TERMINATION AGREEMENT
TERMINATION
AGREEMENT
(the
“Agreement”), dated as of January 19, 2006, by and between GOLDEN
PHOENIX MINERALS, INC.,
a
Minnesota corporation, (the “Company”), and FUSION
CAPITAL FUND II, LLC, an
Illinois limited liability company (the “Buyer”).
WHEREAS,
the
Buyer and the Company mutually desire to terminate the Common Stock Purchase
Agreement dated as of July 13, 2005, by and between the Company and the Buyer
(the “Purchase Agreement”) and the agreements entered into in connection with
the Purchase Agreement. All capitalized terms used in this Agreement that are
not defined in this Agreement shall have the meanings set forth in the Purchase
Agreement.
NOW
THEREFORE,
the
Company and the Buyer hereby agree as follows:
1. TERMINATION
OF THE PURCHASE AGREEMENT.
The
Purchase Agreement, and the other Transaction Documents between the Buyer and
the Company related to the Purchase Agreement (other than this Agreement) are
hereby terminated effective as of the date hereof and any and all rights, duties
and obligations arising thereunder or in connection with the Purchase Agreement,
and the Transaction Documents are now and hereafter fully and finally
terminated, provided, however, that (i) the representations and warranties
of
the Buyer and Company contained in Sections 2 and 3 of the Purchase Agreement,
(ii) the indemnification provisions set forth in Section 8 of the Purchase
Agreement, and (iii) the agreements and covenants set forth in Section 11 of
the
Purchase Agreement shall survive such termination and shall continue in full
force and effect (the “Surviving Obligations”).
2. MISCELLANEOUS.
(a) Governing
Law; Jurisdiction; Jury Trial.
All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of
Illinois, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Illinois or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than
the
State of Illinois. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of Chicago,
for
the adjudication of any dispute hereunder or under the other Transaction
Documents or in connection herewith or therewith, or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is
not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such
suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve
process in any manner permitted by law. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.
(b) Counterparts.
This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if
the
signature were an original, not a facsimile signature.
(c) Headings.
The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
(d) Severability.
If any
provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or
the
validity or enforceability of any provision of this Agreement in any other
jurisdiction.
(e) Notices.
Any
notices, consents, waivers or other communications required or permitted to
be
given under the terms of this Agreement must be in writing and will be deemed
to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one Trading Day after deposit with a nationally recognized overnight
delivery service, in each case properly addressed to the party to receive the
same. The addresses and facsimile numbers for such communications shall
be:
If
to the
Company:
Golden
Phoenix Minerals, Inc.
0000
X.
Xxxxxx Xxx, Xxxxx 000
Xxxxxx,
Xxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention:
If
to the
Buyer:
Fusion
Capital Fund II, LLC
000
Xxxxxxxxxxx Xxxx Xxxxx, Xxxxx 0-000
Xxxxxxx,
XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx
X.
Xxxxxx
or
at
such other address and/or facsimile number and/or to the attention of such
other
person as the recipient party has specified by written notice given to each
other party three (3) Trading Days prior to the effectiveness of such change.
Written confirmation of receipt (A) given by the recipient of such notice,
consent, waiver or other communication, (B) mechanically or electronically
generated by the sender's facsimile machine containing the time, date, and
recipient facsimile number or (C) provided by a nationally recognized overnight
delivery service, shall be rebuttable evidence of personal service, receipt
by
facsimile or receipt from a nationally recognized overnight delivery service
in
accordance with clause (i), (ii) or (iii) above, respectively.
(f) Successors
and Assigns.
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and assigns. The Company shall not assign this
Agreement or any rights or obligations hereunder without the prior written
consent of the Buyer, including by merger or consolidation. The Buyer may not
assign its rights or obligations under this Agreement.
(g) No
Third Party Beneficiaries.
This
Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other person.
(h) Further
Assurances.
Each
party shall do and perform, or cause to be done and performed, all such further
acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement.
(i) No
Strict Construction.
The
language used in this Agreement is the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against
any party.
(j) Changes
to the Terms of this Agreement.
This
Agreement and any provision hereof may only be amended by an instrument in
writing signed by the Company and the Buyer. The term "Agreement" and all
reference thereto, as used throughout this instrument, shall mean this
instrument as originally executed, or if later amended or supplemented, then
as
so amended or supplemented.
(k) Failure
or Indulgence Not Waiver.
No
failure or delay in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
of
any such power, right or privilege preclude other or further exercise thereof
or
of any other right, power or privilege.
*
* *
IN
WITNESS WHEREOF,
the
Buyer and the Company have caused this Termination Agreement to be duly executed
as of the date first written above.
| THE COMPANY: | ||
| GOLDEN PHOENIX MINERALS, INC. | ||
| By: /s/ Xxxxxxx X. Xxxxxx | ||
| Name: Xxxxxxx X. Xxxxxx | ||
| Title: Interim Chief Executive Officer | ||
| BUYER: | ||
| FUSION CAPITAL FUND II, LLC | ||
| BY: FUSION CAPITAL PARTNERS, LLC | ||
| BY: SGM HOLDINGS CORP. | ||
| By: /s/ Xxxxxx X. Xxxxxx | ||
| Name: Xxxxxx X. Xxxxxx | ||
| Title: President |
