MUTUAL TERMINATION AGREEMENT
Exhibit
10.1
MUTUAL
TERMINATION AGREEMENT
(the
“Agreement”), dated as of November 14, 2007, by and between XETHANOL
CORPORATION,
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 Common Stock Purchase
Agreement dated as of October 18, 2005, by and between the Company and the
Buyer
(the “Purchase Agreement”) and certain other related documents. 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 (including the
Registration Rights Agreement also dated as of October 18, 2005) 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 other Transaction Documents (other than this
Agreement) 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 Sections 11 of the Purchase
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 hereby release and forever discharge
each
party hereto and its predecessors, successors and assigns, employees,
shareholders, partners, managing members, officers, directors, agents,
subsidiaries, divisions and affiliates from any and all claims, causes of
actions, 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
(other than the Surviving Obligations) 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 parties
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
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
:
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If
to the
Company:
Xethanol
Corporation
0000
Xxxxxx xx xxx Xxxxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
XX 00000
Telephone:
000-000-0000
Facsimile: 000-000-0000
Attention:
CEO
With
a
copy to:
Xxxxxx
Xxxxxxx Xxxxx & Xxxxxxxxxxx LLP
Atlantic
Station
000
00xx
Xxxxxx, X.X.
Xxxxxxx,
Xxxxxxx 00000
Telephone:
000-000-0000
Facsimile: 000-000-0000
Attention:
Xxxxxxx
X. Xxxxxx
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.
(The addresses and facsimile numbers provided above shall supersede those given
in the Purchase Agreement.) 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 containing
the
following language regarding this Agreement:
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"ITEM
1.02 TERMINATION OF MATERIAL DEFINITIVE AGREEMENT
On
November 13, 2007, Xethanol Corporation entered into a Mutual Termination
Agreement with Fusion Capital Fund II, LLC ("Fusion"), terminating (1) a Common
Stock Purchase Agreement with Fusion Capital Fund II, LLC and (2) a Registration
Rights Agreement with Fusion, each dated as of October 18, 2005."
The
Company further agrees to file this Agreement as an exhibit to the Current
Report on Form 8-K.
The
Company hereby unconditionally agrees that without the prior written consent
of
the Buyer, the Company shall not issue any press release or make any other
public disclosure of any kind whatsoever with respect to (i) the Buyer, its
employees, its managers, or any of its affiliates, (ii) the Purchase Agreement
or the transactions contemplated under the Purchase Agreement, (iii) this
Agreement, and (iv) the termination of the Purchase Agreement. In addition,
the
Company hereby unconditionally agrees that without the prior written consent
of
the Buyer, the Company shall not make any other written or verbal communication
of any kind whatsoever with respect to (i) the Buyer, its employees, its
managers, or any of its affiliates, (ii) the Purchase Agreement or the
transactions contemplated under the Purchase Agreement, (iii) this Agreement,
and (iv) the termination of the Purchase Agreement. Notwithstanding the
foregoing, the Company may continue to refer to the Purchase Agreement and
its
termination in its SEC filings if and to the extent that the Company deems
required under the federal securities laws.
(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
together with 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
(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.
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(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.
(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, the other
Transaction Documents and the instruments referenced herein contain the entire
understanding of the parties with respect to the matters covered herein and
therein and, except as specifically set forth herein or therein, 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.
*
* * *
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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.
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THE
COMPANY:
XETHANOL
CORPORATION
By: /s/
Xxxxx X. Xxxx
Name: Xxxxx
X. Xxxx
Title: President
and 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
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