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.
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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 enf
