EXHIBIT 2.7
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT ("Agreement") is entered into this 2nd day of
February, 1999 by and between DP Enterprises, Inc. (formerly Compact Connection,
Inc.), a Nevada corporation ("Seller"), Xxxxxxx X. Xxxxxx (the "Seller's
Shareholder"), TeleServices International Group Inc., a Florida corporation
("TSIG") and TSIG's wholly-owned subsidiary, The MusicCard Co. (formerly Compact
Connection, Inc.), a Delaware corporation ("Buyer").
RECITALS:
WHEREAS, Seller, Seller's Shareholder, Buyer and TSIG are parties to an
Agreement For Purchase of Assets of Compact Connection, Inc. (a Nevada
Corporation) dated April 23, 1998 (the "Asset Purchase Agreement").
WHEREAS, Seller, Seller's Shareholder, Buyer and TSIG are parties to an Addendum
To The Agreement For Purchase of Assets of Compact Connection, Inc. (a Nevada
Corporation) dated April 24, 1998 (the "Addendum").
WHEREAS, Seller, Seller's Shareholder, Buyer and TSIG are parties to an Asset
Purchase Modification and License Agreement dated July 9, 1998 (the
"Modification").
WHEREAS, Seller's Shareholder and Buyer are parties to an Employment Agreement
dated April 23, 1998 (the "Employment Agreement").
WHEREAS, Seller, Seller's Shareholder and Buyer are parties to a Management
Agreement dated November 20, 1998 (the "Management Agreement").
WHEREAS, Buyer and TSIG have made substantial investments in anticipation of
closing the asset purchase transaction.
WHEREAS, the asset purchase transaction cannot be consummated and closed as
anticipated because Seller has been unable to provide audited financial
statements of its operations.
NOW, THEREFORE, in consideration of the promises and agreements set forth
herein, the parties, each intending to be legally bound hereby, do promise and
agree as follows:
1. TERM AND CONDITIONS OF TERMINATION.
1.1 Except as may be expressly set forth in this Agreement, each of the
Asset Purchase Agreement, the Addendum, the Modification, the Employment
Agreement, and the Management Agreement (collectively the "Operative Documents")
are hereby terminated, and each shall be unwound to the fullest extent possible
and shall be deemed void in their entirety.
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1.2 Each party waives any claim to any payment, royalty, fee,
compensation or other form of remuneration, as the case may be, pursuant to any
of the Operative Documents.
1.3 Seller and Seller's Shareholder agree that at no time shall they
represent or "hold-out" to third-parties that the business of Seller is or was
at any time affiliated with Buyer and/or TSIG.
1.4 Seller and Seller's Shareholder shall hold in confidence, and shall
not disclose any and all secret or confidential information of Buyer and/or TSIG
which Seller and Seller's Shareholder may have acquired from Buyer and/or TSIG.
1.5 Each party may pursue its business plans in connection with the
marketing, distribution and sale of pre-recorded-music and related products,
with the following caveats:
(a) Buyer may utilize the trademark/servicemark
"MusicCard" or any variation of such xxxx, and Seller
and Seller's Shareholder hereby consent to such use
and waive any claim for future remuneration for any
use of such xxxx.
(b) Seller waives any claim for future remuneration for
use by Buyer and/or TSIG of any business concept,
method, trade secret or other form of intellectual
property owned or alleged to be owned by Seller
and/or Seller's Shareholder.
(c) Seller and Seller's Shareholder shall not market,
distribute or sell pre-recorded-music and related
products on the internet.
(d) Seller and Seller's Shareholder shall not engage in
the future sales of "business opportunities" or
"distributorships" or "dealerships" in connection
with the marketing, distribution and sale of
pre-recorded-music and related products.
(e) Buyer may offer existing dealers/distributors of
Seller the opportunity to serve as distributors for
Buyer, and Seller and Seller's Shareholder waive any
claim for future remuneration in the event any
existing dealers/distributors elect to serve as
distributors of Buyer.
(f) To avoid any potential public confusion, no party
shall use the name "Compact Connection, Inc."
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1.6 Seller and Seller's Shareholder agree to indemnify, defend and hold
harmless Buyer and TSIG, and their officers, directors, agents, and employees,
from, against, and with respect to any claim, liability, obligation, loss,
damage, assessment, tax, judgment, action, suit, proceeding, demand, cost or
expense (including, without limitation, reasonable attorneys fees and costs, and
expenses reasonably incurred in investigating, preparing, defending against or
prosecuting any litigation or claim), of any kind or character, arising out of
or in any manner incident, relating or attributable to any liability of Seller
and Seller's Shareholder, whether known or unknown, or any failure of Seller
and/or Seller's Shareholder to perform or observe, or to have performed or
observed, in full, any covenant, agreement or condition to be performed or
observed by the Seller and Seller's Shareholder under this Agreement, or arising
out of or in any manner incident, relating or attributable to the breach of this
Agreement or any representation or warranty made by the Seller and/or Seller's
Shareholder under the Operative Documents.
2. NOTICES. Any notice required to be given pursuant to this Agreement shall be
in writing and mailed by certified or registered mail, return receipt requested,
or delivered by a national overnight express service, to the addresses set forth
on the signature page hereof, or to such other address as may hereafter be
designated.
3. JURISDICTION AND DISPUTES. The parties agree that this Agreement and the
transactions contemplated hereby shall be construed and enforced in accordance
with the laws of the State of Florida, and that any action or proceeding that
may be brought arising out of, in connection with or by reason of this Agreement
shall be brought only in a court of competent jurisdiction within the county of
Pinellas, Florida. Each of the parties hereto hereby submits, unconditionally
and irrevocably, to the jurisdiction to the aforesaid courts for the purpose of
any such lawsuits, agree to accept service of process by mail, and hereby waive
any jurisdictional or venue defenses otherwise available to it.
4. AGREEMENT BINDING ON SUCCESSORS. The provisions of the Agreement shall be
binding on and shall inure to the benefit of the parties hereto, and their legal
representatives, administrators, successors, and heirs.
5. WAIVER. No waiver by either party of any default shall be deemed as a waiver
of prior or subsequent default of the same or other provisions of this
Agreement.
6. UNDERTAKING AND FURTHER ASSURANCES. Each party to this Agreement shall
perform any and all acts and execute and deliver any and all documents as may be
necessary and proper under the circumstances in order to accomplish the intents
and purposes of this Agreement and to carry out its provisions.
7. INTERPRETATION AND FAIR CONSTRUCTION OF AGREEMENT. This Agreement has been
reviewed and approved by each of the parties. In the event it should be
determined that any provision of this Agreement is uncertain or ambiguous, the
language in all parts of this Agreement shall be in all cases construed as a
whole according to its fair meaning and not strictly construed for nor against
either party.
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8. SEVERABILITY. If any term, clause, or provision hereof is held invalid or
unenforceable by a court of competent jurisdiction, such invalidity shall not
affect the validity or operation of any other term, clause, or provision and
such invalid term, clause, or provision shall be deemed to be severed from the
Agreement.
9. MODIFICATION. This Agreement shall not be modified or amended except in
writing signed by the parties hereto and specifically referring to this
Agreement.
10. COSTS AND ATTORNEYS' FEES. If any party hereto shall bring any suit,
arbitration or other action against another for relief, declaratory or
otherwise, arising out of this Agreement, the substantially prevailing party
shall have and recover against the other party, in addition to all costs and
disbursements, such sum as the Court or arbiter may determine to be a reasonable
attorney's fee.
11. WAIVER OF BREACH. The failure of any party hereto to insist upon strict
performance of any of the covenants and agreements herein contained, or to
exercise any option or right herein conferred, in any one or more instances,
shall not be construed to be a waiver or relinquishment of any such option or
right, or of any other covenants or agreements, but the same shall be and remain
in full force and effect.
12. ENTIRE AGREEMENT. This Agreement contains the entire agreement and
understanding of the parties with respect to the entire subject matter hereof,
and there are no representations, inducements, promises or agreements, oral or
otherwise, not embodied herein. Any and all prior discussions, negotiations,
commitments and understandings relating thereto are merged herein. There are no
conditions precedent to the effectiveness of this Agreement other than as stated
herein, and there are no related collateral agreements existing between the
parties that are not referenced herein.
13. EXPENSES. Subject to the Indemnification provisions above, all costs and
expenses incurred by either party in negotiating this Agreement or in
consummating the transactions contemplated hereby, except as provided herein,
shall be paid by the party incurring such expenses.
14. HEADINGS. The section headings in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
15. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument. Execution and delivery of this Agreement by exchange of facsimile
copies bearing the facsimile signature of a party hereto shall constitute a
valid and binding execution and delivery of this Agreement by such party. Such
facsimile copies shall constitute enforceable original documents.
[SIGNATURE PAGE FOLLOWS]
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Initials: Seller:_____ Seller's Shareholder:_____ Buyer_____ TSIG_____
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In witness whereof, the parties hereto, intending to be legally bound
hereby, have each signed this Agreement effective on the date first set forth
above.
SELLER: BUYER:
DP ENTERPRISES, INC., THE MUSICCARD CO.
(formerly Compact Connection, Inc.) (formerly Compact Connection, Inc.)
a Nevada corporation a Delaware corporation
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------- --------------------------------
Xxxxxxx Xxxxxx, CEO Xxxxxx X. Xxxxxx, Chairman
0000 Xxxxxxxxxxx Xx., Xxxxx 00 000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx Xxx, Xxxxxxxxxx 00000 Xx. Xxxxxxxxxx, Xxxxxxx 00000
SELLER'S SHAREHOLDER: TSIG:
XXXXXXX X. XXXXXX TELESERVICES INTERNATIONAL GROUP INC.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxxx Xxxxxx, individually Xxxxxx X. Xxxxxx, Chairman
0000 Xxxxxxxxxxx Xx., Xxxxx 00 000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx Xxx, Xxxxxxxxxx 00000 Xx. Xxxxxxxxxx, Xxxxxxx 00000
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