Exhibit 2.1
TERMINATION AGREEMENT
This Termination Agreement (this "Agreement") is dated as of this
30th day of March, 2004 between Dominix, Inc., a Delaware corporation
("Dominix") and MarketShare Recovery, Inc., a Delaware corporation
("MarketShare").
A. Dominix and MarketShare entered into a Stock Purchase Agreement
dated November 25, 2003 (the "Stock Purchase Agreement") under which
Dominix, subject to certain conditions, would acquire all of the
outstanding capital stock of MarketShare Recovery, Inc., a New York
corporation and wholly owned subsidiary of MarketShare (MarketShare
Sub).
B. Closing under the Stock Purchase Agreement was to occur before
January 31,2004 unless MarketShare was required to file an information
statement with the SEC, in which case the closing is to occur by March
31, 2004.
C. MarketShare has provided Dominix with the use of office space at
00 Xxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx (the "Premises").
D. Dominix has provided financial support to MarketShare.
E. The parties have determined that it is in their mutual best
interest to terminate the Stock Purchase Agreement in accordance with
the terms set forth herein.
NOW, THEREFORE, for good and valuable consideration, Dominix and
MarketShare, intending to be legally bound, agree as follows:
1. Termination. Subject to the terms and conditions herein stated,
the Stock Purchase Agreement is terminated as of the date of this
Agreement and the parties respective obligations thereunder are
settled.
2. Additional Agreements. As partial consideration for the mutual
releases contained in Section 3 of this Agreement, Dominix and
MarketShare agree as follows:
2.1 Extinguishment of Advance to MarketShare and MarketShare Sub.
The mutual release contained in Section 3 of this Agreement includes an
aggregate $45,567.00 due from MarketShare and MarketShare Sub.
2.2 Database License. MarketShare will cause MarketShare Sub to
enter into and perform the Database License Agreement set forth as
Exhibit B.
2.3 Memorandum of Understanding. Dominix and MarketShare will
enter into a Memorandum of Understanding in the form annexed hereto as
Exhibit C relating to the use and occupancy of certain offices at the
Premises.
3. Mutual Releases. Each party hereto, such party's heirs, assigns
and agents, do hereby fully and forever, release, waive and discharge
each of the parties hereto, and their respective officers, directors,
shareholders, agents, employees, successors and assigns, (hereinafter
collectively referred to as the "Releasees") from and against each and
every claim, demand, cause of action, obligation, damage, complaint,
expense or action of any kind, description or nature whatsoever, known
or unknown, suspected or unsuspected, that each party has or may
hereafter have, against the Releasees arising out of the Stock Purchase
Agreement, any agreement between Dominix and its subsidiaries, on one
side and MarketShare and its subsidiaries, on the other side. This
mutual release specifically excludes the rights and obligations of the
parties under any of the documents described in Section 2 of this
Agreement or any representation, warranty or covenant contained in this
Agreement.
4. Representations of Dominix. Dominix represents, warrants and
agrees that it has the full legal right and power and all authority and
approval required to enter into, execute and deliver this Agreement and
to perform fully their respective obligations hereunder. This Agreement
has been duly executed and delivered by Dominix and, assuming due
execution and delivery by, and enforceability against, MarketShare,
constitutes the valid and binding obligation of Dominix enforceable in
accordance with its terms, subject to the qualifications that
enforcement of the rights and remedies created hereby is subject to (i)
bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors, and
(ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law). No
approval or consent of, or filing with, any governmental or regulatory
body, and no approval or consent of, or filing with, any other person
is required to be obtained by Dominix or in connection with the
execution and delivery by Dominix of this Agreement and consummation
and performance by it of the transactions contemplated hereby. The
execution, delivery and performance of this Agreement by Dominix and
the consummation of the transactions contemplated hereby in accordance
with the terms and conditions hereof by Dominix will not:
(a) knowingly violate, conflict with or result in the breach of any
of the material terms of, or constitute (or with notice or lapse of
time or both would constitute) a material default under, any contract,
lease, agreement or other instrument or obligation to which Dominix is
a party or by or to which any of the properties and assets of Dominix
may be bound or subject;
(b) violate any order, judgment, injunction, award or decree of any
court, arbitrator, governmental or regulatory body, by which either
Dominix or the securities, assets, properties or business of Dominix is
bound; or
(c) knowingly violate any statute, law or regulation.
5. Representations of MarketShare. MarketShare represents, warrants
and agrees that it has the full legal right and power and all authority
and approval required to enter into, execute and deliver this Agreement
and to perform fully their respective obligations hereunder. This
Agreement has been duly executed and delivered by MarketShare and,
assuming due execution and delivery by, and enforceability against,
Dominix, constitutes the valid and binding obligation of MarketShare
enforceable in accordance with its terms, subject to the qualifications
that enforcement of the rights and remedies created hereby is subject
to (i) bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting the rights and remedies of
creditors, and (ii) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
No approval or consent of, or filing with, any governmental or
regulatory body, and no approval or consent of, or filing with, any
other person is required to be obtained by MarketShare or in connection
with the execution and delivery by MarketShare of this Agreement and
consummation and performance by it of the transactions contemplated
hereby. The execution, delivery and performance of this Agreement by
MarketShare and the consummation of the transactions contemplated
hereby in accordance with the terms and conditions hereof by Market-
Share will not:
(a) knowingly violate, conflict with or result in the breach of any
of the material terms of, or constitute (or with notice or lapse of
time or both would constitute) a material default under, any contract,
lease, agreement or other instrument or obligation to which MarketShare
is a party or by or to which any of the properties and assets of
MarketShare may be bound or subject;
(b) violate any order, judgment, injunction, award or decree of any
court, arbitrator, governmental or regulatory body, by which either
MarketShare or the securities, assets, properties or business of
MarketShare is bound; or
(c) knowingly violate any statute, law or regulation.
6. No Admission. The parties agree that the execution of this
Agreement is not an admission by any of them of liability with respect
to damages, except as set forth in this Agreement.
7. Miscellaneous Provisions.
7.1 Severability. In the event that any provision of this Agreement
is found to be illegal or unenforceable by any court or tribunal of
competent jurisdiction, then to the extent that such provision may be
made enforceable by amendment to or modification thereof, the Parties
agree to make such amendment or modification so that the same shall be
made valid and enforceable to the fullest extent permissible under
existing law and public policies in the jurisdiction where enforcement
is sought, and in the event that the Parties cannot so agree, such
provision shall be modified by such court or tribunal to conform, to
the fullest extent permissible under applicable law, to the intent of
the Parties in a valid and enforceable manner, if possible and if not
possible, then be stricken entirely from the Agreement by such court or
tribunal and the remainder of this Agreement shall remain binding on
the parties hereto.
7.2 Amendment. No amendment or modification of the terms or
conditions of this Agreement shall be valid unless in writing and
signed by the party or parties to be bound thereby.
7.3 Governing Law. This Agreement shall be interpreted, construed,
governed and enforced according to the internal laws of the State of
New York without regard to conflict or choice of law principles of New
York or any other jurisdiction. This Agreement shall be executed in
New York and is intended to be performed in New York. In the event of
litigation arising out of this Agreement, the parties hereto consent to
the personal jurisdiction of the State of New York, and agree to
exclusively litigate said actions.
7.4 No Waiver. If any party to this Agreement fails to, or elects
not to enforce any right or remedy to which it may be entitled
hereunder or by law, such right or remedy shall not be waived, nor
shall such nonaction be construed to xxxxxx x x aiver as to any
continued or future acts, nor shall any other right or remedy be waived
as a result thereof. No right under this Agreement shall be waived
except as evidenced by a written document signed by the party waiving
such right, and any such waiver shall apply only to the act or acts
expressly waived in said document.
7.5 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart will, for all purposes, be
deemed an original instrument, but all such counterparts together will
constitute but one and the same Agreement.
7.6 Binding Agreement. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto, and upon their
respective heirs, successors, assigns and legal representatives.
7.7 Counsel. Each of the parties hereto represents that it, she or
he has consulted legal counsel in connection with this Agreement, or has
been given full opportunity to review this Agreement with counsel of his,
her or its choice prior to execution thereof and has elected not to
seek such counsel. The parties hereto waive all claims that they were
not adequately represented in connection with the negotiation, drafting
and execution of this Agreement. Each party further agrees to bear its
own costs and expenses, including attorneys' fees, in connection with
the Action and this Agreement. If any Party initiates any legal action
arising out of or in connection with enforcement of this Agreement, the
prevailing Party in such legal action shall be entitled to recover from
the other Party all reasonable attorneys' fees, expert witness fees and
expenses incurred by the prevailing Party in connection therewith.
7.8 Notices. All notices and demands permitted, required or provided
for by this Agreement shall be made in writing, and shall be deemed
adequately delivered if delivered by hand or by mailing the same via
the United States Mail, prepaid certified or registered mail, return
receipt requested, or by priority overnight courier for next business
day delivery by a nationally recognized overnight courier service that
regularly maintains records of its pick-ups and deliveries and has daily
deliveries to the area to which the notice is sent, addressed to the
parties at their respective addresses as shown below:
Name Address
To Dominix: Dominix, Inc.
00 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx,
President
Facsimile:(000) 000-0000
With a Copy To: Xxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
To MarketShare: MarketShare Recovery, Inc.
00 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Facsimile:(000) 000-0000
Notices delivered personally shall be deemed communicated as of the date
of actual receipt. Notices mailed as set forth above shall be deemed
communicated as of the date three (3) business days after mailing, and
notices sent by overnight courier shall be deemed communicated as of the
date one (1) business day after sending.
7.9 Entire Agreement. This Agreement and the Exhibits hereto set
forth the entire agreement and understanding of the parties hereto in
respect of the subject matter contained herein, and supersedes all prior
agreements, promises, understandings, letters of intent, covenants,
arrangements, communications, representations or warranties, whether oral
or written, by any party hereto or by any related or unrelated third
party. All exhibits attached hereto, and all certificates, documents and
other instruments delivered or to be delivered pursuant to the terms
hereof are hereby expressly made a part of this Agreement, and all
references herein to the terms "this Agreement", "hereunder", "herein",
"hereby" or "hereto" shall be deemed to refer to this Agreement and to
all such writings.
7.10 Successors and Assigns. As used herein the term "the Parties"
shall include their respective successors in interest, licensees or
assigns.
7.11 Documents. At the conclusion of the Action, each Party shall
return to the other all documents and papers produced by the other in
connection with the Action.
7.12 Execution. Each person who signs this Agreement on behalf of a
corporate entity represents and warrants that he has full and complete
authority to execute this Agreement on behalf of such entity. Each party
shall bear the fees and expenses of its counsel and its own out-of-pocket
costs in connection with this Agreement.
7.13 Captions. The captions appearing in this Agreement are for
convenience only, and shall have no effect on the construction or
interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
Executed by the Parties on this 30th day of March, 2004.
DOMINIX, INC.
By:
Name: Xxxxxxx Xxxxxx
Title: President
MARKETSHARE RECOVERY, INC.
By:
Name: Xxxxxxx Xxxxxx
Title: President
