MUTUAL TERMINATION AGREEMENT
AGREEMENT
made and entered into as of this 5th
day of
October 2007 among Organetix, Inc., a Delaware corporation (“OGTX”) and Kid
Fitness, Inc., a New York corporation (“Kid Fitness”). Collectively, OGTX and
Kid Fitness shall be referred to herein as the “Parties”. Capitalized terms used
but not defined herein shall have the meanings assigned to them in the Exchange
Agreement referred to in the first recital.
WITNESSETH
WHEREAS,
on August 13, 2007 OGTX and Kid Fitness and the Exchanging Stockholders (as
defined) entered into a Share Exchange Agreement pursuant to which OGTX would
acquire Kid Fitness’s assets in exchange for majority control in OGTX (the
“Exchange Agreement”); and
WHEREAS,
the Parties have concluded that the Financing cannot be completed on mutually
acceptable terms and as a result, the Parties desire to terminate the Exchange
Agreement pursuant to Section 7.1(e) thereof, upon the terms and conditions
hereinafter set forth.
NOW,
THEREFORE, in consideration of the foregoing premises and covenants, agreements,
representations and warranties herein contained, the parties hereto agree as
follows:
ARTICLE
I
CONSIDERATION
FOR TERMINATION
Section
1.1 Releases.
(a) Kid
Fitness Release of OGTX.
Kid
Fitness and each of its successors and assigns, officers, managers, shareholders
and employees (collectively, “Kid Fitness Releasors”) release OGTX, its
officers, managers, members, employees, successors and assigns, from all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, extents,
executions, claims, and demands whatsoever, in law, admiralty or equity, which
against OGTX, its officers, managers, members, employees, successors and
assigns, the Kid Fitness Releasors ever had, now have or hereafter can, shall
or
may, have for, upon, or by reason of the Exchange Agreement, the termination
thereof or any matter, cause or thing whatsoever from the beginning of the
world
to the day of this Agreement.
(b) OGTX
Release of Kid Fitness.
Each of
OGTX and its respective successors and assigns, officers, managers, shareholders
and employees (collectively, “OGTX Releasors”), as the case may be, release the
Kid Fitness Releasors from all actions, causes of action, suits, debts, dues,
sums of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses, damages,
judgments, extents, executions, claims, and demands whatsoever, in law,
admiralty or equity, which against the Kid Fitness Releasors, the OGTX Releasors
ever had, now have or hereafter can, shall or may, have for, upon, or by reason
of the Exchange Agreement, the termination thereof or any matter, cause or
thing
whatsoever from the beginning of the world to the day of this
Agreement.
ARTICLE
II
TERMINATION
Section
2.1 Termination
of the Exchange Agreement.
Effective the date hereof, each of the Parties hereto agree that the Exchange
Agreement is terminated and shall be of no further force and effect. From and
after the date hereof, none of the Parties shall have any further rights,
obligations or liabilities under the Exchange Agreement. Notwithstanding the
foregoing, the sections intended to survive the Exchange Agreement pursuant
to
Section 7.2 thereof shall continue in full force and effect.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES OF KID FITNESS
The
following representations and warranties are made as of the date hereof by
Kid
Fitness to OGTX:
Section
3.1 Organization,
Good Standing, Corporate Matters.
Kid
Fitness is a corporation duly organized, validly existing and in good standing
under the laws of the state of New York. All necessary corporate action and
all
necessary or appropriate third party approvals and consents for the due
authorization, execution, delivery and performance of this Agreement have been
duly and validly taken or obtained. The execution, delivery and performance
of
this Agreement by each will not violate or result in a breach of or constitute
a
default under its organizational documents, by-laws or any agreement or
instrument to which each is bound, or any judgment, order or decree to which
each is subject. This Agreement constitutes the legal, valid and binding
obligation of Kid Fitness enforceable against it in accordance with its terms,
except as enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws or general principles of equity
relating to creditors’ rights generally.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES BY OGTX
The
following representations and warranties are made as of the date hereof by
OGTX
to Kid Fitness:
Section
4.1 Organization,
Good Standing, Corporate Matters.
OGTX is
a corporation duly organized, validly existing and in good standing under the
laws of Delaware. All necessary corporate action and all necessary or
appropriate third party approvals and consents for the due authorization,
execution, delivery and performance of this Agreement have been duly and validly
taken or obtained. The execution, delivery and performance of this Agreement
by
OGTX will not violate or result in a breach of or constitute a default under
its
organizational documents, by-laws or any agreement or instrument to which OGTX
or its property is bound, or any judgment, order or decree to which OGTX is
subject. This Agreement constitutes the legal, valid and binding obligation
of
OGTX enforceable against it in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws or general principles of equity relating to creditors’
rights generally.
2
Section
4.2. OGTX represents that it has returned to Kid Fitness all due diligence
or
other materials provided to it in connection with the Exchange Agreement or
otherwise and will keep strictly confidential all such materials provided to
it,
it has not entered into any agreement on behalf of Kid Fitness and that OGTX
will make all necessary filings and disclosures required by the securities
laws
or otherwise to reflect the termination of the Exchange Agreement.
ARTICLE
V
MISCELLANEOUS
Section
5.1 Notices.
All
notices, requests and other communications hereunder must be in writing and
will
be deemed to have been duly given only if delivered personally or by facsimile
transmission or mailed (first class postage prepaid) to the parties at the
following addresses or facsimile numbers:
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If
to OGTX:
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Organetix,
Inc.
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x/x
Xxxxxxx, Xxxxxx, Xxxxxx-Xxxx, Xxxxxxxxxx LLP
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000
Xxxxxxx Xxxxxx - 00xx Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Facsimile
No.: (000) 000-0000
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Attn:
Xxxx Xxxx
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With
a copy to:
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Xxxxxxx
X. Xxxxxxxxxx, Esq.
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Sanders,
Ortoli, Xxxxxx-Xxxx, Rosenstadt LLP
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000
Xxxxxxx Xxxxxx - 00xx Xxxxx
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Xxx
Xxxx, Xxx Xxxx 00000
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Facsimile
No.: (000) 000-0000
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If
to Kid Fitness:
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Xxxx
Xxxxxxx
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Chief
Executive Officer
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Kid
Fitness, Inc.
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000
Xxxx Xxxx Xxxxxx
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Xxxx
Xxxxx, XX 00000
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Fax:
(000) 000-0000
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| With a copy to: | Xxxxx X. Xxxxxxx, Esq. | |
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Meyer,
Suozzi, English & Xxxxx, P.C.
000
Xxxxxxx Xxxxxx
Xxxxxx
Xxxx, Xxx Xxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
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All
such
notices, requests and other communications will (i) if delivered personally
to
the address as provided in this Section 5.1, be deemed given upon delivery,
(ii)
if delivered by facsimile transmission to the facsimile number as provided
in
this Section 5.1, be deemed given upon receipt, and (iii) if delivered by mail
in the manner described above to the address as provided in this Section 5.1,
be
deemed given upon receipt (in each case regardless of whether such notice,
request or other communication is received by any other person to whom a copy
of
such notice, request or other communication is to be delivered pursuant to
this
Section 5.1). Any Party from time to time may change its address, facsimile
number or other information for the purpose of notices to that Party by giving
notice specifying such change to the other party hereto.
Section
5.2 Entire
Agreement.
This
Agreement supersedes all prior discussions and agreements between the parties
with respect to the subject matter hereof and contains the sole and entire
agreement between the Parties.
Section
5.3 Expenses.
Each
party will pay its own costs and expenses incurred in connection with the
negotiation, execution and closing of this Agreement.
Section
5.4 Waiver.
Any term
or condition of this Agreement may be waived at any time by the party that
is
entitled to the benefit thereof, but no such waiver shall be effective unless
set forth in a written instrument duly executed by or on behalf of the party
waiving such term or condition. No waiver by any party of any term or condition
of this Agreement, in any one or more instances, shall be deemed to be or
construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion. All remedies, either under this Agreement
or
by law or otherwise afforded, will be cumulative and not
alternative.
Section
5.5 Amendment.
This
Agreement may be amended, supplemented or modified only by a written instrument
duly executed by or on behalf of each party hereto.
Section
5.6 No
Assignment.
This
Agreement may not be assigned.
Section
5.7 Headings.
The
headings used in this Agreement have been inserted for convenience of reference
only and do not define or limit the provisions hereof.
Section
5.8 Invalid
Provisions.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under any present or future law, and if the rights or obligations of any party
hereto under this Agreement will not be materially and adversely affected
thereby, (a) such provision will be fully severable, (b) this Agreement will
be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof and (c) the remaining provisions of this
Agreement will remain in full force and effect and will not be affected by
the
illegal, invalid or unenforceable provision or by its severance
herefrom.
4
Section
5.9 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to a contract executed and performed in such State,
without giving effect to the conflicts of laws principles thereof.
Section
5.10 Counterparts.
This
Agreement may be executed in any number of counterparts, each of which will
be
deemed an original, but all of which together will constitute one and the same
instrument.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the
date first above written.
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ORGANETIX,
INC.
By:
/s/
Xxxx Xxxx
Name:
Xxxx Xxxx
Title:
Chief Executive Officer
KID
FITNESS, INC.
By:
/s/
Xxxx Xxxxxxx
Name:
Xxxx Xxxxxxx
Title:
President
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