Exhibit (2)
TERMINATION AGREEMENT
This Agreement is made as of the 25th day of May 2001 among
MoneyZone.com, a Nevada corporation ("MoneyZone"), Sutton Merger Corp., a
Delaware corporation ("MergerSub"), and Sutton Online, Inc., a Delaware
corporation ("Sutton Online").
WHEREAS, MoneyZone, MergerSub and Sutton Online are parties to that
certain Agreement and Plan of Merger dated as of April 3, 2001 (the "Merger
Agreement"); and
WHEREAS, the parties hereto wish to terminate all rights and
obligations under the Merger Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of such premises and the promises
herein contained, the parties hereto agree as follows:
W-I-T-N-E-S-S-E-T-H:
1. Definitions. Defined terms used herein not otherwise defined shall have the
meaning ascribed to such terms in the Merger Agreement.
2. Termination. MoneyZone, MergerSub and Sutton Online agree that the Merger
Agreement is hereby terminated and shall be of no force and effect on and
after the date hereof, as provided for in Sections 7.1 and 7.2 of the
Merger Agreement.
3. Entire Agreement of Parties. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof,
supersedes any and all prior and/or contemporaneous agreements,
representations, and understandings of the parties whether written or oral
relating to the subject matter hereof.
4. Amendments. The parties of this Agreement understand and agree that this
Agreement may not be altered, amended, modified or otherwise changed in any
respect or particular whatsoever accept by a writing duly executed by the
parties and/or their duly authorized representatives.
5. Severability. The parties agree that if any part, term, or provision of
this Agreement shall be found illegal or in conflict with any valid
controlling law, the validity of the remaining provision shall not be
affected thereby. In any event the legality of any provision of this
Agreement is brought into question because of a decision by a court of
competent jurisdiction of any country in which this Agreement applies,
MoneyZone, by written notice to MergerSub and Sutton Online, may revise the
provision in question or may delete it entirely so as to comply with the
decision of said court.
6. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall be deemed
to be and constitute one and the same instrument.
7. Notices. Any notice that may or shall be delivered to either party
hereunder shall be considered delivered and effective (a) when personally
delivered, (b) when received by facsimile, or (c) when received by courier
or postal service delivery at the following addresses:
If to MoneyZone or to MergerSub, to:
MoneyZone.com
6000 Fairview Road
Suite 1400
Charlotte, North Carolina
Attention: Martin A. Sumichrast
If to Sutton Online, to:
Sutton Online, Inc.
575 Underhill Boulevard
Syosset, New York 11791
Attention: Jonathan D. Siegel
8. Binding on Successors and Assigns. Each and all of the covenants, terms,
provisions and agreements contained in this Agreement shall be binding on,
and inure to the benefit of, the successors, executors, heirs,
representatives, administrators, and assigns of the parties hereto;
provided that any assignment shall be made only with the consent of the
non-assigning party, which consent shall not be unreasonably withheld.
9. No Waiver. No failure to exercise, and no delay in exercising any right,
power or privilege hereunder shall operate as a waiver thereof. No waiver
of any breach of any provisions shall be deemed to be a waiver of any
preceding or succeeding breach of the same or any other provision. No
extension of time or performance of any obligations or other act hereunder
shall be deemed to be an extension of time for performance of any other
obligations or any other act hereunder.
10. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Delaware (without regard to its
conflicts of laws principles). Furthermore, the courts of Delaware (federal
and/or state) shall have exclusive jurisdiction to resolve all disputes
hereunder and it is hereby agreed that such court shall have the right to
award specific performance and/or injunctive relief.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed on and as of the date first above written.
MONEYZONE.COM
By: /s/ RANDALL F. GREENE
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Name: Randall F. Greene
Title: Chief Executive Officer
SUTTON MERGER CORP.
By: /s/ MARTIN A. SUMICHRAST
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Name: Martin A. Sumichrast
Title: Chairman of the Board and
Chief Executive Officer
SUTTON ONLINE, INC.
By: /s/ JONATHAN D. SIEGEL
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Name: Jonathan D. Siegel
Title: Chairman of the Board
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