MUTUAL TERMINATION AGREEMENT
AGREEMENT
made and entered into as of this 5
th 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.
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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 again
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