Exhibit 2.3
TERMINATION AGREEMENT
This Termination Agreement (this "Agreement") is entered into as of
December 27, 1999 (the "Effective Date"), by and between NewGold, Inc., a
Delaware corporation ("NewGold"), and Business Web, Inc., a Texas corporation
doing business as "Comercis, Inc." ("Comercis"). (NewGold and Comercis are each
sometimes referred to herein as a "Party" and collectively as the "Parties").
RECITALS
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A. WHEREAS, NewGold and Comercis have entered into a Plan of Reorganization
and Merger Agreement, dated as of July 23, 1999, a copy of which is attached as
Exhibit A hereto (the "Merger Agreement"), pursuant to which Comercis was to be
merged with and into NewGold upon the terms and conditions set forth therein
(the "Merger");
B. WHEREAS, NewGold and Comercis have entered into that certain First
Amendment to Plan of Reorganization and Merger Agreement, dated as of October
30, 1999, a copy of which is attached as Exhibit B hereto (the "First
Amendment"), pursuant to which certain time periods relating to the Merger were
extended upon the terms and conditions set forth therein;
C. WHEREAS, the Parties desire to terminate the Merger Agreement and the
First Amendment upon the terms and conditions set forth in this Agreement;
D. WHEREAS, the respective Boards of Directors of the Parties have approved
the execution, delivery and performance of this Agreement and the termination of
the Merger Agreement and the First Amendment upon the terms and conditions set
forth herein; and
E. WHEREAS, Comercis has loaned to NewGold an aggregate of $435,000 (the
"Comercis Loan") and has agreed to pay on behalf of NewGold an aggregate of
$98,796 in attorneys' fees and costs incurred by NewGold in connection with the
Merger Agreement and the transactions contemplated thereby (the "NewGold
Attorneys' Fees");
NOW, THEREFORE, in consideration of the mutual covenants herein and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Parties agree as follows:
AGREEMENT
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1. Termination. The Merger Agreement and the First Amendment are each
hereby terminated as of the Effective Date of this Agreement (the "Termination
Date"), subject to the terms and conditions of this Agreement. The Parties
hereby release each other of and shall not hereafter owe any obligations to each
other under the Merger Agreement and the First Amendment except as specifically
set forth herein.
2. Waiver of Post-Termination Rights. Effective upon the Termination Date,
the Parties hereby waive any rights they may have pursuant to the terms of the
Merger Agreement and the First Amendment after the termination thereof,
provided, however, that any obligations of confidentiality set forth in the
Merger Agreement, the First Amendment or any other agreement between the Parties
shall survive the Termination Date.
3. Issuance of Warrant. As partial consideration for the execution and
delivery of this Agreement, Comercis shall, contemporaneously with the execution
and delivery of this Agreement, execute and deliver to NewGold a warrant (the
"Warrant") to purchase an aggregate of 3,132,794 shares of Common Stock of
Comercis at a purchase price of $3.00 per share. The Warrant shall, at the sole
option of NewGold, be transferable in whole or in part, subject to compliance
with applicable federal and state securities laws. The Warrant shall have such
other terms and conditions substantially as set forth in the form of Warrant
attached as Exhibit C hereto.
4. Secured Promissory Note. As full repayment of the Comercis Loan and the
payment by Comercis of the NewGold Attorneys' Fees, NewGold shall,
contemporaneously with the execution and delivery of this Agreement, issue to
Comercis a Promissory Note in the principal amount of $525,000 substantially in
the form of Exhibit D attached hereto (the "NewGold Note").
5. Mutual General Releases. Each Party, on its own behalf and on behalf of
its successors or assigns, hereby releases and forever discharges the other
Party and the other Party's officers, directors, employees, agents, attorneys,
successors and assigns, from all debts, demands, actions, causes of action,
suits, accounts, covenants, contracts, agreements (except for the provisions of
this Agreement and except as set forth in Section 2 hereof), damages, and any
and all claims, demands and liabilities whatsoever, in law or in equity, whether
now known or unknown, suspected or unsuspected, that such Party has or ever had
until the Termination Date, insofar as such debts, demands, actions, causes of
action, suits, accounts, covenants, contracts, agreements or damages relate to
or arise from the Merger Agreement and/or the First Amendment (collectively, the
"Released Matters"). In connection with such waiver and relinquishment, each of
the Parties acknowledges that it is aware that it or its attorneys or
accountants or other agents may hereafter discover claims or facts in addition
to or different from those which it now knows or believes to exist with respect
to the subject matter of the Merger Agreement and the First Amendment or the
other Parties, but that it intends fully, finally and forever to settle and
release all of the Released Matters. In furtherance of this intention, the
release given herein shall be and remain in effect as a full and complete
release notwithstanding the discovery or existence of any additional or
different claims or facts.
6. Further Assurances. Each of the Parties agrees, without the need for
additional consideration, that it will take such further actions and execute
upon request any further documents as may be reasonably required to fully
effectuate the terms, conditions and intent of this Agreement and to fully vest
in the other Party(ies) the rights and other benefits provided to such other
Party hereunder.
7. Transfer of Obligations. This Agreement shall be binding upon the
Parties and their respective heirs, legal representatives, successors and
assigns.
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8. Severability. In the event that any provision of this Agreement shall be
held unenforceable or invalid, such provision shall be amended and interpreted
so as to best accomplish the economic objectives of the original provision. The
other parts of the Agreement shall remain in full force and effect.
9. Governing Law. This Agreement shall be governed in all respects by the
laws of the State of Texas.
10. Amendments. This Agreement shall not be modified or amended in any
manner except in a writing signed by both Parties.
11. Counterparts. This Agreement may be executed in any number of
counterparts and each executed counterpart shall have the same force and effect
as an original instrument.
12. Entire Agreement. This Agreement constitutes and expresses the entire
agreement of the Parties with respect to the subject matter hereof, and all
prior or collateral discussions, proposals, negotiations and representations,
are merged into and superseded by this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have caused their duly authorized
individuals to execute this Agreement.
NEWGOLD, INC.
By:
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Name: A. Xxxxx Xxxxxxx
Title: President
BUSINESS WEB, INC.
By:
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Name: Xxxxx Xxxxx
Title: Chief Executive Officer
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EXHIBIT A
MERGER AGREEMENT
[attached]
EXHIBIT B
FIRST AMENDMENT
[attached]
EXHIBIT C
FORM OF WARRANT
[attached]
EXHIBIT D
NEWGOLD NOTE
[attached]
