Exhibit 1
MUTUAL RESCISSION AGREEMENT
AND RELEASE OF ALL CLAIMS
This Mutual Rescission Agreement and Release of all Claims (hereinafter
"Agreement") is made by and among Xxxxx Rolling, an individual, Make Your Move,
Inc., a Nevada corporation, and its assignees, and Allpaq Technologies
Corporation, a California corporation, Xxxx Xxx Ban, an unmarried woman, Xxxxxxx
X. Bang, a unmarried man, and Xxxxxx Xxx, a married man, (collectively the
"parties"), with reference to the following facts:
X. Xxxxx Rolling is an individual and a married man who is the CEO of Make
Your Move, Inc., a Nevada corporation.
B. Make Your Move, Inc. ("MYM") is a publicly owned Nevada corporation
located in Reno, Nevada. MYM originated as DCP, Limited, a Nevada limited
liability company, in 1996, and DCP Limited manufactured and distributed board
games. At the end of the calendar year 2000, MYM's CEO, Xxxxx Rolling, began to
explore the possibility of merging with, or entering into some other type of
business relationship with another business entity that could bring a "high
tech" element to game play.
C. Allpaq Technologies Corporation is a California corporation ("Allpaq"),
located in Cerritos, California. Allpaq is engaged in the business of designing
and manufacturing computers and computer LCD monitors, satellite transmitters,
and LCD panels, and providing other OEM services under the "Allpaq" name and
xxxx.
D. Xxxx Xxx Ban is an individual and an unmarried woman who is the CEO of
Allpaq.
E. Xxxxxxx X. Bang is an individual and an unmarried man who is the CFO of
Allpaq.
F. Xxxxxx Xxx is an individual and a married man who is the President of
Allpaq.
G. In or about June, 2001, the principals of MYM and Allpaq entered into
negotiations regarding the acquisition by MYM of assets of Allpaq. A draft of an
"Exchange Agreement and Plan of Reorganization" was circulated and discussed
which set forth in detail the contemplated purchase by MYM of all of Allpaq's
capital stock, as well as a purchase of assets, including all assets of Allpaq
necessary for the conduct of business in the manner in which Allpaq was
conducting business, as well as tangible and intangible property, including all
vehicles, equipment, inventory, contracts, customer lists, intellectual
property, cash, and accounts receivables. The "Exchange Agreement and Plan of
Reorganization" was never finalized or executed by the parties.
H. Certain issues have arisen, such that the parties desire not to proceed
with the sale of Allpaq assets to MYM, and the parties desire, through this
Agreement, to dissolve and rescind any agreements made between them during the
negotiations pertaining to the written "Exchange Agreement and Plan of
Reorganization." Through this Agreement, the parties desire to rescind any
relationship that may have arisen between them, and to bring this entire matter
to a final conclusion and settlement to avoid incurring any further costs and
expenses incident to the above-described negotiations. Therefore, the parties
each give their full, complete, and Mutual Release of all Claims to the other,
expressly recognizing that by the making of this Agreement and by its execution,
the parties do not admit liability or wrongdoing of any kind on their part, or
on the part of anyone else.
1
Based upon the foregoing, and for good and valuable consideration,
including, without limitation, the mutual promises and covenants contained
herein, the receipt and sufficiency of which is hereby acknowledged by each of
the parties, the parties agree as follows.
2. Incorporation of Recitals. The parties agree that the Recitals set forth
above are true and correct and are incorporated into this Agreement by
reference.
3. Rescission. Upon mutual execution of this Agreement by all parties
hereto, MYM, Allpaq, Xxxx Xxx Ban, Xxxxxxx X. Bang and Xxxxxx Xxx agree to
completely dissolve, rescind and abrogate the "Exchange Agreement and Plan of
Reorganization," any and all oral or verbal agreements or understandings that
may have been made between any of the parties hereto, or any collateral written
agreements that may have been made prior to the contemplated "Exchange Agreement
and Plan of Reorganization."
4. Mutual Release. Xxxxx Rolling, MYM, Allpaq, Xxxx Xxx Ban, Xxxxxxx X.
Bang and Xxxxxx Xxx, for and on behalf of themselves, and their respective
officers, directors, employees, managers, affiliates, insurers, attorneys,
successors, representatives, contractors, agents, and assigns hereby fully,
irrevocably, and unconditionally forever mutually release and discharge each of
the other parties hereto, and all of their respective officers, directors,
employees, managers, affiliates, insurers, agents, attorneys, representatives,
contractors, successors, and assigns, and each of them, from and against any and
all actions, causes of action, claims, judgments, liabilities, obligations,
claims for compensation, demands, costs, fees, and expenses of whatever kind or
nature, including, without limitation, attorneys' fees and costs, whether known
or unknown, foreseen or unforseen, related in any way, directly or indirectly,
to the "Exchange Agreement and Plan of Reorganization" and contemplated purchase
of Allpaq's assets by MYM. Notwithstanding any other provision of this
Agreement, the releases contained herein shall not limit, affect, or apply to
any of the parties' obligations under this Agreement.
5. Return of Property. Each of the parties to this Agreement agrees to
return any stock certificates or any other tangible or intangible personal
property that was exchanged during negotiations over the "Exchange Agreement and
Plan of Reorganization," and to take whatever steps are necessary to return the
stock certificates or other property to the transferor.
6. Mutual Contribution. This Agreement has been drafted on the basis of
mutual contribution of language and is not to be construed against any parties
hereto as being the drafter or causing the same to be drafted.
7. Further Assurances. The parties agree to cooperate with one another with
respect to the completion of the transactions contemplated by this Agreement to
take such reasonable actions and execute such other documents as the other
party(ies) may reasonably require to carry out the intent of this Agreement.
2
8. Covenant of Non-Disparagement. The parties hereby covenant and agree
that each shall not make, at any time or place, any disparaging remarks,
verbally or in writing, concerning any of the parties' actions or perceived
omissions, regarding any matter connected with the "Exchange Agreement and Plan
of Reorganization" or the contemplated purchase of Allpaq's assets by MYM, or
otherwise take any action that would disparage or cast doubt upon the business
acumen or judgment of any other party. Each party understands and acknowledges
that each other party's business and reputation are of special, unique, and
extraordinary character, which gives them a particular value, the loss of which
cannot reasonably be compensated in damages in an action at law. Accordingly,
each party further agrees that in addition to any other rights or remedies that
any other party may possess at law, any aggrieved party shall be entitled to
injunctive and other equitable relief in order to prevent or remedy a breach of
the provisions of this Section 4. by any other party hereto.
9. No Assignment. The parties to this Agreement represent and warrant that
they or their affiliated persons or entities have not assigned or transferred
any claims or any interest therein or authorized any other person or entity to
assert any claim or claims on its or their behalf with respect to the subject
matter of this Agreement.
10. Comprehensive Nature of Agreement. The parties to this Agreement
understand and expressly agree that this Agreement is completely comprehensive,
and extends to all claims of every nature and kind whatsoever arising out of any
matter related to the "Exchange Agreement and Plan of Reorganization" and
contemplated purchase of Allpaq's assets by MYM, known or unknown, foreseen or
unforeseen, suspected or unsuspected, including, but not limited to, any and all
claims under Nevada or California or other states' statutes, common law, or case
law, or federal law, and any other claim of any type whatsoever.
11. Governing Law, Venue, and Jurisdiction. This Agreement and the legal
relations between the parties shall be governed by and construed in accordance
with the laws of the State of Nevada governing contracts made and to be
performed in that state, except insofar as the internal law of any other
political entity or jurisdiction shall specifically and mandatorily apply to any
of the transactions contemplated thereby. The parties hereby agree that all
litigation resulting under this Agreement shall be under the sole and exclusive
jurisdiction of the Second Judicial District Court in and for the County of
Washoe, State of Nevada, and the parties hereby submit to exclusive jurisdiction
and venue thereunder.
12. Counterparts and Facsimile Execution. This Agreement may be executed in
two (2) or more counterparts and via facsimile transmission, each of which shall
be deemed an original, but all of which together shall constitute one in the
same instrument. If the Agreement is executed via facsimile transmission the
party so executing the Agreement shall forward an original executed document to
the other parties as soon as possible.
13. Binding Effect. This Agreement and all provisions herein shall be
binding on and inure to the benefit and detriment of the parties and their
respective legal representatives, successors and assigns.
3
14. Entire Agreement; Modification. This written Agreement represents and
contains the entire understanding between the parties hereto in connection with
the subject matter of this Agreement. This Agreement shall not be altered or
varied except in writing duly executed by the parties hereto affected. There are
no other agreements, restrictions, promises, warranties, covenants, or
undertakings, other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to the subject matter.
15. Representation. The parties to this Agreement represent that they have
carefully read this Agreement and particularly its provisions that this is a
mutual full and complete release of all claims, that it has been fully explained
to each party by competent counsel of each party's own independent selection,
that each party fully understands its final and binding effect, that each party
needs no further time to consider this Agreement, that the only promises made to
induce each party to sign this Agreement are those stated hereinabove, and that
each party is signing this Agreement voluntarily and with the full intent that
this is a full and final settlement and mutual release of all claims with
covenant of non-disparagement.
16. Attorneys' Fees. The prevailing party in any proceeding brought to
interpret or enforce the provisions of this Agreement, or for damages for any
alleged breach, shall be entitled to an award of reasonable attorneys' fees and
costs incurred at both the trial and appellate levels incurred in enforcing its,
her or his rights hereunder.
17. Representation of Authority. Each individual executing this Agreement
on behalf of himself, herself, or limited liability company, corporation, or
other legal entity represents and warrants that he or she has all requisite
right, power, and authority to do so and to bind such person or entity to each
and all of the terms hereof.
18. Headings. The headings and captions of the sections and articles of
this Agreement are inserted for convenience only and shall not constitute a part
hereof.
Dated: November 17, 2001. /s/Xxxxx Rolling
-------------------
Xxxxx Rolling
4
Dated: November 17, 2001. Make Your Move, Inc.
A Nevada corporation
By/s/Xxxxx Rolling
Xxxxx Rolling
Title President
Dated: November 17, 2001 Allpaq Technologies Corporation
A California corporation
By/s/Xxxx Xxx Ban
Name Xxxx Xxx Ban
Title President
Dated: November 17, 2001 By/s/Xxxx Xxx Ban
Xxxx Xxx Ban
Dated: November 17, 2001. By/s/Xxxxxxx X. Bang
Xxxxxxx X. Bang
Dated: November 17, 2001 By/s/Xxxxxx Xxx
Xxxxxx Xxx
5
