Exhibit 10.1
EXECUTION COPY
RESCISSION AGREEMENT
RECISSION AGREEMENT, dated April 13, 2006, among ACL SEMICONDUCTORS,
INC., a Delaware corporation with executive offices located at B24-B27, 1/F.,
Block B, Proficient Industrial Centre, 6 ▇▇▇▇ ▇▇▇▇ Road, Kowloon, Hong Kong (the
"PURCHASER"); CLASSIC ELECTRONICS LTD., a Hong Kong corporation with executive
offices located at B6-B8, 1/F., Block B, Proficient Industrial Centre, 6 ▇▇▇▇
▇▇▇▇ Road, Kowloon, Hong Kong ("CLASSIC"), and the HOLDERS OF THE CAPITAL STOCK
OF CLASSIC IDENTIFIED IN SCHEDULE A HERETO (the "SELLERS").
INTRODUCTION
WHEREAS, the Purchaser, Classic and the Sellers entered into a Stock
Purchase Agreement dated as of December 30, 2005 (the "ORIGINAL AGREEMENT")
pursuant to which the Purchaser agreed to acquire from the Sellers, all of the
outstanding shares of capital stock of Classic (the "CLASSIC CAPITAL STOCK"), in
exchange for the cancellation of an aggregate of approximately $4.0 million of
indebtedness owed by the Sellers to Classic as of the date hereof (representing
all of the debt owing by the Sellers to Classic) (the "SELLERS' DEBT"), plus
$1.0 million previously paid by Purchaser to Classic on December 29, 2003 as a
non-refundable deposit towards the consummation of the sale of Classic (the
"CASH CONSIDERATION") to the Purchaser through cancellation of accounts
receivable then payable by Classic to Purchaser;
WHEREAS, the Sellers and Classic have been unable to timely produce
certain information required by the Purchaser;
NOW THEREFORE, the Purchaser, Classic and the Sellers have agreed to
rescind the Original Agreement and to release one another from any and all
claims they may have against each other arising out of the Original Agreement.
The parties hereto, intending to be legally bound, hereby agree as
follows:
1. RESCISSION OF ORIGINAL AGREEMENT. Each of the Purchaser, the Sellers
and Classic hereby agree to rescind the Original Agreement effective as of
December 30, 2005 and to immediately return all consideration and deliveries
made pursuant to the Original Agreement to restore the parties to their
respective positions prior to the consummation of Original Agreement, including,
without limitation, the return by the Sellers to the Purchaser of the Cash
Consideration, the reinstatement of the Sellers' Debt, the redelivery to the
Sellers of the Classic Capital Stock delivered pursuant to the Original
Agreement to the Sellers in accordance with Schedule A hereto (collectively, the
"RESCISSION").
2. MUTUAL RELEASES. The Sellers, Classic and the Purchaser each hereby
releases and discharges the other parties and their respective employees,
officers, directors, shareholders and affiliates hereto from any and all
liability relating to or arising out of the Original Agreement and the
rescission thereof effected by this Agreement; provided, however, such release
shall not apply to the obligations of the parties set forth in Section 1.01
above and elsewhere in this Agreement.
3. REPRESENTATIONS OF THE PARTIES. Each of the Parties hereto hereby
represents and warrants:
(i) that such party is duly authorized to enter into and perform his or
its obligations under this Agreement; and
(ii) that the Rescission is deemed to be in the best interest of such
party and shall not conflict with or violate any agreement, law or regulation to
which such party is subject.
4. FURTHER ACTIONS. Each of the Sellers, Classic and the Purchaser
agree to use their respective best efforts to perform their obligations
hereunder as soon as practicable and to cooperate with the other parties in
their respective performances. At any time and from time to time, each party
agrees, at its or his expense, to take such actions and to execute and deliver
such documents as may be reasonably necessary to effectuate the purposes of this
Agreement.
5. MODIFICATION. This Agreement sets forth the entire understanding of
the parties with respect to the subject matter hereof, supersede all existing
agreements among them concerning such subject matter, and may be modified only
by a written instrument duly executed by each party with the approval of the
Board of Directors or by an officer of each corporate party.
6. COUNTERPARTS; GOVERNING LAW. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. It shall be
governed by and construed in accordance with the laws of the State of New York,
without giving effect to principles of conflict of laws. Any action, suit, or
proceeding arising out of, based on, or in connection with this Agreement or the
transactions contemplated hereby may be brought in the United States District
Court or the courts of the State of New York, in each case located in the City
of New York, New York, and each party covenants and agrees not to assert, by way
of motion, as a defense, or otherwise, in any such action, suit, or proceeding,
any claim that it or he is not subject personally to the jurisdiction of such
court, that its or his property is exempt or immune from attachment or
execution, that the action, suit, or proceeding is brought in an inconvenient
forum, that the venue of the action, suit, or proceeding is improper, or that
this Agreement or the subject matter hereof may not be enforced in or by such
court.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first written above.
ACL SEMICONDUCTORS, INC.
BY: /s/ ▇▇▇▇▇-▇▇▇ ▇▇▇▇
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NAME: ▇▇▇▇▇-▇▇▇ ▇▇▇▇
TITLE: CEO
CLASSIC ELECTRONICS, LTD.
BY: /S/ ▇▇▇ ▇▇▇▇
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NAME: ▇▇▇ ▇▇▇▇
TITLE: DIRECTOR
/s/ ▇▇▇ ▇▇▇▇
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NAME: ▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇ KIN
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NAME: ▇▇▇▇ ▇▇▇ KIN
SCHEDULE A
SELLERS:
▇▇. ▇▇▇ ▇▇▇▇, a Hong Kong resident and whose residential address is situated at
6D Wah Yan Court, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, NT, Hong Kong; and
SHARES OWNED BY ▇▇. ▇▇▇▇ 2,999,999 SHARES
▇▇. ▇▇▇▇ ▇▇▇ ▇▇▇, a Hong Kong resident and whose residential address is situated
at Rm 1822, ▇▇▇▇ ▇▇▇▇ House, Heng On Estate, Ma On Shan, NT, Hong Kong
SHARES OWNED BY ▇▇. ▇▇▇▇ ▇▇▇ ▇▇▇: 1 SHARE