SETTLEMENT AGREEMENT (the "Agreement"), dated as of September 30, 2003,
between Dominix, Inc., with an office located at 00 Xxxxxxxxx Xxxxx, Xxxxxxxxx,
Xxx Xxxx 00000 ("Dominix") and Xxx X. Xxxxxxx residing at 0000 Xxxx 00xx Xxxxxx,
Xxx Xxxxxxx, Xx., 00000 ("TB") and Xxxxx Xxxxxx residing at 000X Xxxxxxxxx Xxxxx
Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 ("JM") (hereinafter referred to as "TB"; JM and
TB, respectively, collectively referred to as "Claimants", individually each a
"Claimant").
WITNESSETH
WHEREAS, TB previously entered into an agreement with the former
management of Dominix pursuant to which he invested $10,000 in Dominix on March
9, 2001 through a Convertible Debenture (the "TB Transaction") and alleges that
he was entitled to repayment of said investment and/or equity from Dominix in
connection therewith; and
WHEREAS, Dominix without agreeing to or denying the claims of TB, wishes
to settle the claims brought by TB with regard to the TB Transaction on the
terms set forth herein and TB wishes to accept such terms of settlement; and
WHEREAS, JM previously entered into an agreement with the former
management of Dominix pursuant to which he invested $25,000 in Dominix on
February 23, 2001 through a Convertible Debenture (the "JM Transaction") and
alleges that he was entitled to repayment of said investment and/or equity from
Dominix in connection therewith; and
WHEREAS, Dominix without agreeing to or denying the claims of JM, wishes
to settle the claims brought by JM with regard to the JM Transaction on the
terms set forth herein and JM wishes to accept such terms of settlement; and
WHEREAS, Dominix has informed TB and JM that it is contemplating a reverse
stock-split of its common stock of between approximately 1-for-150 to 1-for-200
(the "Reverse Split") which it anticipates effecting within 90 days from the
date thereof.
NOW, THEREFORE, for good and valuable consideration, Dominix and each
Claimant intending to be legally bound, agree as follows:
1. Stock Issuance. Within seven (7) business days after the effectiveness
of the contemplated reverse split, Dominix shall issue an aggregate of FIFTY
THOUSAND (50,000) shares of its post reverse common stock (the "Settling
Shares") to Claimants, the proceeds derived from the sale of such Settling
Shares to be distributed to TB and JM, in the percentages as set forth on
Exhibit A hereto. Such Settling Shares to be issued shall be with a restrictive
legend but for purposes of the holding period under Rule 144 under the
Securities Act of 1933, as amended, Dominix acknowledges that the original date
of issuance for the Settling Shares shall be March 9, 2001 for TB and February
23, 2001 for JM. Dominix shall not be in breach of this Agreement if the
issuance of the restricted common stock is delayed because of the failure of the
transfer agent to promptly process the issuance of such restricted common stock
but shall use its good faith best efforts to have such shares delivered
expeditiously. Said Settling Shares are to be accompanied by a Legal Opinion of
Counsel as to their tradability under Rule 144 (Annexed hereto as Exhibit B),
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inasmuch as the tacking period that applies is over one (1) year from the date
of issuance. The Shares shall be deposited into an Escrow Account Solomon Xxxxx
Xxxxxx at 0000 Xxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxx 00000,
attention Xxxx Xxxxxxxxxxxxxx (phone number 000-000-0000) for the benefit of the
Feingold & Kam Escrow Account Number 089-16535 Escrow Agents, with instructions
that the Shares may be sold at a limit of TWENTY THOUSAND (20,000) per week, and
that the instruction of BOTH Xxxxxxx X. Xxxxx, Esq., attorney for Dominix and
Feingold and Kam, attorney for Claimant's must give any new instructions for
trades. A copy of the Instruction Letter is annexed hereto as Exhibit C.
2. General Release. Each Claimant, their respective successors and assigns
and any entity controlled or under the authority of any Claimant and any
Claimant's immediate family members, dependents, personal representatives,
heirs, creditors, executors, administrators, successors, assigns or counsel do
hereby fully and forever, release waive and discharge Dominix, its officers,
directors, shareholders, agents, attorneys, and employees, affiliates, and
subsidiaries, whether past, present, or future (the "Released Parties") from any
and all actions, suits, debts, demands, damages, claims, judgments, or
liabilities of any nature, including costs and attorneys' fees, whether known or
unknown, including, but not limited to, all claims arising out of the TB
Transaction, the JM Transaction, breach of contract; impairment of economic
opportunity; or any claim under common-law or at equity; any tort or claims for
reimbursements or commissions. Each Claimant acknowledges and agrees that this
general release and the covenant not to xxx set forth in this Section 2 are
essential and material terms of this Agreement and that, without such release
and covenant not to xxx, no agreement would have been reached by the parties and
no stock would be issued by Dominix to Claimant's. Each Claimant understands and
acknowledges the significance and consequences of this release and this
Agreement.
(a) Covenant Not to Xxx. To the maximum extent permitted by law, Claimants
covenant not to xxx or to institute or cause to be instituted any action in any
federal, state, or local agency or court against any of the Released Parties,
including but not limited to any of the claims released in paragraph 2 of this
Agreement. In the event of a Claimant's breach of the terms of this Agreement,
without prejudice to Dominix's other rights and remedies available at law or in
equity, except as prohibited by law, Claimants shall be liable for all costs and
expenses (including, without limitation, reasonable attorney's fees and legal
expenses) incurred by any of the Released Parties.
(b) Non-Disclosure. Dominix and each Claimant agree that they shall not
disclose, divulge or furnish to any person or entity the contents of this
Agreement or the circumstances relating to the TB Transaction, the JM
Transaction, except as required by law, or pursuant to valid subpoena, discovery
notice, demand or request, or Court order or process, provided, however, that
Dominix and Claimant's may disclose such information to their attorney,
accountant or as required by law, and as related to the public filings of
Dominix with the Securities and Exchange Commission periodic filing
requirements.
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3. Governing Law. This Agreement shall be interpreted under the laws of
the State of New York. In the event of litigation arising out of this Agreement,
the parties hereto consent to the personal jurisdiction of the State of New
York, County of New York.
4. Binding Agreement. This Agreement represents the entire agreement
between the parties and supercedes all prior agreements, promises,
understandings, letters of intent, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any party hereto or
by any related or unrelated third party. All exhibits attached hereto, and all
certificates, documents and other instruments delivered or to be delivered
pursuant to the terms hereof are hereby expressly made a part of this Agreement,
and all references herein to the terms "this Agreement", "hereunder", "herein",
"hereby" or "hereto" shall be deemed to refer to this Agreement and to all such
writings.
5. Successors and Assigns. As used herein the term "the parties" shall
include their respective successors in interest, licensees or assigns.
6. Execution. Each person who signs this Agreement on behalf of a
corporate entity represents and warrants that he has full and complete authority
to execute this Agreement on behalf of such entity. Each party shall bear the
fees and expenses of its counsel and its own out-of-pocket costs in connection
with this Agreement.
7. Counsel. Each of the parties acknowledges that they have been
represented by counsel of their choice in the negotiation and execution of this
Agreement.
8. Captions. The captions appearing in this Agreement are for convenience
only, and shall have no effect on the construction or interpretation of this
Agreement.
9. Non-Disparagement. Each party mutually agrees to refrain from making
public or private comments or taking any actions which disparage, or are
disparaging, derogatory or negative statements about the other, the business of
any party or the products, policies or decisions of any party, or any present or
former offices, directors or employees of any party or any of its operating
divisions, subsidiaries or affiliates. Further, each party agrees to conduct
themselves at all times in the future in a manner respectful of each other's
rights and privileges and to refrain from engaging in any actions detrimental to
the other's personal and professional welfare.
[Rest of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Dominix and each Claimant has made and entered into
this Settlement Agreement as of the first date set forth above.
DOMINIX, INC.
-------------------------------
By: Xxxxxx X. Xxxxxxxx
Title: Sole Officer and Director
-------------------------------
Xxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx
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STATE OF )
) ss.:
COUNTY OF )
On this day of November, 2003, personally appeared before me Xxx Xxxxxx,
whose identity is personally known to me and who by me duly sworn, did say that
he is the person named herein and that said document was signed by him.
[SEAL]
----------------------
NOTARY PUBLIC
STATE OF )
) ss.:
COUNTY OF )
On this day of November, 2003, personally appeared before me Xxxxx Xxxxxx,
whose identity is personally known to me and who by me duly sworn, did say that
he is the person named herein and that said document was signed by him.
[SEAL]
----------------------
NOTARY PUBLIC
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Exhibit A.
Percentage of Disbursement of Shares Issued to Feingold and Kam as Escrow Agent.
Xxx Xxxxxx 28.6%
Xxxxx Xxxxxx 71.4%
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Exhibit B
Form of Legal Opinion
Xxxxxxx X. Xxxxx, Esq.
Attorney-at-Law
0 Xxxx Xxxxx
Xxxx Xxxxx, Xxx Xxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000
email: xxxxxxx@xxxxxxxxx.xxx
Xxxxxx Xxxxx
Legal Assistant
May 4, 2004
Xx. Xxxxx Xxxxxx, Xx.
Securities Transfer Corp.
0000 Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
RE: DOMINIX, INC, (THE "COMPANY")
Dear Xxxxx:
This office has been requested to render an opinion regarding the removal
of the restrictive legend from Certificate No. , dated November , 2003,
representing 50,000 shares of common stock in the name of Feingold & Kam, Escrow
Agent, issued pursuant to a Settlement Agreement
Pursuant to the Settlement Agreement, the shares are being issued pursuant
to actions taken with respect to the Company in or about March 2001, and that
the holding period started as of that date, but the shares were not issued until
a later date.
For purposes of this opinion, I have been furnished with and have examined
originals or copies, certified or otherwise identified to my satisfaction, of
all such records of the Company, agreements and other instruments, certificates
of officers and representatives of the Company, certificates of public officials
and other documents as I have deemed it necessary to require as a basis for the
opinions hereafter expressed. As to questions of fact material to such opinions,
I have, where relevant facts were not independently established, relied upon
certifications by principal officers of the Company. I have made such further
legal and actual examination and investigation as I deem necessary for purposes
of rendering the following opinion.
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In my examination I have assumed the genuineness of all signatures, the
legal capacity of natural persons, the correctness of facts set forth in
certificates, the authenticity of all documents submitted to me as originals,
the conformity to original documents of all documents submitted to me as
certified or photostatic copies, and the authenticity of the originals of such
copies. I have also assumed that such documents have each been duly authorized,
properly executed and delivered by each of the parties thereto other than the
Company. I have also reviewed, and assume for the purposes of this opinion, the
accuracy of Rule 144 documents and representation letters provided by the
Shareholder and the broker.
It is the opinion of this Firm that the shares listed herein were validly
issued, that the current holder is a holder in due course for value and with
recourse.
I am a member of the bar of the State of New York. My opinions below are
limited to the laws of the State of New York, the General Corporation Law of the
State of Delaware and the federal securities laws of the United States. This
Opinion is limited to use by the Company, the Company's Transfer Agent,
Shareholder named above and the broker involved in the transaction only. No
other entity or individual is entitled to rely upon this opinion, without the
written consent of this Office.
Based on the foregoing, based upon Section c(1) of Rule 144, it is the
opinion of the Firm that said shares have met the requirements of Rule 144, and
the restrictive legend may be removed from the shares and a new certificate
issued without a new certificate issued without said legend to be sold as part
of a "Brokers Transaction."
If you have any questions, please feel free to contact me.
Very truly yours,
Xxxxxxx X. Xxxxx
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Exhibit C
Letter of Instruction for Escrow Account.
November , 2003
Solomon Xxxxx Xxxxxx
0000 Xxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxxxx, Xxxxxxxx 00000
Attn.: Xxxx Xxxxxxxxxxxxxx
Re: Escrow Account of Feingold and Kam and Settlement
Agreement of September 24, 3003 by and Between Xxx Xxxxxx, Xxx
Xxxxxx and Dominix, Inc. ("Dominix")
Dear Sir:
Reference is made to the Settlement Agreement, as indicated above, and the
certain shares of common stock of Dominix Group, Inc., ("the "Shares") to be
deposited into the Escrow Account of Feingold & Kam, along with an opinion of
Counsel as the eligibility to sell the Shares under Rule 144.
Please accept this Letter of Instruction as specific instructions with
respect to the sale of the Shares pursuant to Rule 144.
Pursuant to the Settlement Agreement, Feingold and Kam, the Escrow Agent
may sell for the benefit of Xxx Xxxxxx and Xxx Xxxxxx a maximum of TWENTY
THOUSAND (20,000) Shares per week. The funds are to be distributed as per
instructions from the Escrow Agent.
These instructions shall remain in full force and effect, and pursuant to
the Settlement Agreement may only be modified with the signature of the Escrow
Agent form the firm of Feingold and Kam AND Xxxxxxx X. Xxxxx, P.C. attorney for
Dominix, Inc.
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Executed by the Parties on this ____th day of November, 2003.
DOMINIX, INC.
--------------------------------------
By: Xxxxxx X. Xxxxxxxx
Title: Sole Officer and Director
--------------------------------------
Xxx Xxxxxx
--------------------------------------
Xxxxx Xxxxxx
--------------------------------------
Feingold & Kam, Esq.
Escrow Agent
--------------------------------------
Xxxxxxx X. Xxxxx, P.C.
Attorney for Dominix, Inc.
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