TERMINATION AGREEMENT
|
|
|
|
|
|
|
Parties
:
|
|
Innotrac Corporation, a Georgia corporation (the
“Company”), 6655 Sugarloaf Parkway, Duluth, Georgia
30097
|
|
|
|
|
|
GSI Commerce, Inc., a Delaware corporation
(“Parent”), 935 First Avenue, King of Prussia,
Pennsylvania 19406
|
|
|
|
|
|
Bulldog Acquisition Corp., a Georgia corporation
(“Acquisition Sub”), 935 First Avenue, King of Prussia,
Pennsylvania 19406
|
|
Date
:
|
|
|
Background
A. The parties hereto are parties to that
certain Agreement and Plan of Merger dated as of October 5,
2008 (the “Merger Agreement”) providing for the merger
(the “Merger”) of Acquisition Sub with and into the
Company.
B. The parties desire to terminate the
Merger Agreement and abandon the Merger pursuant to
Section 7.1(a) of the Merger Agreement (the
“Termination”).
C. The board of directors of each of Parent
and the Company have approved the Termination and the execution of
this Termination Agreement.
D. Capitalized terms used and not defined
herein shall have the meanings set forth in Exhibit A of the Merger
Agreement.
Intending To Be Legally
Bound , in consideration
of the mutual agreements contained herein, the parties hereto agree
as follows
1. Termination
. Effective as of the date hereof,
the parties hereby mutually consent to the Termination pursuant to
Section 7.1(a) of the Merger Agreement, and the Merger
Agreement is hereby terminated and of no further force and
effect.
2. Mutual Release
. Each of Parent and Acquisition
Sub, on the one hand, and Company, on the other hand (in such
capacity, a “Releasing Party”), for itself and on
behalf of its parents, subsidiaries, directors, officers,
employees, representatives, agents, predecessors, successors and
assigns (“Related Persons”), hereby fully releases,
remises and forever discharges, and covenants not to sue, to the
fullest extent permitted under applicable law, the other party (in
such capacity, the “Released Party”) and its Related
Persons of and from any and all actions, causes of action, suits,
liabilities, obligations, debts, accountings, covenants, contracts,
agreements, judgments, claims and demands of any nature, whether at
law or in equity, which the Releasing Party or its Related Persons
had, has or hereafter may have against the Released Party and its
Related Persons arising out of and/or relating to the negotiation,
execution, delivery, performance, nonperformance, breach or
termination of the Merger Agreement (including, without limitation,
Section 7.2 thereof), any other agreements executed in
connection with the Merger Agreement, and the Merger and the other
transactions contemplated thereby. Anything in this Termination
Agreement to the contrary notwithstanding, the Confidentiality
Agreement and this Termination Agreement each shall survive the
Termination and shall not be subject to this
Section 2.
3. Public Announcement
. Parent and Company will issue a
mutually agreed upon joint press release in the form attached
hereto as Exhibit A (the “Press Release”)
following the signing of this Termination Agreement with respect to
this Termination Agreement and the termination of the Merger
Agreement. Except as required by law or applicable listing
requirements, no other press release or public statement shall be
issued or made regarding the termination of the Merger Agreement by
either Parent or Company without the prior written consent of the
other. Notwithstanding the foregoing, both Parent and Company will
be permitted to make reference to the matters addressed in this
Termination Agreement or the Press Release in other press releases,
public statements or required filings with the Securities and
Exchange Commission, provided that such references are consistent
in substance with the Press Release or are required by applicable
law or listing requirements.
4. Representations and
Warranties . Each of
Parent and Acquisition Sub, on the one hand, and Company, on the
other hand, represents and warrants to the other party that:
(a) it has full power and authority to enter into this
Termination Agreement and to perform its obligations hereunder,
(b) this Termination Agreement has been duly authorized,
executed and delivered by such party, and (c) this Termination
Agreement constitutes a legal, valid and binding obligation of such
party, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting
creditors’ rights and remedies generally and to general
principles of equity, whether applied in a court of law or a court
of equity.
5. Expenses . All fees and expenses incurred in connection
with the Merger Agreement or this Termination Agreement and the
transactions contemplated by the Merger Agreement or this
Termination Agreement shall be paid by the party incurring such
expenses.
6. Applicable Law
. This Termination Agreement shall
be governed by, and construed in accor
