MUTUAL RELEASE AND SETTLEMENT AGREEMENT
Exhibit
10.1
THIS
SETTLEMENT AGREEMENT (the “Agreement”) is made
and entered into as of the 29th day
of December, 2009, by and among Enable Growth Partners LP, Xxxxxx Diversified
Strategy Master Fund LLC, and Enable Opportunity Partners LP (collectively the
“Holders”) and
Guangzhou Global Telecom, Inc., a Florida corporation (referred to as the “Company”).
W I T N E
S S E T H:
WHEREAS,
the Holders are the record and beneficial owners of (i) certain convertible
debentures in the principal amount of $3,000,000 (the “Convertible
Debenture”) and (ii) common stock purchase warrants to purchase a total
of 156,097,534 shares of the Company’s common stock (the “Warrants”); all
issued pursuant to a transaction dated July 31, 2007 and amended on November 3,
2008, as described in greater detail under Form 8-K’s of the Company filed on
August 1, 2007 and November 5, 2008, respectively, with the Securities and
Exchange Commission including exhibits thereto (the “Transaction”);
WHEREAS,
the Holders are the record and beneficial owners of 32,704,376
restricted shares of the Company (the “Restricted
Shares”);
WHEREAS,
the Holders desire to cancel the Convertible Debenture, Warrants and Restricted
Shares in exchange for certain amount of payment and to release the Company from
any liabilities in connection therewith upon the terms and conditions
hereinafter set forth;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the parties hereto, intending to be legally bound, agree as
follows:
1. Payment by the
Company. As consideration for the cancellation of the Convertible
Debenture, Warrants and Restricted Shares, the Company shall pay to the Holders
an aggregate amount of US$1,300,000 (the “Payoff Amount”)
at the Closing (as defined below). Such payment shall be made in accordance to
the amounts and wire instructions for each
Holder attached hereto as Exhibit
A.
2. Delivery by the
Holders. On or before January 15, 2010, the Holders will deliver the
original Convertible Debenture and Warrants to Xxxxxx & Jaclin, LLP to be
held in esvrow pending receipt of the Payoff Amount by the Holders. Upon actual receipt of the
Payoff Amount, the instruments shall be cancelled and shall have no further
force or effect.
3. Closing. The Closing
of the transaction described in this Agreement shall take place on such date as
mutually determined by the parties hereto (the “Closing”), which is
expected to be on or before January 21, 2010, unless extended by mutual consent
of the parties hereto.
4. Conditional
Release.
(a) Upon actual receipt of the Payoff Amount, the
Holders hereby irrevocably and unconditionally release the Company and its past,
present and future officers, directors, agents, consultants, employees,
representatives, and insurers, as applicable, together with all successors and
assigns of any of the foregoing (collectively, the “Company Released Parties”),
of and from all claims, demands, actions, causes of action, rights of action,
contracts, controversies, covenants, obligations, agreements, damages,
penalties, interest, fees, expenses, costs, remedies, reckonings, extents,
responsibilities, liabilities, suits, and proceedings of whatsoever kind,
nature, or description, direct or indirect, vested or contingent, known or
unknown, suspected or unsuspected, in contract, tort, law, equity, or otherwise,
under the laws of any jurisdiction, that the Holders and their predecessors,
legal representatives, successors or assigns, ever had, now have, or hereafter
can, shall, or may have, against the Released Parties, including but not limited
to the Convertible Notes and Warrants, jointly or severally, for, upon, or by
reason of any matter, cause, or thing whatsoever through the date of this
Agreement.
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Upon actual receipt of the Payoff Amount, the Holders
agree that they will not pursue, file or assert or permit to be pursued, filed
or asserted any civil action, suit or legal proceeding seeking equitable or
monetary relief (nor will it seek or in any way obtain or accept any such relief
in any civil action, suit or legal proceeding) in connection with any matter
concerning its relationship with the Company and/or the Convertible Debentures
and/or the Warrants with respect to all of the claims released herein arising
through the date of execution of this Agreement (whether known or unknown to it
and including any continuing effects of any acts or practices prior to the date
of execution of this Agreement). Upon actual receipt of the Payoff Amount, the
Holders acknowledge that they are not entitled to any other payments or benefits
of any kind.
(b) The Company hereby irrevocably and unconditionally
release the Holders and its past, present and future officers, directors,
agents, consultants, employees, representatives, and insurers, as applicable,
together with all successors and assigns of any of the foregoing (collectively,
the “Holder
Released Parties”), of and from all claims,
demands, actions, causes of action, rights of action, contracts, controversies,
covenants, obligations, agreements, damages, penalties, interest, fees,
expenses, costs, remedies, reckonings, extents, responsibilities, liabilities,
suits, and proceedings of whatsoever kind, nature, or description, direct or
indirect, vested or contingent, known or unknown, suspected or unsuspected, in
contract, tort, law, equity, or otherwise, under the laws of any jurisdiction,
that the Company and their predecessors, legal representatives, successors or
assigns, ever had, now have, or hereafter can, shall, or may have, against the
Holder Released Parties, including but not limited to the Convertible Notes and
Warrants, jointly or severally, for, upon, or by reason of any matter, cause, or
thing whatsoever through the date of this Agreement.
The Company agrees that they will not pursue,
file or assert or permit to be pursued, filed or asserted any civil action, suit
or legal proceeding seeking equitable or monetary relief (nor will it seek or in
any way obtain or accept any such relief in any civil action, suit or legal
proceeding) in connection with any matter concerning its relationship with the
Company and/or the Convertible Debentures and/or the Warrants with respect to
all of the claims released herein arising through the date of execution of this
Agreement (whether known or unknown to it and including any continuing effects
of any acts or practices prior to the date of execution of this Agreement). The
Holders acknowledge that they are not entitled to any other payments or benefits
of any kind.
5. Representations, Warranties and
Covenants.
(a) Each
party has all necessary power and authority to execute, deliver and perform this
Agreement and to consummate the transactions provided for herein. The execution,
delivery and performance of this Agreement by each party does not and will not
violate any provision of any law, regulation or order, or conflict with or
result in the breach of, or constitute a default under, any material agreement
or instrument to which each party is a party or by which each party may be bound
or affected.
(b) Each
party hereby agrees to indemnify and defend the other parties and their
directors and officers and hold them harmless from and against any and all
liability, damage, cost or expense incurred on account of or arising out of the
actions of an indemnifying party for:
(i) Any breach of or inaccuracy in
representations, warranties or agreements herein;
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(ii) Any
action, suit or proceeding based on a claim that any of said representations,
warranties or agreements were inaccurate or misleading or otherwise cause for
obtaining damages or redress from an indemnifying party or any of its directors
or officers.
(c) The
representations, warranties and agreements contained in this Agreement shall be
binding on each party’s successors, assigns, heirs and legal representatives and
shall inure to the benefit of the respective successors and assigns of the other
parties.
6. Entire Agreement.
This Agreement constitutes the complete understanding between the parties hereto
with respect to the subject matter hereof, and no alteration, amendment or
modification of any of the terms and provisions hereof shall be valid unless
made pursuant to an instrument in writing signed by each party. This
Agreement supersedes and terminates any and all prior agreements or
understandings between the parties regarding the subject matter
hereof.
7. Fees and Costs. The
Holders and the Company shall each bear their own fees and costs incurred in
connection with this Agreement.
8. Binding Effect. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, personal representatives, executors, successors and
assigns.
9. Governing Law. This
Agreement has been made in and shall be construed and enforced in accordance
with the laws of the State of New York.
10. Survival of Representations
and Warranties. All representations and warranties made by the Holders
and the Company shall survive the Closing.
11. Jurisdiction and
Venue. Any claim or controversy arising out of or relating to the
interpretation, application or enforcement of any provision of this Agreement,
shall be submitted for resolution to a court of competent jurisdiction in New
York. The parties hereby consent to personal jurisdiction and venue
in New York.
12. Construction and
Severability. In the event any provision in this Agreement shall, for any
reason, be held to be invalid or unenforceable, this Agreement shall be
construed as though it did not contain such invalid or unenforceable provision,
and the rights and obligations of the parties hereto shall continue in full
force and effect and shall be construed and enforced in accordance with the
remaining provisions hereof.
13. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
14. Paragraph
Headings. The paragraph headings contained in this Agreement
are for convenience only and shall not affect in any manner the meaning or
interpretation of this Agreement.
15. Execution
Knowing and Voluntary. In
executing this Agreement, the parties severally acknowledge and represent that
each: (a) has fully and carefully read and considered this Agreement;
(b) has been or has had the opportunity to be fully apprised by its attorneys of
the legal effect and meaning of this document and all terms and conditions
hereof; (c) is executing this Agreement voluntarily, free from any influence,
coercion or duress of any kind.
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IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the
day and year first above written.
Holders:
ENABLE
GROWTH PARTNERS LP
By:
_______________________________________
Name:
Title
XXXXXX
DIVERSIFIED STRATEGY MASTER FUND LLC
By:
_______________________________________
Name:
Title
ENABLE
OPPORTUNITY PARTNERS LP
By:
_______________________________________
Name:
Title:
Company:
By:
_______________________________________
Name:
Yankuan Li
Title:
President and Chief Executive Officer
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Exhibit
A – Wire Instructions For Payoff Amount
|
Holder
|
Payoff Amount
|
Wire Instructions
|
|
Enable Growth Partners LP
|
$1,105,000
|
Bank:
Bank of New York
New York, NY
ABA
#:
02100018
A/C
Name:
Jeggeries & Company,
Inc.
Harborside
Financial Xxxxxx
Xxxxx XXX, Xxxxx 000
Xxxxxx Xxxx, XX 00000
A/C
#:
890-000-7001
Further
Credit to: Enable
Growth Partners LP
Further
Credit to #:
662-70205
|
|
Enable Opportunity Partners LP
|
$130,000
|
Bank:
Bank of New York
New York, NY
ABA
#:
02100018
A/C
Name:
Jeggeries & Company, Inc.
Harborside Financial Xxxxxx
Xxxxx XXX, Xxxxx 000
Xxxxxx Xxxx, XX 00000
A/C
#:
890-000-7001
Further
Credit to:
Enable Opportunity Partners
LP
Further
Credit to #:
662-70213
|
|
Xxxxxx Diversified Strategy Master Fund
LLC
|
$65,000
|
Bank:
Bank of New York
New York, NY
ABA
#:
02100018
A/C
Name:
Jeggeries & Company, Inc.
Harborside Financial Xxxxxx
Xxxxx XXX, Xxxxx 000
Xxxxxx Xxxx, XX 00000
A/C
#:
890-000-7001
Further
Credit to: Xxxxxx Diversified Strategy Master Fund
LLC
Further
Credit to #:
662-70225
|
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