TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT (the "Agreement") is made and entered into
effective as of December 30, 2005, by and among EARTHSHELL CORPORATION, a
Delaware corporation (the "Company"), CORNELL CAPITAL PARTNERS, LP, a Delaware
limited partnership (the "Investor"), and XXXXX SECURITIES CORP. (the "Placement
Agent").
Recitals:
WHEREAS, the Company and the Investor entered into a Standby Equity
Distribution Agreement (the "Standby Equity Distribution"), a Registration
Rights Agreement (the "Registration Rights Agreement"), an Escrow Agreement (the
"Escrow Agreement"), and the Company, the Investor, and the Placement Agent
entered into a Placement Agent Agreement (the "Placement Agent Agreement"), all
of which are dated March 23, 2005 (collectively, the "Transaction Documents").
In connection with the Standby Equity Distribution Agreement, the Company issued
143,550 shares of Common Stock to the Investor (the "Investor's Shares") and
6,450 shares of Common Stock to the Placement Agent (the "Placement Agent's
Shares").
NOW, THEREFORE, in consideration of the mutual promises, conditions and
covenants contained herein and in the Transaction Documents and other good and
valuable consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
1. Termination. The Company and the Investor, and the Placement Agent
with respect to the Placement Agent Agreement, hereby agree to
terminate the Transaction Documents and the respective rights and
obligations contained therein. As a result of this provision, none
of the parties shall have any rights or obligations under or with
respect to the Transaction Documents.
2. Shares. The Investor shall retain the Investor's Shares and the
Placement Agent shall retain the Placement Agent's Shares, and the
Company shall register the resale of such shares by the Investor and
the Placement Agent on the next registration statement it files.
3. Credit. In the event that the Company and the Investor enter into a
standby equity distribution agreement in the future, the Company
shall be entitled to a credit towards any commitment fees owed to
the Investor in connection therewith in an amount equal to the value
of the Investor's Shares at the time of original issuance.
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IN WITNESS WHEREOF, the parties have signed and delivered this Termination
Agreement on the date first set forth above.
EARTHSHELL CORPORATION CORNELL CAPITAL PARTNERS, LP
By: Yorkville Advisors, LLC
By: /s/ Xxxxx Xxxxxxx Its: General Partner
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Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer By: /s/ Xxxx Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Portfolio Manager
With respect to the Placement Agent
Agreement:
PLACEMENT AGENT:
XXXXX SECURITIES CORP.
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: President