MUTUAL TERMINATION AGREEMENT
This Mutual Termination Agreement (the “Termination Agreement”) is made and entered into as of [Effective Date] by and between Company 1, a [State] corporation (“[Abbreviation for Company 1]”), and Company 2, a [State] corporation (“[Abbreviation for Company 2”). [Company Name 1] and [Company Name 2] may be referred to individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, the Parties entered into that certain [Agreement Name] dated [Original Agreement Date] (the “[Original Agreement Title]”) pursuant to which [Summary of Agreement Terms];
WHEREAS, the Parties now desire to terminate the [Original Agreement Title];
NOW, THEREFORE, in consideration of the covenants and agreements set forth in this Termination Agreement, the Parties agree as follows:
Mutual Termination of the Original Agreement.
Effective immediately, the Parties hereby abandon the transactions contemplated by the [Original Agreement Title] and mutually terminate the [Original Agreement Title].
Release of Claims.
[Company Name 1] Release.
Effective immediately, [Company Name 1] and each of its predecessors, successors, subsidiaries, affiliates, and assigns (and any of the present and former officers, directors, and employees of each of the foregoing) (each, a “[Company 1 Releasing Party]”), in their capacity as such, hereby covenants not to sue and forever releases and discharges [Company Name 2] (and each of its present and former shareholders, directors, officers, representatives, advisors (including but not limited to financial advisors), attorneys, accountants, employees, agents, parents, subsidiaries, affiliated persons and entities, predecessors, successors, and assigns, heirs, executors, and administrators, and all persons acting in concert with any such party) (each, a “[Company 2 Released Party]”) from all manner of claims, actions, causes of action, or suits, at law or in equity, known or unknown, which each now has or hereafter can, shall, or may have by reason of any matter, cause, or thing whatsoever relating to or arising out of this Termination Agreement, [Original Agreement Title], or the agreements or instruments ancillary thereto, or the transactions contemplated thereby, or any action or failure to act under the [Original Agreement Title] or in connection therewith, or in connection with the events leading to the abandonment of the transactions contemplated in the [Original Agreement Title] and the mutual termination of the [Original Agreement Title], excepting only any claim, action, cause of action, or suit arising:
out of an undertaking or promise contained in this Termination Agreement; or
with respect to any statements made or actions taken after the date of this Termination Agreement.
[Company Name 2] Release.
Effective immediately, [Company Name 2] and each of its predecessors, successors, subsidiaries, affiliates, and assigns (and any of the present and former officers, directors, and employees of each of the foregoing) (each, a “[Company 2 Releasing Party]”), in their capacity as such, hereby covenants not to sue and forever releases and discharges [Company Name 1] (and each of its present and former shareholders, directors, officers, representatives, advisors, attorneys, accountants, employees, agents, parents, subsidiaries, affiliated persons and entities, predecessors, successors, and assigns, heirs, executors, and administrators, and all persons acting in concert with any such party) (each, a “[Company 1 Released Party]”) from all manner of claims, actions, causes of action, or suits, at law or in equity, known or unknown, which each now has or hereafter can, shall, or may have by reason of any matter, cause, or thing whatsoever relating to or arising out of this Termination Agreement, [Original Agreement Title], or the agreements or instruments ancillary thereto, or the transactions contemplated thereby, or any action or failure to act under the [Original Agreement Title] or in connection therewith, or in connection with the events leading to the abandonment of the transactions contemplated in the [Original Agreement Title] and the mutual termination of the [Original Agreement Title], excepting only any claim, action, cause of action, or suit arising:
(i) out of an undertaking or promise contained in this Termination Agreement; or
(ii) with respect to any statements made or actions taken after the date of this Termination Agreement.
Publicity/Required Filings.
The Parties shall not make any public statement or press release regarding this Termination Agreement unless [Company Name 2] consents in writing to such public statement or press release. However, [Company Name 1] is authorized to disclose and file a copy of this Termination Agreement as part of any applicable and legally required filings, subject to [Company Name 2]’s prior review and written approval (which shall not be unreasonably withheld) with the applicable regulatory body or securities exchange.
Representations and Warranties.
Representations of [Company Name 1].
[Company Name 1] represents to [Company Name 2] that it has all requisite corporate power and authority to enter into this Termination Agreement and to take the actions contemplated hereby. The execution and delivery of this Termination Agreement and the actions contemplated hereby have been duly authorized by all necessary corporate action on the part of [Company Name 1]. This Termination Agreement has been duly executed and delivered by [Company Name 1] and constitutes a valid and binding agreement of [Company Name 1], enforceable against it in accordance with its terms.
Representations of [Company Name 2].
[Company Name 2] represents to [Company Name 1] that it has all requisite organizational power and authority to enter into this Termination Agreement and to take the actions contemplated hereby. The execution and delivery of this Termination Agreement and the actions contemplated hereby have been duly authorized by all necessary action on the part of [Company Name 2]. This Termination Agreement has been duly executed and delivered by [Company Name 2] and constitutes a valid and binding agreement of [Company Name 2], enforceable against it in accordance with its terms.
General Provisions.
Entire Agreement; Assignment. This Termination Agreement (including the documents and instruments referred to herein) constitutes the entire agreement between the Parties in respect of the subject matter hereof and supersedes all other prior agreements and understandings, both written and oral, between the Parties in respect of the subject matter hereof. Neither this Termination Agreement nor any of the rights, interests, or obligations hereunder shall be assigned by operation of law (including by merger or consolidation) or otherwise without the prior written consent of the other Party. Any assignment in violation of the preceding sentence shall be null and void.
Notices. All notices, requests, instructions, or other documents to be given under this Termination Agreement shall be in writing and deemed given:
three business days following sending by registered or certified mail, postage prepaid;
when sent if sent by email;
when delivered, if delivered personally to the intended recipient; or
one business day following sending by overnight delivery via a national courier service.
In each case, such notices shall be addressed to a Party at the address set forth on the signature page of this Termination Agreement.
Governing Law. This Termination Agreement shall be governed by and construed in accordance with the laws of the [Applicable Jurisdiction], without giving effect to the choice of law principles thereof.
Headings. The headings of the various sections of this Termination Agreement have been inserted for convenience of reference only and shall not be deemed to be part of this Termination Agreement.
Parties in Interest. This Termination Agreement shall be binding upon and inure solely to the benefit of each Party and its successors and permitted assigns, and nothing in this Termination Agreement, express or implied, is intended to or shall confer upon any other person any rights, benefits, or remedies of any nature whatsoever under or by reason of this Termination Agreement.
Severability. The provisions of this Termination Agreement shall be deemed severable. The invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision, or the application thereof to any person or circumstance, is invalid or unenforceable:
a suitable and equitable provision shall be substituted to carry out the intent and purpose of such provision as far as may be valid and enforceable; and
the remainder of this Termination Agreement shall not be affected by such invalidity or unenforceability.
Counterparts. This Termination Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties. The Parties agree that delivery of executed signature pages by electronic mediums shall be sufficient to render this Termination Agreement effective.
Cooperation. The Parties shall cooperate and promptly prepare and file all necessary documentation to withdraw all applications, notices, petitions, and filings made with, and shall use their reasonable best efforts to terminate the proceedings before, any governmental authority in connection with the [Original Agreement Title].
Amendment and Modification. This Termination Agreement may be amended, modified, and supplemented only by a written document executed by the Parties which specifically states that it is an amendment, modification, or supplement to this Termination Agreement.
