Exhibit 10.95
MUTUAL TERMINATION AGREEMENT
MUTUAL TERMINATION AGREEMENT (the “Agreement”),
dated as of February 10, 2005, by and between INSIGNIA
SOLUTIONS PLC , a public limited company incorporated under the
laws of England and Wales (registered number: 1961960) (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 Securities Subscription Agreement dated as of
October 17, 2002, 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 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 October 17, 2002, 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, 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 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.
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
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