MUTUAL TERMINATION AGREEMENT
Exhibit
10.1
MUTUAL TERMINATION AGREEMENT
(the “Agreement”), dated as of July 15, 2010, by and between AXION INTERNATIONAL HOLDINGS,
INC., a Colorado corporation (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC,
an Illinois limited liability company (the “Investor”).
WHEREAS, the Investor and the
Company mutually desire to terminate the Purchase Agreement dated as of February
23, 2010, by and between the Company and the Investor (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 Investor hereby agree as follows:
1. TERMINATION
OF THE PURCHASE AGREEMENT.
The Purchase Agreement and the other
Transaction Documents between the Investor 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 (other than this Agreement) are now and hereafter fully and finally
terminated, provided, however, that (i) the representations and warranties of
the Investor and Company contained in Sections 3 and 4 of the Purchase
Agreement, (ii) the indemnification provisions set forth in Section 9 of the
Purchase Agreement, (iii) the agreements and covenants set forth in Section 11
of the Purchase Agreement, and (iv) that certain Registration Rights Agreement
between the Company and Investor dated February 23, 2010, the “Registration
Rights Agreement”, each 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 Investor 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 including but not limited to, the Registration Rights Agreement,
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.
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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 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 Xxxxx
Xxxxxx
Xxxxx
X
Xxx
Xxxxxxxxxx, XX 00000
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Telephone:
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000-000-0000
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Facsimile:
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000-000-0000
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Attention:
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Chief
Executive Officer
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With a
copy to:
Xxxxxxxxx
Xxxxx Xxxx & Xxxxx PLLC
000 Xxxx
Xxxxxx Xxxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
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Telephone:
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000-000-0000
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Facsimile:
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000-000-0000
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Attention:
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Xxxx
Xxxx, Esq.
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If to the
Investor:
Lincoln
Park Capital Fund, LLC
000 Xxxxx
Xxxxx, Xxxxx 000
Xxxxxxx,
XX 00000
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Telephone:
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000-000-0000
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Facsimile:
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000-000-0000
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Attention:
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Xxxx
Xxxxxxxxxx/Xxxxxxxx Xxxx
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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) Disclosure; SEC
Filings. The Company shall file with the SEC the Report on
Form 8-K set forth as Exhibit
A hereto by no later than 9:00 a.m. Eastern Time, on July 19,
2010. The Company and the Investor each hereby unconditionally agree
that for a period of two (2) years from the date of this Agreement that without
the prior written consent of the other party, neither party shall issue any
other press release, make any other SEC filing, make any other public or private
communication or disclosure, written or verbal, of any kind whatsoever with
respect to: (i) the other party, its employees, its managers, or any of its
affiliates, (ii) the Purchase Agreement, the transactions or any registration
statement contemplated under the Purchase Agreement, (iii) this Agreement, and
(iv) the termination of the Purchase Agreement. Notwithstanding the foregoing,
any party may make written communications and written public disclosures with
respect to: (i) the other party, its employees, its managers, or any of its
affiliates, (ii) the Purchase Agreement, the transactions or any registration
statement contemplated under the Purchase Agreement, (iii) this Agreement, and
(iv) the termination of the Purchase Agreement, if and only if: (a) required by
law or government regulation (and if required by subpoena or other judicial
order such information may be communicated orally as required by such
proceedings), (b) required by court order (such information may be communicated
orally if required by such order), or (c) required in connection with a written
government request, in each case, as evidenced by written advice from such
party’s legal counsel, in each case, after giving the other party one Business
Day prior written notice and the opportunity to review such written
communication or written public disclosure (however, in the case of oral
disclosures required by subpoena or court order the parties agree and
acknowledge that there may be no practicable opportunity to review such
matters). Such written advice from such party’s legal counsel shall specify in
meaningful detail all facts and legal analysis which form the basis of such
written advice. In addition to and notwithstanding the foregoing, the
Company shall also be permitted to make disclosures in any of its SEC filings
but only to the extent that such disclosures are: (I) substantially the same as
the information set forth in the Report on Form 8-K set forth as Exhibit
A hereto, (II) is substantially the same as information which was
disclosed by the Company in an SEC filing made prior to the date hereof or (III)
is required by the Company’s independent registered accounting firm to grant its
consent to or approve a particular SEC filing as evidenced by written advice
from the Company’s independent registered accounting firm. Such written advice
from the Company’s independent registered accounting firm shall specify in
meaningful detail all facts and analysis which form the basis of such written
advice.
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(g) Rule
144. With a view to making available to the Investor 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 Investor to sell any of
its shares of Common Stock to the public without registration ("Rule 144"), the Company agrees
to fully cooperate in the removal of restrictive legend from any Common Stock
share certificates delivered to the Company by the Investor together with an
opinion of Investor’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 Investor,
including by merger or consolidation. The Investor 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.
(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
Investor. 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.
* * * *
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IN WITNESS WHEREOF, the
Investor and the Company have caused this Mutual Termination Agreement to be
duly executed as of the date first written above.
| THE COMPANY: | |||
| AXION INTERNATIONAL HOLDINGS, INC. | |||
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By:
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/s/ Xxxxx Xxxxxxxx | |
| Name: | J Xxxxxxxx | ||
| Title: | Chief Executive Officer | ||
| INVESTOR: | |||
| LINCOLN PARK CAPITAL FUND, LLC | |||
| BY: LINCOLN PARK CAPITAL PARTNERS, LLC | |||
| BY: ROCKLEDGE CAPITAL CORPORATION | |||
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By:
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/s/ Xxxx Xxxxxxxxxx | |
| Name: | Xxxx Xxxxxxxxxx | ||
| Title: | President | ||
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EXHIBIT
A
REPORT
ON FORM 8-K
Item
1.02 Termination of a Material Definitive
Agreement.
On
February 23, 2010, we entered into a purchase agreement (the “Purchase
Agreement”) with Lincoln Park Capital Fund, LLC (“LPC”) for the purchase of up
to one million five hundred thousand shares of our common stock. On
July 15, 2010, we entered into a Mutual Termination Agreement with LPC to
terminate the Purchase Agreement and all of each party’s rights and obligation
to buy and sell shares of common stock thereunder. There were no costs or fees
paid or payable by either party in connection with the termination of the
Purchase Agreement.
The
foregoing description of the Mutual Termination Agreement is qualified in its
entirety by reference to the full text of the Mutual Termination Agreement, a
copy of which is attached hereto as Exhibit 10.1 and is incorporated herein in
its entirety by reference.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits.
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10.1
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Mutual
Termination Agreement, dated as of July 15, 2010, by and between Axion
International Holdings, Inc. and Lincoln Park Capital Fund,
LLC.
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