Exhibit 10.160
TERMINATION AGREEMENT
TERMINATION AGREEMENT (the "Agreement"), dated as of April 21, 2004, by
and between XXXX SECURITY INTERNATIONAL, INC., a Delaware corporation, (the
"Company"), and FUSION CAPITAL FUND II, LLC, an Illinois limited liability
company (the "Buyer").
WHEREAS, (i) the Buyer believes that the Master Facility Agreement
dated as of April 5, 2000, by and between the Company and the Buyer (the
"Facility Agreement"), the Equity Purchase Agreement dated as of April 17, 2000
by and between the Company and the Buyer (the "Equity Agreement") and the
agreements entered into in connection with the Facility Agreement and the Equity
Agreement permit the Buyer to convert up to 652,919 shares of Common Stock
pursuant to the Equity Agreement, (ii) the Company disputes that right, (iii)
and the Buyer and the Company have agreed to fully resolve such dispute, without
admission by either party of the validity of the other's claim, by (x) the
Company's agreement to permit a conversion by the Buyer of 150,000 shares of
Common Stock pursuant to the Equity Agreement and (y) the Company's and the
Buyer's agreement to reflect the termination of the Facility Agreement and the
Equity Agreement and any other agreement entered into in connection therewith as
provided herein.
NOW THEREFORE, the Company and the Buyer hereby agree as follows:
1. CONVERSION OF SHARES OF COMMON STOCK.
The Buyer has asserted its right to convert shares of Common Stock
pursuant to the Equity Agreement. The Company has disputed the Buyer's right to
convert shares of Common Stock pursuant to the Equity Agreement. To fully and
finally resolve such dispute between the parties and in consideration of this
Agreement, the Company hereby agrees to the conversion of 150,000 shares of
Common Stock (the "Shares") pursuant to the Equity Agreement and in accordance
with the terms of the Conversion Notice attached hereto as Exhibit I.
2. TERMINATION OF THE FACILITY AGREEMENT AND EQUITY AGREEMENT.
The Facility Agreement, the Equity Agreement and the other transaction
documents between the Buyer and the Company related to the Facility Agreement
and Equity Agreement (other than this Agreement) (the "Transaction Documents")
are hereby terminated effective as of the date hereof and any and all rights,
duties and obligations arising thereunder or in connection with the Facility
Agreement, Equity 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
Facility Agreement, (ii) the indemnification provisions set forth in Section 8
of the Facility Agreement, and (iii) the agreements and covenants set forth in
Section 9 of the Facility Agreement shall survive such termination and shall
continue in full force and effect (the "Surviving Obligations").
3. MUTUAL GENERAL RELEASE.
Except as may arise under or in connection with (i) this Agreement, and
(ii) 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 fro m 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 Facility Agreement, Equity
Agreement and Transaction Documents 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 this
Agreement and 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.
4. 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.
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(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:
If to the Company:
Xxxx Security International, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Attention: Xxxxxx 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. 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) 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.
(g) 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.
(h) 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.
(i) 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.
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(j) 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.
(k) 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.
* * * *
IN WITNESS WHEREOF, the Buyer and the Company have caused this
Termination Agreement to be duly executed as of the date first written above.
THE COMPANY:
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XXXX SECURITY INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive V.P.
BUYER:
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FUSION CAPITAL FUND II, LLC
BY: FUSION CAPITAL PARTNERS, LLC
BY: SGM HOLDINGS CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President
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