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
95 Broadhollow Road, Melville, New York
(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,
