Exhibit 10.1
RESCISSION AGREEMENT
This Rescission Agreement ("Rescission Agreement") is made and entered
into as of January 11, 2005 (the "Effective Date"), by and between Axia Group,
Inc., a Nevada corporation (the "Company"), D&R Crane, Inc., a California
corporation (the "Target"), Xxxx X. Xxxxx and Xxxxxxxx Xxxxxxx, (each a "Selling
Stockholder" and, collectively, the "Selling Stockholders").
RECITALS
A. Pursuant to that certain Stock Purchase Agreement dated as of July
21, 2004 (the "Agreement"), the Selling Stockholders collectively sold 400
shares of common stock of the Target (the "Target Shares") to the Company in
exchange for the issuance by the Company of an aggregate of 100,000,000
"pre-split" shares (the "Pre-Split Common Shares") of common stock, par value
$0.001 per share (the "Common Stock") and 5,000,000 shares of Series C Preferred
Stock of the Company (the "Series C Shares") to the Selling Stockholders.
B. On October 18, 2004, the Company conducted a 1,000 for 1 reverse
stock split of its Common Stock, pursuant to which the Pre-Split Common Shares
were reduced to 100,000 shares (the "Common Shares") of Common Stock.
C. On October 22, 2004, the Selling Stockholders converted the Series C
Preferred Shares into an aggregate of 500,000,000 shares (the "Conversion
Shares") of Common Stock. The Common Shares and the Conversion Shares are
collectively referred to as the "Company Shares").
D. The Company, the Target, and the Selling Stockholders now wish to
formally rescind the Agreement and the transactions thereunder, on the terms and
subject to the conditions as contained in this Rescission Agreement.
NOW, THEREFORE, the parties agree as follows:
AGREEMENT
1. Incorporation of Recitals. The foregoing Recitals are herein
incorporated by this reference.
2. Rescission of Agreement.
2.1 The Company, the Target, and the Selling Stockholders
hereby mutually agree to rescind the Agreement and void it ab initio
and to rescind the Company Shares and void and cancel them ab initio.
2.2 The Selling Stockholders will return the certificates
evidencing the Company Shares to the Company's transfer agent for
cancellation accompanied with stock assignments separate from
certificate executed by each Selling Stockholder, signature medallion
guaranteed, transferring the Company Shares to the Company.
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2.3 The Company will return the certificates representing the
Target Shares to the Selling Stockholders, along with executed stock
powers, in form and substance satisfactory to the Selling Stockholders
and the Target, for purposes of assigning and transferring all of their
right, title and interest in and to the Target Shares.
2.4 Xxxxxxxx Xxxxxxx shall resign as a director and as an
officer of the Company.
2.5 Each party hereto will, before, at, and after the
Effective Date, execute and deliver such instruments and take such
other actions as the other party or parties, as the case may be, may
reasonably require in order to carry out the intent of this Rescission
Agreement. Without limiting the generality of the foregoing, at any
time after the Closing, at the request of the Company, and without
further consideration, the Target and the Selling Stockholders (a) will
execute and deliver such instruments of sale, transfer, conveyance,
assignment and confirmation and take such action as the Company may
reasonably deem necessary or desirable in order to more effectively
transfer, convey and assign the Target Shares to the Selling
Stockholders or to cancel the Company Shares, and (b) will execute such
documents as and take such action as the Company may reasonably deem
necessary or desirable in order to prepare and file any future report,
registration statement or definitive proxy statement that the Company
seeks to file with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, or the Securities Exchange Act of
1934, as amended.
2.6 The Selling Stockholders shall deliver to the Company, as
directed by Xx. Xxxxxxx, the following documents:
2.6.1 The complete original articles of
incorporation, bylaws, minutes, and other corporate books and records,
all as amended to date, of the Company.
2.6.2 All accounting books and records for the
Company for the period commencing January 1, 2001 through the
present.
2.6.3 A list of all SEC and XXXXX codes for the
Company.
2.6.4 A letter of instruction to the transfer agent
of the Company signed by Xxxx X. Xxxxx on behalf of the
Company advising the transfer agent of the change of officers
and directors contemplated by this Rescission Agreement.
2.6.5 A letter to the Company's current certifying
accountants signed by Xxxx X. Xxxxx on behalf of the Company
advising the certifying accountants of the change of officers
and directors contemplated by this Rescission Agreement.
2.7 The Company shall indemnify and hold the Selling
Stockholders and the Target harmless in respect of any and all claims,
demands, actions, causes of action, damages, losses, costs, liabilities
or expenses (hereinafter referred to as "Claim") that arise out of or
relate to the Target's status as a subsidiary of the Company.
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2.8 The Company does hereby assume and agree to pay,
discharge, observe and perform, as of and from and after the date
hereof, any and all obligations arising under that certain convertible
promissory note (the "Note") made by the Target in favor of Xxxxxxx X.
Xxxxx or any claims, demands, actions, causes of action, damages,
losses, costs, liabilities or expenses that arise out of or relate to
the Note or the funds advanced to the Target with respect to the same.
2.9 Releases.
2.9.1 The Company on behalf of itself and each of its
respective agents, attorneys, insurers, heirs, assigns,
beneficiaries, executors, trustees, conservators,
representatives, predecessors-in-interest,
successors-in-interest, and whomsoever may claim by, under or
through them, and all persons acting by, through, under or in
concert with any of them (the "Company Parties") hereby
irrevocably and unconditionally forever release, remise,
acquit and discharge each of the Target, the Selling
Stockholders and all of their respective present, former or
future agents, representatives, employees, independent
contractors, directors, shareholders, officers, attorneys,
insurers, subsidiaries, divisions, parents, assigns,
affiliates, predecessors and successors (collectively, the
"Target Parties") from and against any and all debts,
obligations, losses, costs, promises, covenants, agreements,
contracts, endorsements, bonds, controversies, suits, actions,
causes of action, misrepresentations, defamatory statements,
tortious conduct, acts or omissions, rights, obligations,
liabilities, judgments, damages, expenses, claims,
counterclaims, cross-claims, or demands, in law or equity,
asserted or unasserted, express or implied, foreseen or
unforeseen, real or imaginary, alleged or actual, suspected or
unsuspected, known or unknown, liquidated or non-liquidated,
of any kind or nature or description whatsoever, arising from
the beginning of the world through the date of this Agreement
which each of the Company Parties ever had, presently have,
may have, or claim or assert to have, or hereafter have, may
have, or claim or assert to have, against any of the Target
Parties, including, but not limited to, any and all actual or
implied claims, demands and causes of action in any way
relating to the rights, duties and obligations under the
Agreement (the "Company Released Claims"); provided, however,
that this release shall not affect the rights of the Company
Parties under this Rescission Agreement or under any other
agreement, certificate or instrument executed and delivered
pursuant to this Rescission Agreement.
2.9.2 The Target Parties on behalf of themselves and
each of their respective agents, attorneys, insurers, heirs,
assigns, beneficiaries, executors, trustees, conservators,
representatives, predecessors-in-interest,
successors-in-interest, and whomsoever may claim by, under or
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through them, and all persons acting by, through, under or in
concert with any of them hereby irrevocably and
unconditionally forever release, remise, acquit and discharge
each and all of the Company Parties and all of their
respective present, former or future agents, representatives,
employees, independent contractors, directors, shareholders,
officers, attorneys, insurers, subsidiaries, divisions,
parents, assigns, affiliates, predecessors and successors from
and against any and all debts, obligations, losses, costs,
promises, covenants, agreements, contracts, endorsements,
bonds, controversies, suits, actions, causes of action,
misrepresentations, defamatory statements, tortious conduct,
acts or omissions, rights, obligations, liabilities,
judgments, damages, expenses, claims, counterclaims,
cross-claims, or demands, in law or equity, asserted or
unasserted, express or implied, foreseen or unforeseen, real
or imaginary, alleged or actual, suspected or unsuspected,
known or unknown, liquidated or non-liquidated, of any kind or
nature or description whatsoever, arising from the beginning
of the world through the date of this Agreement which each of
the Target Parties ever had, presently have, may have, or
claim or assert to have, or hereafter have, may have, or claim
or assert to have, against any of the Company Parties,
including, but not limited to, any and all actual or implied
claims, demands and causes of action in any way relating to
the rights, duties and obligations under the Agreement (the
"Target Released Claims"); provided, however, that this
release shall not affect the rights of the Target Parties
under this Rescission Agreement or under any other agreement,
certificate or instrument executed and delivered pursuant to
this Rescission Agreement..
2.9.3 The Company Parties and the Target Parties
(collectively, the "Parties") acknowledge and understand that
hereafter they may discover or appreciate claims, facts,
issues or concerns in addition to or different from those that
they now know or believe to exist with respect to the subject
matter of this Agreement that, if known or suspected at the
time of execution of this Agreement, might have materially
affected the settlement embodied herein. The Parties
nevertheless agree that the general releases and waivers
described in Paragraphs 2.9.1 and 2.9.2 above apply to any
such additional or different claims, facts, issues or
concerns. The Parties acknowledge that this release is
intended to be very broad and is a critical element of the
Parties' settlement.
2.9.4 It is the intention of the Parties that the
foregoing general releases shall be effective for use as a
protective bar to all Company Released Claims and Target
Released Claims (collectively, the "Released Claims") and
shall terminate all of the Parties' rights, duties and
obligations, if any, under the Agreement. In furtherance, and
not in limitation of such intention, the general release
provided for herein shall be, and shall remain in effect, as a
full and complete release, notwithstanding the later discovery
or existence of any additional or different facts or claims,
without limitation.
2.9.5 The Parties acknowledge that they have been
advised by their respective attorneys and are familiar with
and understand the provisions of California Civil Code Section
1542 as well as all provisions of federal law and Nevada state
law that may provide any right or benefit that is similar in
any material respect to California Civil Code Section 1542,
which provides as follows:
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A general release does not extend to claims which the
creditor does not know or suspect to exist in his
favor at the time of executing the release, which if
known by him must have materially affected his
settlement with the debtor.
2.9.6 The Parties hereby voluntarily and expressly
waive and relinquish each and every right or benefit which
they may have under California Civil Code Section 1542 and all
provisions of federal law and Nevada state law that may
provide any right or benefit that is similar in any material
respect to the rights and benefits afforded under California
Civil Code Section 1542, to the full extent that they may
lawfully waive such rights. The Parties acknowledge that they
may hereafter discover facts in addition to or different from
those which they presently know or believe to be true
regarding the subject matter of the dispute and the other
matters herein released, but agree that they have taken that
possibility into account and that it is their intention hereby
to fully, finally and forever settle and release the matters,
disputes and differences, now known or unknown, suspected or
unsuspected, arising out of or in any way relating to the
matters released pursuant to this Agreement, and to terminate
any and all rights, duties and obligations of the Parties
under the Agreement.
2.9.7 The Parties hereto acknowledge that they
expressly understand that this Agreement and the settlement it
represents (a) is entered into solely for the purpose of
avoiding any possible future expenses, burdens or distractions
of litigation and (b) in no way constitutes an admission by
any party hereto of any liability of any kind to any other
party or of any wrongdoing on the part of any of the Parties.
In this connection, the Parties specifically deny any
liability in connection with any claims which have been made
or could have been made, or which are the subject matter of,
or arise from, or are connected directly or indirectly with or
related in any way to the rights, duties and obligations under
the Blake Agreements, including, but not limited to, any
violation of any federal or state law (whether statutory or
common law), rule or regulation, and the Parties deny that a
violation of any such law, rule or regulation has ever
occurred.
2.10 From time to time hereafter, and without further
consideration, each party agrees to execute and deliver such other
instruments of transfer and take such other actions as the other party
may reasonably request in order to more effectively reflect the
rescission of the transactions contemplated by the Agreement and to
void it ab initio.
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3. MISCELLANEOUS.
3.1 Successors and Assigns. The rights and obligations of the
parties under this Rescission Agreement shall not be assignable without
the written consent of the Company, the Target, and the Selling
Stockholders and any such purported assignment with their written
consent shall be void ab initio. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Rescission
Agreement by or on behalf of any of the parties hereto will bind and
inure to the benefit of the respective successors and assigns of the
parties hereto whether so expressed or not.
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3.2 Severability. Whenever possible, each provision of this
Rescission Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Rescission Agreement is held to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder
of this Rescission Agreement or the other documents.
3.3 Counterparts. This Rescission Agreement may be executed in
two or more counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts when taken
together will constitute one and the same agreement.
3.4 Litigation Costs. If any legal action or other proceeding
is brought for the enforcement of this Rescission Agreement, or because
of an alleged dispute, breach, default, or misrepresentation in
connection with any of the provisions thereof, the successful or
prevailing party or parties shall be entitled to recover reasonable
attorneys' fees and other costs incurred in that action or proceeding,
in addition to any other relief to which it or they may be entitled.
3.5 Governing Law; Jurisdiction of Disputes. This Rescission
Agreement shall be governed by and construed under the laws of the
State of Nevada. In the event of any disputes between the parties under
this Agreement, the parties agree to litigate the dispute exclusively
win the Federal or state courts located in Orange County, State of
California.
3.6 Entire Agreement. This Rescission Agreement constitutes
the entire agreement and understanding of the parties with respect to
the subject matter thereof, and supersedes all prior and
contemporaneous agreements and understandings.
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IN WITNESS WHEREOF, each of the parties to this Rescission
Agreement has executed or caused this Rescission Agreement to be executed as of
the date first above written.
Company
Axia Group, Inc., a Nevada corporation
By:/s/ Xxxx X. Xxxxx
-----------------------------------------
Xxxx X. Xxxxx, President
Target
D&R Crane, Inc., a California corporation
By:/s/ Xxxx X. Xxxxx
-----------------------------------------
Xxxx X. Xxxxx, President
Selling Stockholders
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
/s/ Xxxxxxxx Xxxxxxx
------------------------------
Xxxxxxxx Xxxxxxx
[Signature Page to Rescission Agreement]
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