MUTUAL RESCISSION AGREEMENT
Exhibit 10.1
THIS MUTUAL RESCISSION (the “Rescission Agreement”), is made and entered into as of February
4, 2011, by and among Odimo Incorporated, a Delaware corporation (“Odimo”); the majority
shareholder of Odimo listed on Schedule A attached hereto and made a part hereof (the
“Odimo Shareholder”); Standard Crushed Stone Industry Limited, a Cayman Island company (“Standard
Crushed”), and Republic Rock United Industry Limited, a British Virgin Islands company and the sole
shareholder of Standard Crushed (“Republic Rock”). Odimo, the Odimo Shareholder, Standard Crushed
and Republic Rock are sometimes referred to herein collectively as the “Parties” and individually
as the “Party”). Xxxxxxx Xxxx, Xxxxxx Xxxx and Xxxxxxx Xx are parties to this Agreement for
purposes of Section 3(c) only.
Recitals:
A. Pursuant to that certain Share Exchange Agreement by and among Odimo, Standard Crushed,
Republic Rock and Elao, LLC dated October 29, 2010 (the “Exchange Agreement”), which closed on
November 11, 2010 (the “Effective Time”), Odimo acquired all of the outstanding capital stock of
Standard Crushed and Standard Crushed became a wholly-owned subsidiary of Odimo, in exchange for
the issuance by Odimo of an aggregate of 235,281,759 shares of Odimo Common Stock (the “Reverse
Merger”). Prior to the Effective Time, Hubei Jinlong Cement Co., Ltd (“Hubei Jinlong”), a company
organized under the People’s Republic of China (the “PRC”), entered into contractual arrangements
which effectively gave Standard Crushed exclusive dominion and control over Hubei Jinlong’s
business operations and management (the “Contractual Arrangements”).
B. Notwithstanding anything to the contrary contained in the Exchange Agreement, this
Rescission Agreement shall constitute an amendment to the Exchange Agreement. Any capitalized term
used herein and not defined herein shall have the same meaning ascribed to such term in the
Exchange Agreement.
C. In January 2011, (the “Termination Date”), Odimo had been advised that (i) its application
made under the Circular on Issues Relevant to Foreign Exchange Control with Respect to the
Round-trip Investment of Funds Raised by Domestic Residents Through Offshore Special Purpose
Vehicles (“Circular 75”) issued in October 2005 by the PRC State Administration of Foreign Exchange
(“SAFE”) had not been approved (the “Non-Approval”). As a result of the Non- Approval, Odimo is
precluded from engaging in equity financing outside of China and Hubei Jinlong is not able to carry
out its business plan.
D. The Parties have each mutually agreed to, and determined that it is fair to, and in their
best interests to, rescind the Exchange Agreement and unwind the Reverse Merger and the
transactions contemplated thereby as if they never occurred upon the terms and subject to the
conditions set forth in this Rescission Agreement.
E. A majority of the Odimo shareholders have approved this Rescission Agreement and the
transactions contemplated and described hereby, including, without limitation, to rescind the
Exchange Agreement and unwind the Reverse Merger and the transactions contemplated thereby as if
they never occurred, upon the terms and subject to the conditions set forth in this Rescission
Agreement.
F. Effective ab initio, and subject to the terms set forth herein, the Parties agree to
rescind the Exchange Agreement and unwind the Reverse Merger and the transactions contemplated
thereby, upon the terms and subject to the conditions set forth in this Rescission Agreement.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, including avoiding the costs of litigation, the Parties agree as follows:
1. Recitals. The above stated Recitals are true and correct and are incorporated by
reference into this Agreement.
2. Rescission. Effective ab initio, the Exchange Agreement, in its entirety, is hereby
unequivocally rescinded, abrogated, cancelled, void in its inception and of no force or effect
whatsoever, and the Parties shall be returned to their positions prior to the Exchange Agreement
and Reverse Merger. Upon completion of the deliveries set forth in Section 3 below, the obligations
of all Parties shall be terminated and the Reverse Merger and the transactions contemplated thereby
unwound and voided as if the Exchange Agreement was never entered into and the Reverse Merger never
occurred. All agreements entered into, as contemplated by the Exchange Agreement, are terminated
effective ab initio.
3. Deliveries. Contemporaneous with the execution of this Recission Agreement, the
following shall occur:
(b) Odimo shall deliver to Standard Crushed all of the outstanding shares of common stock of
Standard Crushed which were issued to Odimo under the Exchange Agreement, together with such
executed stock powers as may be reasonably requested in order to complete the transfer (the
“Standard Crushed Shares”), and Standard Crushed shall deliver to Odimo the 235,281,759 shares of
common stock of Odimo which were issued to Standard Crushed or their designees under the Exchange
Agreement together with such executed stock powers as may be reasonably requested in order to
complete the transfer; and
(c) Odimo shall (i) appoint Xxxx Xxxxxx as a member of the Board of Directors of Odimo; and
(ii) all directors other than Lipton and all officers of Odimo shall resign.
4. Representations.
(a) Each Party has all requisite corporate power and authority to enter into and perform this
Rescission Agreement and to consummate the transactions contemplated hereby.
(b) Odimo represents that since the Effective Time and through the date hereof, Odimo has not
incurred any expense or liability.
(c) 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;
(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.
(d) The representations, warranties and agreements contained in this Rescission 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.
5. Time of the Essence. The Parties agree and stipulate that time is of the essence
with respect to compliance with each and every item set forth in this Rescission Agreement.
6. Confidentiality. Each Party hereto agrees with the other Party that, unless and
until the transactions contemplated by this Rescission Agreement have been consummated, they and
their representatives will hold in strict confidence all data and information obtained with respect
to another Party or any subsidiary thereof from any representative, officer, director or employee,
or from any books or records or from personal inspection, of such other Party, and shall not use
such data or information or disclose the same to others, except: (i) to the extent such data is a
matter of public knowledge or is required by law to be published; and (ii) to the extent that such
data or information must be used or disclosed in order to consummate the transactions contemplated
by this Rescission Agreement.
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7. Report on Form 8- K. The Parties agree that Odimo will file a Form 8-K with the
SEC within four (4) days of the date hereof reporting this Rescission Agreement.
8. Counterparts and Fax Signatures. This Rescission Agreement may be executed by fax
signature and in multiple counterparts, each of which shall be deemed an original and all of which
taken together shall be deemed a single instrument.
9. Benefit. This Rescission Agreement shall be binding upon and shall inure only to
the benefit of the Parties hereto, and their permitted assigns hereunder. This Rescission Agreement
shall not be assigned by any Party without the prior written consent of the other Party.
10. Severability. In the event that any particular provision or provisions of this
Rescission Agreement or the other agreements contained herein shall for any reason hereafter be
determined to be unenforceable, or in violation of any law, governmental order or regulation, such
unenforceability or violation shall not affect the remaining provisions of such agreements, which
shall continue in full force and effect and be binding upon the respective Parties hereto.
11. Execution Knowing and Voluntary. In executing this Rescission Agreement, the
Parties severally acknowledge and represent that each: (a) has fully and carefully read and
considered this Rescission Agreement; (b) has been or has had the opportunity to be fully apprized
by its attorneys of the legal effect and meaning of this document and all terms and conditions
hereof; (c) is executing this Rescission Agreement voluntarily, free from any influence, coercion
or duress of any kind.
12. Attorneys’ Fees. In the event that any Party institutes any action or suit to
enforce this Agreement or to secure relief from any default hereunder or breach hereof, the
breaching Party or Parties shall reimburse the non-breaching Party or Parties for all costs,
including reasonable attorneys’ fees, incurred in connection therewith and in enforcing or
collecting any judgment rendered therein.
13. Governing Law, Forum and Consent to Jurisdiction. This Rescission Agreement shall
be construed, interpreted and governed in accordance with the laws of the State of Delaware. Each
of the Parties hereto hereby irrevocably and unconditionally submits for itself and its property in
any legal action or proceeding relating to or arising in connection with this Rescission Agreement
to the exclusive general jurisdiction of the Courts of the State of Delaware.
14. Entire Agreement. This Rescission Agreement represents the entire agreement
between the Parties relating to the subject matter hereof and supersedes any prior oral or written
agreements or undertakings between the Parties to such matters. This Rescission Agreement alone
fully and completely expresses the agreement of the Parties relating to the subject matter hereof.
There are no other courses of dealing, understanding, agreements, representations or warranties,
written or oral, except as set forth herein. This Rescission Agreement may not be amended,
canceled, revoked or otherwise modified except by written agreement executed by all of the Parties
hereto.
[Remainder of Page Intentionally Blank]
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Parties hereto have caused this Rescission Agreement to be executed by
their respective duly authorized officers or representatives and entered into as of the date first
above written.
| ODIMO INCORPORATED |
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| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Chief Executive Officer and Chairman of the Board | |||
| STANDARD CRUSHED STONE INDUSTRY LIMITED |
||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Chairman | |||
| REPUBLIC ROCK UNITED INDUSTRY LIMITED |
||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Chairman | |||
| For purposes of Section 3 (c) only: |
||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| By: | /s/ Xxxxxxx Xx | |||
| Name: | Xxxxxxx Xx | |||
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SCHEDULE A
Odimo Shareholder:
Republic Rock United Industry Limited
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