EX-4.38
RESCISSION AGREEMENT
RESCISSION AGREEMENT
This Rescission Agreement (the "Agreement") is made as of
September 17, 2007 by and among Golden Gate Investors, Inc., a
California corporation ("GGI") and Gameznflix, Inc., a Nevada
corporation ("Gameznflix") and. Each of GGI and Gameznflix may
be referred to herein individually as a "Party," or collectively,
the "Parties".
WITNESSETH:
WHEREAS, Gameznflix and GGI previously entered into and
executed that certain Assignment and Assumption Agreement dated
as of May 29, 2007 (the "Assignment Agreement"); and
WHEREAS, the parties hereto now desire to rescind the
Assignment Agreement and revoke the terms and conditions set
forth therein and transfer and return to their prior respective
owners all assets, rights and property that may have been
transferred pursuant to the terms of the Assignment Agreement.
NOW THEREFORE, in consideration of and for the mutual
promises and covenants contained herein, and for other good and
valuable consideration, the receipt of which is hereby
acknowledged, the Parties have hereby agreed as follows:
1. The Parties to this Agreement hereby individually and jointly
agree that the Assignment Agreement shall be rescinded and deemed
null and void, effective immediately, and that all terms,
conditions, covenants, representations and warranties contained in
the Assignment Agreement shall terminate immediately and shall be
deemed null and void and of no further effect whatsoever.
2. The Parties to this Agreement hereby agree that any and all
assets, rights, property, securities, or items of value that may
have been assigned or transferred pursuant to the terms of the
Assignment Agreement are to be, immediately upon the execution of
this Agreement, transferred and reconveyed to the respective
parties that assigned and/or transferred such items under the
terms of the Assignment Agreement, and that each party shall be
returned to its same position as immediately prior to the
execution of the Assignment Agreement.
3. Gameznflix agrees that as consideration for the execution of
this Agreement, it shall relinquish and forever waive any
ownership claim or right to the RMD Transaction and the associated
RMD Transaction Documents and RMD Prepayment (each as defined in
the Assignment Agreement) and Gameznflix agrees to return to GGI
all of the RMD Transaction Documents and any other items
associated with the RMD Transaction.
4. GGI agrees that as consideration for the execution of this
Agreement, it shall relinquish and forever waive any ownership
claim or right to the $250,000 prepayment credit under the Warrant
to Purchase Common Stock dated as of November 11, 2004, as
amended, issued by Gameznflix to GGI, as further set forth in that
certain Addendum to Convertible Debenture and Warrant to Purchase
Common Stock between Gameznflix and GGI dated as of May 23, 2007,
as further described and set forth in Section 3 of the Assignment
Agreement (the "Prepayment Credit").
5. Gameznflix represents and warrants that there have been no
liabilities incurred by it which encumbered the rights associated
with the RMD Transaction, including the RMD Transaction Documents,
and that the RMD Prepayment has not been reduced, encumbered, or
applied in any manner, nor have any conversions or other issuances
of securities occurred in connection with the RMD Transaction or
the RMD Transaction Documents since the date of the Assignment
Agreement. Gameznflix further agrees to indemnify and hold
harmless GGI against any debt, liability, reduction in any rights
associated with the RMD Transaction or any other obligation in
connection with the RMD Transaction, including without limitation
any reduction in amount of the RMD Prepayment or conversion or
exercise under the RMD Transaction Documents, between the date of
the Assignment Agreement and the date hereof.
6. GGI represents and warrants that GGI has not applied,
encumbered or otherwise reduced any of the Prepayment Credit
between the date of the Assignment Agreement and the date hereof.
7. This Agreement shall be binding upon, and inure to the
benefit of Gameznflix and GGI, and their respective successors and
assigns.
8. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES
HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER DOCUMENT
OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF
THIS AGREEMENT AND THE RMD TRANSACTION AND THE ASSIGNMENT
AGREEMENT. EACH PARTY HERETO (i) CERTIFIES THAT NEITHER OF THEIR
RESPECTIVE REPRESENTATIVES, AGENTS OR ATTORNEYS HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (ii)
ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS HEREIN.
9. This Agreement may be executed in counterparts, each of which
when so executed and delivered shall be an original, but both of
which counterparts shall together constitute one and the same
instrument. A facsimile transmission of this signed Agreement
shall be legal and binding on all Parties hereto.
10. In the event any one or more of the provisions contained in
this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be
affected or impaired thereby. The Parties shall endeavor in good-
faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic
effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions.
11. This Agreement constitutes the entire agreement between the
Parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of such Parties. No
supplement, modification or waiver of this Agreement shall be
binding unless executed in writing by all Parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided.
12. Except as may be otherwise provided herein, any notice or
other communication or delivery required or permitted hereunder
shall be in writing and shall be delivered personally, or sent by
telecopier machine or by a nationally recognized overnight
courier service, and shall be deemed given when so delivered
personally, or by telecopier machine or overnight courier service
as follows:
If to GGI, to:
Golden Gate Investors, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Gameznflix, to:
Gameznflix, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any Party may change its foregoing address by notice given
pursuant to this Section 12.
13. This Agreement shall be construed and interpreted in
accordance with the laws of the State of California without
giving effect to the conflict of laws rules thereof or the actual
domiciles of the Parties. Each of the Parties hereby
unconditionally and irrevocably waives the right to a trial by
jury in any action, suit or proceeding arising out of or relating
to this Agreement or the transactions contemplated hereby. Each
of the Parties unconditionally and irrevocably consents to the
exclusive jurisdiction of the court of the State of California
and the Federal District Courts for the State of California with
respect to any suit, action or proceeding arising out of or
relating to this Agreement or the transactions contemplated
hereby, and each of the Parties hereby unconditionally and
irrevocably agrees that the venue of any such action shall be in
the downtown branch of the courts located in San Diego County,
California.
14. Should any Party hereto employ an attorney for the purpose
of enforcing or constituting this Agreement, or any judgment
based on this Agreement, in any legal proceeding whatsoever,
including insolvency, bankruptcy, arbitration, declaratory relief
or other litigation, the prevailing party shall be entitled to
receive from the other party or parties thereto reimbursement for
all reasonable attorneys' fees and all reasonable costs,
including but not limited to service of process, filing fees,
court and court reporter costs, investigative costs, expert
witness fees, and the cost of any bonds, whether taxable or not,
and that such reimbursement shall be included in any judgment or
final order issued in that proceeding. The "prevailing party"
means the Party determined by the court to most nearly prevail
and not necessarily the one in whose favor a judgment is rendered.
IN WITNESS WHEREOF, the Parties have executed this Agreement
as of the day and year first written above.
Gameznflix, Inc. Golden Gate Investors, Inc.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxxx Xxxx
Name: Xxxx Xxxxxxx Name: Xxxxxx Xxxx
Title: Chief Executive Officer Title: Portfolio Manager
