EX-10.1






TERMINATION AGREEMENT




	 	 	 	 	 
	Parties:	 	Innotrac Corporation,
a Georgia corporation (the “Company”),
6655 Sugarloaf Parkway,
Duluth, Georgia 30097

	 	 	 	 	GSI Commerce, Inc.,
a Delaware corporation (“Parent”),
935 First Avenue,
King of Prussia, Pennsylvania 19406

	 	 	 	 	Bulldog Acquisition Corp.,
a Georgia corporation (“Acquisition Sub”),
935 First Avenue,
King of Prussia, Pennsylvania 19406

	Date:	 	January 28, 2009







Background



A. The parties hereto are parties to that certain Agreement and Plan of Merger dated as of
October 5, 2008 (the “Merger Agreement”) providing for the merger (the “Merger”) of Acquisition Sub
with and into the Company.



B. The parties desire to terminate the Merger Agreement and abandon the Merger pursuant to
Section 7.1(a) of the Merger Agreement (the “Termination”).



C. The board of directors of each of Parent and the Company have approved the Termination and
the execution of this Termination Agreement.



D. Capitalized terms used and not defined herein shall have the meanings set forth in Exhibit
A of the Merger Agreement.



Intending To Be Legally Bound, in consideration of the mutual agreements contained
herein, the parties hereto agree as follows



1. Termination. Effective as of the date hereof, the parties hereby mutually consent
to the Termination pursuant to Section 7.1(a) of the Merger Agreement, and the Merger Agreement is
hereby terminated and of no further force and effect.



2. Mutual Release. Each of Parent and Acquisition Sub, on the one hand, and Company,
on the other hand (in such capacity, a “Releasing Party”), for itself and on behalf of its parents,
subsidiaries, directors, officers, employees, representatives, agents, predecessors, successors and
assigns (“Related Persons”), hereby fully releases, remises and forever discharges, and covenants
not to sue, to the fullest extent permitted under applicable law, the other party (in such
capacity, the “Released Party”) and its Related Persons of and from any and all actions, causes of
action, suits, liabilities, obligations, debts, accountings, covenants, contracts, agreements,
judgments, claims and demands of any nature, whether at law or in equity, which the Releasing Party
or its Related Persons had, has or hereafter may have against the Released Party and its Related
Persons arising out of and/or relating to the negotiation, execution, delivery, performance,
nonperformance, breach or termination of the Merger Agreement (including, without limitation,
Section 7.2 thereof), any other agreements executed in connection with the Merger Agreement, and
the Merger and the other transactions contemplated thereby. Anything in this Termination Agreement
to the contrary notwithstanding, the Confidentiality Agreement and this Termination Agreement each
shall survive the Termination and shall not be subject to this Section 2.



3. Public Announcement. Parent and Company will issue a mutually agreed upon joint
press release in the form attached hereto as Exhibit A (the “Press Release”) following the signing
of this Termination Agreement with respect to this Termination Agreement and the termination of the
Merger Agreement. Except as required by law or applicable listing requirements, no other press
release or public statement shall be issued or made regarding the termination of the Merger
Agreement by either Parent or Company without the prior written consent of the other.
Notwithstanding the foregoing, both Parent and Company will be permitted to make reference to the
matters addressed in this Termination Agreement or the Press Release in other press releases,
public statements or required filings with the Securities and Exchange Commission, provided that
such references are consistent in substance with the Press Release or are required by applicable
law or listing requirements.



4. Representations and Warranties. Each of Parent and Acquisition Sub, on the one
hand, and Company, on the other hand, represents and warrants to the other party that: (a) it has
full power and authority to enter into this Termination Agreement and to perform its obligations
hereunder, (b) this Termination Agreement has been duly authorized, executed and delivered by such
party, and (c) this Termination Agreement constitutes a legal, valid and binding obligation of such
party, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors’ rights and remedies generally and to general principles of
equity, whether applied in a court of law or a court of equity.



5. Expenses. All fees and expenses incurred in connection with the Merger Agreement
or this Termination Agreement and the transactions contemplated by the Merger Agreement or this
Termination Agreement shall be paid by the party incurring such expenses.



6. Applicable Law. This Termination Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof or any other jurisdiction. In any
action between any of the parties arising out of or relating to this Termination Agreement or any
of the transactions contemplated by this Termination Agreement: (a) each of the parties irrevocably
and unconditionally consents and submits to the exclusive jurisdiction and venue of the state and
federal courts located in the State of Delaware (and agrees not to commence any such action except
in such courts) and irrevocably and unconditionally waives and agrees not to plead or claim in any
such court that any such action brought in such court has been brought in an inconvenient forum;
(b) if any such action is commenced in a state court, then, subject to applicable law, no party
shall object to the removal of such action to any federal court located in the State of Delaware;
(c) each of the parties irrevocably waives the right to trial by jury; and (d) each of the parties
irrevocably consents to service of process by first class certified mail, return receipt requested,
postage prepaid, to the address at which such party is to receive notice in accordance with Section
10.



7. Entire Agreement; Counterparts; No Third Party Beneficiaries; Exchanges by Facsimile or
Electronic Delivery. This Termination Agreement constitutes the entire agreement and supersedes
all prior agreements and understandings, both written and oral, among or between any of the parties
with respect to the subject matter hereof and thereof; provided, however, that the Confidentiality
Agreement shall not be superseded and shall remain in full force and effect. This Termination
Agreement may be executed in several counterparts, each of which shall be deemed an original and
all of which shall constitute one and the same instrument. No provision of this Termination
Agreement is intended to confer upon any Person other than the parties hereto any rights or
remedies hereunder except for Related Persons under Section 2 hereof. The exchange of a fully
executed Termination Agreement (in counterparts or otherwise) by facsimile or by electronic
delivery shall be sufficient to bind the parties to the terms and conditions of this Termination
Agreement.



8. Headings. The section, paragraph and other headings contained in this Termination
Agreement are inserted for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Termination Agreement.



9. Attorneys’ Fees. In any action at law or suit in equity to enforce this
Termination Agreement or the rights of any of the parties hereunder, the prevailing party in such
action or suit shall be entitled to receive a reasonable sum for its attorneys’ fees and all other
reasonable costs and expenses incurred in such action or suit.



10. Notices. All notices, demands, consents, requests, instructions and other
communications to be given or delivered or permitted under or by reason of the provisions of this
Termination Agreement, or in connection with the transactions contemplated hereby and thereby shall
be in writing and shall be deemed to be delivered and received by the intended recipient as
follows: (a) if personally delivered, on the business day after it is received (as evidenced by the
receipt of the personal delivery service); (b) if mailed by certified or registered mail return
receipt requested, four (4) business days after the aforesaid mailing; (c) if delivered by
overnight courier (with all charges having been prepaid), on the second business day after it is
sent (as evidenced by the receipt of the overnight courier service of recognized standing); or (d)
if delivered by facsimile transmission, on the business day of such delivery if confirmed within 48
hours thereafter by a signed original sent in one of the manners set forth in (a) through (c)
above. If any notice, demand, consent, request, instruction or other communication cannot be
delivered because of a changed address of which no notice was given (in accordance with this
Section), or the refusal to accept same, the notice shall be deemed received on the business day
the notice is sent (as evidenced by a sworn affidavit of the sender). All such notices, demands,
consents, requests, instructions and other communications will be sent to the following addresses
or facsimile numbers as applicable: (i) if to Parent or Acquisition Sub: at Parent’s address stated
on page one of this Termination Agreement to the attention of General Counsel (fax # (610)
265-1730), with a copy sent simultaneously to the same address, to the attention of its Chief
Financial Officer (fax # (610) 265-1730), and to Francis E. Dehel, Esquire, Blank Rome LLP, One
Logan Square, Philadelphia, Pennsylvania 19103; telephone: (215) 569-5500, (fax# (215) 832-5532)
and (ii) if to Company, to the address stated on page one of this Termination Agreement to the
attention of the Chairman, President and Chief Executive Officer (fax # (678) 584-8950), with a
copy to David A. Stockton and David M. Eaton, Kilpatrick Stockton LLP, 1100 Peachtree Street, Suite
2800, Atlanta, Georgia (fax # (404) 541-3402 and (404) 541-3188, respectively).



11. Severability. Any term or provision of this Termination Agreement that is held by
a court of competent jurisdiction or other authority to be invalid, void or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final judgment of a court of competent
jurisdiction or other authority declares that any term or provision hereof is invalid, void or
unenforceable, the parties agree that the court making such determination shall have the power to
reduce the scope, duration, area or applicability of the term or provision, to delete specific
words or phrases, or to replace any invalid, void or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision.



12. Construction. The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not be applied in the
construction or interpretation of this Termination Agreement.



13. Specific Performance. Each of the parties agrees that the remedy at law for any
breach of the terms and conditions of this Termination Agreement by it will be inadequate and that
in addition to, and not in limitation of any other remedies that any other party may have either at
law or under this Termination Agreement, such other party shall be entitled to specific performance
or injunctive relief or other equitable relief from any court of competent jurisdiction from any
breach or purported breach of this Termination Agreement.



IN WITNESS WHEREOF, the parties have caused this Termination Agreement to be executed as of
the date first above written.



GSI Commerce, Inc.



By: /s/ Arthur H. Miller  

Name: Arthur H. Miller

Title: Executive Vice President



Bulldog Acquisition Corp.



By:  /s/ Arthur H. Miller  

Name: Arthur H. Miller

Title: Executive Vice President



Innotrac Corporation



By:  /s/ George M. Hare  

Name: George M. Hare

Title: Senior VP and CFO