contained herein shall become effective
immediately upon the time when both Parties herein execute this Agreement and
Hwuang or his designated account has received the fund as indicated in Section 2
hereinabove.
20. This
Agreement may be executed in one or more counterparts, each of which shall
constitute a duplicate original.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
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a
Nevada corporation
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By:
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/s/ Zhen Xxxxx Xxxx
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Name:
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Zhen Xxxxx Xxxx
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Title:
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Chairman and Chief Executive
Officer
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XXXXX
XXXXXX
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/s/ Xxxxx Xxxxxx
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