AMENDED AND RESTATED SETTLEMENT AGREEMENT
Exhibit 10.1
AMENDED AND RESTATED SETTLEMENT AGREEMENT
THIS AMENDED AND RESTATED SETTLEMENT AGREEMENT (the “Agreement”), dated as of July 18, 2012, is entered into by and among China Electronics Holdings, Inc., a Nevada corporation (the “Company”), American Capital Partners, LLC (“ACP”) and individual investors as listed in Schedule A in connection with the subscription agreement of the Company’s July 2010 and August 2010 private placements (collectively, the “Offering”),, and is intended to amend, restate and replace, in its entirety, the original settlement agreement by and between the Company and ACP dated December 6, 2011 and is effective as of the date hereof Defined terms not otherwise defined herein shall have the meanings set forth in the Offering
WHEREAS, pursuant to Section 9 of the Subscription Agreements entered into between the Company and each of the Subscribers (collectively, the “Subscription Agreements”) in connection with the Offering, the Company was required to file a registration statement with the Securities and Exchange Commission and prosecute the same to effectiveness by the dates set forth in the Subscription Agreements and has failed to do so (the “Non-Registration Event”);
WHEREAS, pursuant to the Subscription Agreements entered into between the Company and each of the Subscribers, Subscribers are entitled to liquidated damages from the Company on the first business day after the earliest date of occurrence of any or all Non-Registration Events and for each subsequent thirty (30) day period for a aggregate amount no more than $262,500 (the “Maximum Liquidated Damages”);
WHEREAS, pursuant to Section 12 of the Subscription Agreements entered into between the Company and each of the Subscribers, ACP is appointed as subscriber’s representative (the “Subscriber Representative”) to act collectively on behalf of each and all subscribers at its sole discretion with respect to the transaction documents and all amendments thereto except for Oso Capital, LLC, Xxx Bear I, LLC, Chestnut Ridge Partners, LP, Xxx Xxxxxxx, DNST Properties, LLC, Xxxxx Family Trust, SEL Private Trust Co. FAO Xxx Xxxxxxx Co. Master Trust, Coronado Capital Partners LP, Lazy Bear I, LLC, Xxxxxx X. Xxx, Xxxxx Xxxxxxx and Bear Xxxxx, LLC;
WHEREAS, a dispute has arisen as to the right of the Subscribers to liquidated damages from the Company; and
WHEREAS, the Company has made payment of liquidated damages in the amount of $131,250 to ACP and Subscribers as of today; and
WHERAS, the Company and ACP on behalf of the Subscribers desire to resolve the dispute as to the payment of the balance of the liquidated damages on the terms and conditions set forth herein;
NOW THEREOF, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and ACP hereby agree as follows:
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1.
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On or before July 20, 2012, the Company will deliver $50,000 by wire transfer to Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP’s Escrow Account pursuant to the attached wire instructions for disbursement to the Subscribers upon receipt of a fully executed copy of this Agreement;
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2.
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On or before July 31, 2012, the Company shall pay an additional $50,000 by wire transfer to Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP’s Escrow Account pursuant to the attached wire instructions for disbursement to the Subscribers upon receipt of a fully executed copy of this Agreement; and
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3.
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On or before August 31, 2012, the Company shall pay an additional $31,250 by wire transfer to Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP’s Escrow Account pursuant to the attached wire instructions for disbursement to the Subscribers upon receipt of a fully executed copy of this Agreement;
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FURTHER, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and ACP hereby agree as follows:
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4.
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Subject to the full and timely payment no later than August 31, 2012, of the $131,250 provided for above:
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a.
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ACP, on behalf of itself, and each of the Subscribers, forever releases and discharges the Company, China Electronic Holdings, Inc. (Delaware), Lu’an Guoying Electronic Sales Co., Ltd. and its shareholders, subsidiaries, affiliates, successors, and assigns (collectively, the “Releasees”) from any and all claims, demands, causes of action, and liabilities of any kind whatsoever (upon any legal or equitable theory, whether contractual, common-law, statutory, federal, state, local, or otherwise), whether known or unknown, arising out of or in connection with any further liquidated damages without limitation as identified in Section 7, Section 9, and Section 13(f)of the Subscription Agreement;
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b.
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ACP, on behalf of itself, and each of the Subscribers, waives any right it or they may have to require the Company to register any securities of the Company under the Securities Act of 1933, as amended, together with any right it or they may have to seek damages or otherwise declare an Event of Default under the Subscription Agreements including, without limitation under Sections 7(o) “Further Registration Statements,” 7(r) “Uplisting”,9(d) “Non-Registration Events”, and 13(f) “Damages”. This agreement supersedes in its entirety Section 7(o), 7(r), 9(d) and 13(f) of the Subscription Agreements in connection with the Offering.
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Notwithstanding anything contained in the Subscription Agreements, ACP hereby agrees on behalf of itself, each and all of the Subscribers, that in the event any of them shall commence an action against the Company or its subsidiaries or any of their respective officers and directors, arising out of or related to the Subscription Agreements or any other matter, action or failure to act occurring on or prior to the date hereof, that each party shall to bear its own legal fees and expenses in connection therewith regardless of the outcome thereof.
IN WHITNESS WHEREOF, this Agreement is executed as of the date first set forth above.
By: /s/ Xxxxxxx Xxx
Name: Xxxxxxx Xxx
Title: Chairman of the Board, CEO and President
AMERICAN CAPITAL PARTNERS, LLC
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: CEO
BEAR XXXXX LLC
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title:
CHESTNUT RIDGE PARTNERS, LP
By: /s/Xxxxxxx Xxxxxxxxx
Name: Chestnut Ridge Capital, LLC., General Partner
Title: Xxxxxxx Xxxxxxxxx, Managing Member
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
CORONADO CAPITAL PARTNERS LP
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President
SEL PRIVATE TRUST CO. FAO XXX XXXXXXX CO. MASTER TRUST
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President
DNST PROPERTIES, LLC.
By: /s/ Xxxxx Xxxxxxxx
Name: Directional Managing Co., Manager
Title: Xxxxx Xxxxxxxx, Present
XXXXX FAMILY TRUST
By: /s/ Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: Trustee
OSO CAPITAL, LLC.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title:
XXX BEAR I, LLC.
By: /s/Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Lazy Bear, LLC. Oso Capital as member
LAZY BEAR I, LLC.
By: /s/Xxxxx Xxxx
Name: OSO Capital, LLC., by Xxxxx Xxxx
Title:
/s/ Xxxxxx X. Xxx
Xxxxxx X. Xxx
/s/ Xxx Xxxxxxx
Xxx Xxxxxxx
SCHEDULE A
BEAR XXXXX LLC CHESTNUT RIDGE PARTNERS, XX
XXXXXXXX RIDGE PARTNERS, LP
XXXXX XXXXXXX
CORONADO CAPITAL PARTNERS LP
SEL PRIVATE TRUST CO. FAO XXX XXXXXXX CO. MASTER TRUST
DNST PROPERTIES, LLC.
XXXXX FAMILY TRUST
OSO CAPITAL, LLC.
XXX BEAR I, LLC.
LAZY BEAR LLC
XXXXXX X. XXX
XXX XXXXXXX