RESCISSION AGREEMENT
This Rescission Agreement (the "Agreement") is made and entered
into as of February 16, 2000, but shall have an effective date of July
19, 1999, by and between InShape International, Inc., formerly known
as Pierce International Discovery, Inc., a corporation organized under
the laws of the State of Nevada (the "Company"), InShape International
Corp., formerly known as InShape International Merger Corp., a Utah
corporation ("InShape"), and
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[INSERT NAMES OF MAJORITY SHAREHOLDERS] of InShape (the
"Shareholders").
RECITALS:
A. On May 5, 1999, the Company, InShape, and the shareholders
of InShape executed that certain Acquisition Agreement, a copy of
which is attached hereto as Amex I (the "Acquisition Agreement").
B. The Company, InShape, and the InShape shareholders were
unable to satisfy each of the conditions set forth in Article 6 and
Article 7 of the Acquisition Agreement.
C. The Company, InShape, and the Shareholders desire to
terminate and rescind the Acquisition Agreement upon the terms set
forth in this Agreement.
D. None of the business of InShape was ever transacted by the
Company and the closing, as defined in the Acquisition Agreement,
never occurred.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company,
InShape, and the Shareholders agree as follows:
1. Rescission of Acquisition Agreement. Effective as of July
19, 1999, the Company, InShape, and the Shareholders hereby rescind
the Acquisition Agreement and agree that the Acquisition Agreement
shall have no force or effect.
2. Stock Ownership of InShape. The Shareholders own
% of the issued and outstanding capital stock of InShape. -----------
3. Certificates. The parties hereto acknowledge that no
certificates of the Company of InShape were exchanged or issued in
connection with the Acquisition Agreement and consequently sections
10.02 (a) and 10.03 (a) were never satisfied.
4. Mutual Release. Upon execution of this Agreement, the
parties, and each of them, including without limitation their
respective directors, officers, partners, shareholders, principals,
employees, agents, trustees, attorneys, predecessors and successors,
parents, subsidiaries and affiliates, divisions, assigns,
representatives, heirs, and executors and administrators, do hereby
acknowledge full and complete satisfaction of, and do hereby fully and
finally settle, release and discharge each other individually and
collectively from any and all claims, demands, rights, liabilities,
contractual obligations, and causes of action of any nature under any
laws of any jurisdiction, known or unknown, fixed or contingent, at
law of in equity, including without limitation any rights of
subrogation, contribution, indemnification, or apportionment that may
exist in law or equity or by contract, that they or any other person
had or have or may have against any of the others arising from, based
upon, relating to, or in connection with the Acquisition Agreement.
5. Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of both the Company, InShape, the
Shareholders, and their respective successors, heirs or legal
representatives.
6. Waiver of Breach. The waiver by any part of a breach or
violation of any provision of this Agreement shall not be effective
unless in writing and such waiver shall not operate as or be construed
to be a waiver of any subsequent breach thereof.
Notices. All notices, demands, and other communications
provided for hereunder shall be in writing (including facsimile or
similar transmission) and mailed by U.S. certified mail, return
receipt requested, postage prepaid), sent or delivered (including by
way or overnight courier service) to the following:
If to the Company: Attn: Nathan W. Drage
6975 South Union Park Center, Suite 600
Salt Lake City, Utah 84047
Fax: (801) 256-9601
If to InShape or the
Shareholders: Attn: William Halls
4220 West 2100 South
Salt Lake City, Utah 84120
Fax: (801) -
All such notices, demands, and communications, if mailed shall be
effective upon the earlier of (i) actual receipt by the addressee,
(ii) the date shown on the return receipt of such mailing, or (iii)
three (3) days after deposit in the mail. All such notices, demands,
and communications, if not mailed, shall be effective upon the earlier
of (i) actual receipt by the addressee, (ii) with respect to facsimile
and similar electronic transmission, the earlier of (x) the time that
electronic confirmation copy of the transmission is received , or (y)
the date of transmission, if a confirming copy of the transmission is
also mailed as described above on the date of transmission, and (iii)
with respect to delivery by overnight courier service, the day after
deposit with the courier service, if delivery on such day by such
courier is confirmed with the courier or the recipient orally or in
writing.
8. Amendments. No amendments or additions to this Agreement
shall be binding unless in writing and signed by all parties.
9. Applicable Laws. This Agreement shall be governed by, and
construed in accordance with, the laws of the state of Utah without
giving effect to the provisions, principles or policies thereof
relating to choice of law or conflict laws. Venue of any legal
proceedings or action relating to this Agreement shall be proper in
Salt Lake County, Utah.
10. Construction. This Agreement has resulted from negotiation
by parties represented by counsel, and in the event of any ambiguity
or otherwise, it shall not be construed against or in favor of any
party on the grounds that counsel for such party was the draftsman or
the Agreement or any particular part of it.
11. Headings. The section headings used in this Agreement are
included solely for convenience of reference and shall not affect, or
by used in connection with, the interpretation of this Agreement.
12. Further Documentation. Each party agrees in good faith to
execute such further or additional documents as may be necessary or
appropriate to fully carry out the intent and purpose of this
Agreement.
13. Counterparts. This Agreement may be executed in any number
of counterparts, each of which will be an original but all of which
will constitute one and the same instrument.. Copies or fax signatures
of this Agreement shall be deemed as originals.
14. Entire Agreement. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter
contained in this Agreement. All prior and contemporaneous
agreements, representations and understandings, of the parties, oral
or written, are superseded by and merged in this Agreement.
IN WITNESS WHEREOF, the parties have affixed their signatures
hereto as of the date first set forth above.
INSHAPE INTERNATIONAL, INC., INSHAPE INTERNATIONAL, INC.,
formerly known as Pierce a Utah Corporation
International Discovery,
Inc., a Utah Corporation
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By: By:
Its: Its:
SHAREHOLDERS
[Insert Shareholder Signature Block]