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.
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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
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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 MarketShare 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.
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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 confer a waiver 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
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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
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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]
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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
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