EXHIBIT 10.9
Termination Agreement
between
Xxxxxx Private Equity LLC and SUMmedia Inc.
AGREEMENT
THIS AGREEMENT (the "Agreement" or "Termination Agreement) is entered
into as of December 22, 2000, by and among SUMmedia Inc. ("SUM" or the
"Company"), a corporation duly organized and existing under the laws of the
State of Colorado (the "Company,') and Xxxxxx Private Equity, LLC "Xxxxxx"),
(hereinafter referred to as "Xxxxxx").
RECITALS:
Whereas SUM desires to terminate its Investment Agreement with Xxxxxx dated
November 6, 2000 with respect to Equity Line Financing (the "Investment
Agreement"); and
Whereas Xxxxxx is willing to terminate the Investment Agreement for the
consideration and under the terms and conditions provided herein.
TERMS:
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in Agreement and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement (including the recitals
above), the following terms shall have the following meanings (such meanings to
be equally applicable to both the singular and plural forms of the terms
defined):
"Adjustment Date" shall mean the date that is 120 days after the date
of execution by the Company and Xxxxxx of this Termination Agreement (the "120
Day Anniversary Date"), and each 90 day anniversary of the of the 120 Day
Anniversary Date, and in addition shall mean the date that is 90 days after any
date after the date hereof that the Aggregate Liquid Xxxxxx Share Value shall
equal at least $500,000. If any Adjustment Date falls on a day that is not a
business day, the Adjustment Date shall be deemed to be the following business
day.
"Adjustment Termination Date" shall mean the later of (i) the date that
is 181 days after the date of execution by the Company and Xxxxxx of this
Termination Agreement, or (ii) the date that is 91 days after any date after the
date hereof that the Aggregate Liquid Xxxxxx Share Value shall equal at least
$500,000.
"Aggregate Xxxxxx Share Value" shall mean the sum of (A) the product of
(i) the sum of the number of Initial Common Shares and the number of Additional
Common Shares issued to Xxxxxx (in each case, including both shares that are
Liquid Shares and shares that are not Liquid Shares), multiplied by (ii) file
average closing bid price of the Company's Common Slack for the 20 trading days
immediately preceding the date in question, plus (B) any cash payments made
pursuant lo Section 5 or Section 6 below.
"Aggregate Liquid Xxxxxx Share Value" shall mean the sum of (A) the
product of (i) the sum of the number of Liquid Initial Common Shares and the
number of Liquid Additional Common Shares issued to Xxxxxx (in each case, only
to the extent that such shares are Liquid), multiplied by (ii) the average
closing bid price of the Company's Common Stock for the 20 trading days
immediately preceding the date in question, plus (B) and cash payments made
pursuant to Section 5 or Section 6 below.
For purposes hereof, shares of Common Stock shall be considered to be
"Liquid" on a given date if they are then immediately resellable either pursuant
to an effective resale registration statement or pursuant to Rule 144(k), and
"Liquid Shares" shall mean Initial Common Shares and Additional Common Shares of
Xxxxxx' that have become Liquid.
2. Termination of the Investment Agreement. The Investment Agreement and the
ancillary agreements between the parties referred to therein shall terminate and
become null and void upon signature of this Termination Agreement (subject to
the fulfillment of the other terms and conditions of this agreement). Xxxxxx
waives its right to collect the cash Termination Fee specified in the Investment
Agreement. Xxxxxx waives rights that survive the termination of the Investment
Agreement.
3. Termination of the Commitment. Xxxxxx'x Commitment Warrant, received pursuant
to the Investment Agreement, for 878,455 shares (the "Warrant Shares") of SUM
under the terms and conditions provided in the Warrant document issued by SUM on
October 3, 2000 (as amended on or about November 6, 2000) shall become null and
void (subject to the fulfillment of the other terms and conditions of this
agreement).
4. Initial Issuance of Common Shares. In addition, on or before January 10,
2001, Xxxxxx shall receive 1,500,000 fully paid shares of Common Stock of SUM
(the "Initial Common Shares"), such shares being restricted for re-sale pursuant
to Rule 144 of the Securities and Exchange Act of 1934.
5. Adjustment. On each Adjustment Date (as defined above) until and including
the Adjustment Termination Date (as defined above), the Company shall issue to
Xxxxxx additional Common Shares (the "Additional Common Shares"), if necessary,
such that the Aggregate Xxxxxx Share Value shall equal at least $500,000. If the
Company fails to deliver the Additional Common Shares within ten (10) business
days of the applicable Adjustment Date, the Company shall, at Xxxxxx'x option,
pay Xxxxxx, in cash, the market value of such shares based upon a value per
share equal to the average closing bid price for the Common Stock for the 5
trading days immediately preceding the applicable adjustment date.
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6. Cash Payment. At any time, SUM may, at its sole discretion, elect to make a
cash payment to Xxxxxx in order to increase the Aggregate Liquid Xxxxxx Share
Value and the Aggregate Xxxxxx Share Value. Payments made to Xxxxxx under this
Section 6 that are made after any Adjustment Date shall be made in addition to,
and not in replacement of or redemption of, Additional Common Shares that are
issuable to Xxxxxx on that Adjustment Date.
7. Piggyback Registration. If anytime after the date hereof thc Company proposes
to register (including for this purpose a registration effected by the Company
for shareholders Other than the Xxxxxx) any of its Common Stock Under the
Securities Act in connection with the public offering of such securities, the
Company shall, at such time, promptly give Xxxxxx written notice of such
registration (a "Piggyback Registration Statement"). Upon the written request
from Xxxxxx given by fax within ten (10) days after mailing of such notice by
the Company, the Company shall cause to be included in such registration
statement under the Securities Act all Initial Common Shares and Additional
Common Shares that have not previously been registered ("Piggyback
Registration") to the extent such inclusion does not violate the registration
rights of any other security holder of the company granted prior to the date
hereof.
8. Actions at Law or Equity; Jurisdiction and Venue. The parties acknowledge
that any dispute arising out of or relating to this Termination Agreement or the
breach, termination or validity hereof, whether at law or at equity, and whether
or not said actions are based upon this Termination Agreement between; the
parties hereto, shall be finally settled by a proceeding filed in the United
States District Court for the Western District of New York (Rochester Division).
New York law shall govern both the proceeding as well as the interpretation and
construction of the Transaction Documents and the transaction as a whole. In any
litigation between the parties hereto, the prevailing party, as found by the
court, shall be entitled to an award of all attorney's fees and costs of court.
Should the court refuse to find a prevailing party, each party shall bear its
own legal fees and costs.
FOR XXXXXX PRIVATE EQUITY LLC
/s/
--------------------------------- Date:
Title: ------------------
FOR SUMMEDIA INC.
/s/
--------------------------------- Date:
Title: ------------------
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