MUTUAL TERMINATION
AGREEMENT
MUTUAL
TERMINATION AGREEMENT (the “Agreement”), dated as
of April 23, 2007, 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 January 20, 2006, by and
between the Company and the Buyer (the “Purchase
Agreement”) in connection with a $6 million capital
raise by the Company in a private placement to institutional and
accredited investors (the “Private Placement”).
Attached hereto as Exhibit “A” is the Company’s
written notice of termination pursuant to Section 11(k) of 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, that certain Registration Rights Agreement between the
Company and Buyer dated January 20, 2006, the
“Registration Rights 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 then the
Registration Rights Agreement and 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, (iii) the agreements
and covenants set forth in Section 11 of the Purchase
Agreement, including, but not limited to, the Company’s and
the Buyer’s obligations with respect to any pending purchases
of Common Stock under the Purchase Agreement, (iv) the
Registration Rights Agreement, and (v) that certain
Termination Agreement between the Buyer and the Company dated as of
January 19, 2006, and the “Surviving Obligations”
set forth therein, 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 Registration Rights Agreement or 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, (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.
(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 contemplat
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