TERMINATION AGREEMENT AND RELEASE
THIS
TERMINATION AGREEMENT AND RELEASE (the “Agreement”) is made and entered into as
of May 18, 2005, by and among BECOMING ART, INC., a Nevada corporation
(“Parent”), 20/20
ACQUISITION, INC., a Delaware corporation and a wholly-owned subsidiary of
Parent (“Acquisition
Corp.”), and
20/20 TECHNOLOGIES, INC., a Delaware corporation (the “Company”)
(collectively referred to as “Released Parties”). The Released Parties and their
officers, directors, attorneys, agents and affiliates are sometimes referred to
herein individually as a “Party” and collectively as the “Parties.”
BACKGROUND
WHEREAS,
on April 19, 2005,
the Parties entered into an Agreement and Plan of Merger (the “Merger
Agreement”) in which Parent was to acquire all of the outstanding capital
stock of
the Company through the merger (the “Merger”) of Acquisition Corp. and the
Company, with the Company being the surviving corporation.
WHEREAS,
the Merger was subject to certain conditions which have not been met;
and
WHEREAS,
the Parties have agreed that the Merger Agreement and all its related effects
shall be terminated in all respects and that they shall each be returned to
their respective
positions
prior to entering into the Merger Agreement as of the date of this Agreement
(the “Termination” or “Termination Date”); and
WHEREAS,
the Parties hereto desire to set forth their respective rights and obligations
with respect to the Termination;
NOW,
THEREFORE, in consideration of the premises and of the mutual agreements
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency
of which
are hereby acknowledged, the Parties hereby covenant and agree as
follows:
1.
TERMINATION.
(a)
All
rights and obligations between the Parties, including, without limitation, the
Merger Agreement, and any obligations identified in any securities filings made
pursuant thereto, are duly and effectively terminated as of the Termination
Date.
(b)
As a
result of the Termination, the Parties each specifically acknowledge and agree,
without limitation, that:
1.
The
Merger has not occurred and will not occur;
2. No shares
of common stock of any of the Parties have or will be issued or exchanged by or
between the Parties; and
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3. No
officers or directors of any of the Parties have resigned and none of the
officers or directors of the Company have or will be appointed to the board of
directors or as officers of the Parent.
2.
RELEASES.
In exchange for the benefits received under this Agreement, to which they may
not otherwise be entitled, the Parties hereby agree not to pursue or further any
action, cause of action, right, suit, debt, compensation, expense, liability,
contract, controversy, agreement, promise, damage judgment, demand or claim
whatsoever at law or in equity whether known or unknown which they ever had, now
have or hereafter can, shall or may have for, upon or by any reason of any
matter, cause or thing (collectively, “Claims”) whatsoever, occurring up to and
including the date the Parties sign this Agreement against the other Released
Parties, their successors, assigns, partners, representatives and affiliates and
all of their respective employees, agents, officers and directors (the
“Affiliates”) and hereby release, acquit and forever absolutely discharge the
other Released Parties and their Affiliates of and from all of the foregoing,
except with respect to the obligations, covenants and agreements of the Released
Parties set forth in this Agreement.
3.
UNKNOWN
CLAIMS. The Parties acknowledge and agree that the release of Claims described
in Section 2 above (the “Release”) covers all Claims, including, without
limitation, Claims known to the Parties and Claims not known to the Parties. The
Parties acknowledge and agree that they are assuming the risk that the facts may
turn out to be different from what they believe them to be and the Parties agree
that the Release shall be in all respects effective and not subject to
termination or rescission because of any such mistaken belief.
4.
AGREEMENT
NOT TO XXX. The Parties covenant and agree that they shall not file a lawsuit
asserting any of the Claims that are Released in Section 2 above. If either does
so, the Party asserting the Claim agrees to indemnify and hold harmless the
other Parties against any and all fees, costs or expenses (including reasonable
attorneys’ fees), or the portions thereof, incurred by such Parties Released
hereby in defending against the Claim(s).
5.
FURTHER
ACKNOWLEDGMENTS. The Parties further acknowledge and agree that: (a) they have
been represented by or consulted with a licensed attorney prior to executing
this Agreement, (b) they have had the opportunity to read, review and consider
all of the provisions of this Agreement, (c) they understand its provisions and
its final and binding effect on them, and (d) they are entering into this
Agreement freely, voluntarily, and without duress or coercion.
6. GOVERNING
LAW; JURISDICTION. The Parties acknowledge and agree that this Agreement will be
finalized in the State of Nevada, a substantial portion of this Agreement is to
be performed in the State of Nevada, and the substantive laws of the State of
Nevada will govern the enforcement of this Agreement, without regard to its
choice of law rules. The Parties further agree and consent to the jurisdiction
of the federal and state courts in the State of Nevada over any action to
enforce this Agreement.
7.
ENTIRE AGREEMENT, ETC. This Agreement represents the entire understanding
between the Parties, and there are no agreements or understandings which have
not been set forth herein, including, without limitation, the Merger Agreement
and any other agreements or
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certificates
executed or delivered in connection therewith. This Agreement supersedes any
prior understanding, agreement, practice or contract, oral or written, between
the Parties. This Agreement may not be modified except by written instrument
signed by all Parties. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but which together shall constitute one and
the same instrument. This Agreement shall be binding upon the each Party’s
respective heirs, executors, administrators, successors, and
assigns.
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IN
WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be
executed as of the date first above written by their respective officers
thereunto duly authorized.
COMPANY: | ||||
20/20
Technologies, Inc. | ||||
By: |
/s/ Xxxxxxx X. Xxxxx | |||
Xxxxxxx
X. Xxxxx, Chief Executive Officer | ||||
PARENT: | ||||
Becoming
Art, Inc. | ||||
By: |
/s/ Xxxx Xxxxxx | |||
Name: |
Xxxx Xxxxxx | |||
Title: |
President and Chief Executive Officer | |||
ACQUISITION
CORP.: | ||||
20/20
Acquisition Subsidiary, Inc. | ||||
By: |
/s/ Xxxx Xxxxxx | |||
Name: |
Xxxx Xxxxxx | |||
Title: |
Director |
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