EXHIBIT
4.1
TERMINATION
AGREEMENT
TERMINATION AGREEMENT
(the “Agreement”), dated
as of July 12, 2005, 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 November
12, 2002, by and between the Company and the Buyer (the
“Purchase Agreement”) and the agreements entered into
in connection with 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) 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 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 Section 11 of the Purchase Agreement shall survive
such termination and shall continue in full force and effect (the
“Surviving Obligations”).
(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
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