MUTUAL TERMINATION AGREEMENT
MUTUAL
TERMINATION AGREEMENT
(the
“Agreement”), dated as of July 18, 2007, by and between MULTICELL
TECHNOLOGIES, INC.,
a
Delaware 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 Amended and Restated
Common Stock Purchase Agreement dated as of October 5, 2006, by and between
the
Company and the Buyer (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 documents between the Buyer and the Company
related to the Purchase Agreement (the “Transaction Documents”) 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
the Company contained in Sections 2 and 3 of the Purchase Agreement, (ii) the
indemnification provisions set forth in Section 8 of the Purchase Agreement,
(iii) the agreements and covenants set forth in Section 11 of the Purchase
Agreement, and (iv) the Registration Rights Agreement, shall survive such
termination and shall continue in full force and effect (the “Surviving
Obligations”).
2. MUTUAL
GENERAL RELEASE.
Except
as
may arise under or in connection with this Agreement and the Surviving
Obligations, the Company and the Buyer each hereby release and forever discharge
the other party and each of its predecessors, successors and assigns, employees,
shareholders, partners, managing members, officers, directors, agents,
subsidiaries, divisions and affiliates from any and all claims, causes of
action, suits, demands, debts, dues, accounts, bonds, covenants, contracts,
agreements, judgments whatsoever in law or in equity, whether known or unknown,
including, but not limited to, any claim arising out of or relating to the
transactions described in the Purchase Agreement and Transaction Documents
which
any party hereto had, now has or which its heirs, executors, administrators,
successors or assigns, or any of them, hereafter can, shall or may have, against
any party hereto or such party’s predecessors, successors and assigns,
employees, shareholders, partners, managing members, officers, directors,
agents, subsidiaries, divisions and affiliates, for or by reason of any cause,
matter or thing whatsoever, whether arising prior to, on or after the date
hereof, provided, however, that (i) this Agreement, and (ii) the Surviving
Obligations shall continue in full force and effect as the legal, valid and
binding obligation of each party thereto enforceable against each such party
in
accordance with its terms.
3. 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
all 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.
(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 business 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:
000
Xxxxxx Xxxxxxxxxx Xxxxxxx
Xxxxxxx,
Xxxxx Xxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention:
Chief
Executive Officer
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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) business 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) Publicity;
Non-Disclosure.
The
Company agrees to file with the SEC a Current Report on Form 8-K regarding
this
agreement, and issue the press release referenced therein, by no later than
5:00
pm Eastern Time, July 20, 2007.
(g) Rule
144.
With a
view to making available to the Buyer the benefits of Rule 144 promulgated
under
the 1933 Act or any other similar rule or regulation of the SEC that may at
any
time permit the Buyer to sell any of its shares of Common Stock to the public
without registration ("Rule 144"), the Company agrees to fully cooperate in
the
prompt removal of restrictive legend from any Common Stock share certificates
delivered to the Company by the Buyer provided that an opinion of Buyer’s
counsel in customary form that registration is not required under the Securities
Act of 1933 or similar state laws in compliance with Rule 144 is delivered
together with the certificates.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
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(l)
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.
(m) 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.
(n) Entire
Agreement.
This
Agreement supersedes all other prior oral or written agreements between the
Buyer, the Company, their affiliates and persons acting on their behalf with
respect to the matters discussed herein, and this Agreement contains the entire
understanding of the parties with respect to the matters covered herein and,
except as specifically set forth herein, neither the Company nor the Buyer
makes
any representation, warranty, covenant or undertaking with respect to such
matters. The Company acknowledges and agrees that is has not relied on, in
any
manner whatsoever, any representations or statements, written or oral, other
than as expressly set forth in this Agreement.
*
* * *
IN
WITNESS WHEREOF,
the
Buyer and the Company have caused this Mutual Termination Agreement to be duly
executed as of the date first written above.
| THE COMPANY: | ||
| MULTICELL TECHNOLOGIES, INC. | ||
| |
|
|
| By: | ||
|
Name: W. Xxxxxx Xxxxxx |
||
| Title: Chairman & Chief Financial Officer | ||
| BUYER: | ||
| FUSION
CAPITAL FUND II, LLC BY: FUSION CAPITAL PARTNERS, LLC BY: SGM HOLDINGS CORP. |
||
| |
|
|
| By: | ||
|
Name: Xxxxxx X. Xxxxxx |
||
| Title: President | ||
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