EXHIBIT 10.1
------------
SETTLEMENT AGREEMENT
This Settlement Agreement (this "Agreement") is dated as of this 25th day
of January, 2005 between XXXxxx.xxx, Inc., a Delaware corporation ("CDK") and
Summit Trading Limited, an international business corporation organized under
the laws of the Bahamas ("STC").
1. CDK entered into a Consulting Agreement with Investor Relations
Services, Inc. (the "Consultant") dated October 20, 2004 (the
"Consulting Agreement").
2. The Company and Consultant, simultaneously with the execution of this
Agreement, will terminate the Consulting Agreement and release each
other from substantially all of their respective obligations under the
terms of the Consulting Agreement.
3. CDK entered into a payment agreement dated October 20, 2004 with STC
(the "Payment Agreement") in which CDK agreed to issue 1,150,000
shares of its common stock to STC in consideration of STC funding the
services and expenses relating to the Consultant's performance under
the Consulting Agreement.
4. Since CDK no longer has financial obligation to Consultant, the
parties wish to terminate the Payment Agreement, on the terms set
forth herein.
NOW, THEREFORE, for good and valuable consideration, the parties, intending
to be legally bound, agree as follows:
1. SETTLEMENT TERMS. Subject to the terms and conditions herein stated, the
parties respective obligations are hereby settled by STC delivering
certificates representing 1,150,000 shares of CDK's common stock (the
"Shares") to CDK, together with stock powers, duly executed in blank and
guaranteed by an eligible guarantor institution (banks, stockbrokers,
savings and loan associations and credit unions with membership in an
approved signature guarantee medallion program) pursuant to S.E.C. Rule
17Ad 15, for the purpose of CDK canceling 1,050,000 of such shares (the
"Settlement Consideration"). The delivery of a copy of this Agreement with
the certificate or certificates representing the Shares with such blank
power attached shall evidence STC's instruction to transfer 1,050,000 of
1,150,00 shares to CDK's treasury, and returning 100,000 shares to STC and
permission for the cancellation of such shares at CDK's option. CDK agrees
that the 100,000 shares will not have any contractual restrictions, but
will continue to bear the standard Rule 144 legend.
2. MUTUAL RELEASES. Each party hereto, such party's heirs, assigns and
agents, do hereby fully and forever, release, waive and discharge each of
the parties hereto, and their respective officers, directors, shareholders,
agents, employees, successors and assigns, (hereinafter collectively
referred to as the "Releasees") from and against each and every claim,
demand, cause of action, obligation, damage, complaint, expense or action
of any kind, description or nature whatsoever, known or unknown, suspected
or unsuspected, that each party has or may hereafter have, against the
Releasees arising out of the Payment Agreement; provided, however, CDK's
release shall not be effective until it has received the Settlement
Consideration and its transfer agents accepts the documentation
1
presented by STC to effect the cancellation or transfer thereof. This
mutual release specifically excludes the rights of CDK and obligations of
STC under Sections 9 and 10 of the Payment Agreement.
3. REPRESENTATIONS OF STC. STC represents, warrants and agrees that STC has
the full legal right and power and all authority and approval required to
enter into, execute and deliver this Agreement and to perform fully his
obligations hereunder. This Agreement has been duly executed and delivered
by STC and, assuming due execution and delivery by, and enforceability
against, CDK constitutes the valid and binding obligation of STC
enforceable in accordance with its terms, subject to the qualifications
that enforcement of the rights and remedies created hereby is subject to
(i) bankruptcy, insolvency, reorganization, moratorium and other laws of
general application affecting the rights and remedies of creditors, and
(ii) general principles of equity (regardless of whether such enforcement
is considered in a proceeding in equity or at law). No approval or consent
of, or filing with, any governmental or regulatory body, and no approval or
consent of, or filing with, any other person is required to be obtained by
STC or in connection with the execution and delivery by STC of this
Agreement and consummation and performance by him of the transactions
contemplated hereby. The execution, delivery and performance of this
Agreement by STC and the consummation of the transactions contemplated
hereby in accordance with the terms and conditions hereof by STC will not:
(a) knowingly violate, conflict with or result in the breach of
any of the material terms of, or constitute (or with notice or lapse
of time or both would constitute) a material default under, any
contract, lease, agreement or other instrument or obligation to which
STC is a party or by or to which any of the properties and assets of
STC may be bound or subject;
(b) violate any order, judgment, injunction, award or decree of
any court, arbitrator, governmental or regulatory body, by which
either STC or the securities, assets, properties or business of STC is
bound; or
(c) knowingly violate any statute, law or regulation.
4. NO ADMISSION. The parties agree that the execution of this Agreement is
not an admission by any of them of liability with respect to damages.
5. MISCELLANEOUS PROVISIONS.
5.1 Severability. In the event that any provision of this Agreement is
found to be illegal or unenforceable by any court or tribunal of competent
jurisdiction, then to the extent that such provision may be made
enforceable by amendment to or modification thereof, the Parties agree to
make such amendment or modification so that the same shall be made valid
and enforceable to the fullest extent permissible under existing law and
public policies in the jurisdiction where enforcement is sought, and in the
event that the Parties cannot so agree, such provision shall be modified by
such court or tribunal to conform, to the fullest extent permissible under
applicable law, to the intent of the Parties
2
in a valid and enforceable manner, if possible and if not possible, then be
stricken entirely from the Agreement by such court or tribunal and the
remainder of this Agreement shall remain binding on the parties hereto.
5.2 Amendment. No amendment or modification of the terms or conditions
of this Agreement shall be valid unless in writing and signed by the party
or parties to be bound thereby.
5.3 Governing Law. This Agreement shall be interpreted, construed,
governed and enforced according to the internal laws of the State of New
York without regard to conflict or choice of law principles of New York or
any other jurisdiction. This Agreement shall be executed in New York and is
intended to be performed in 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, and agree to exclusively litigate
said actions.
5.4 No Waiver. If any party to this Agreement fails to, or elects not
to enforce any right or remedy to which it may be entitled hereunder or by
law, such right or remedy shall not be waived, nor shall such nonaction be
construed to confer a waiver as to any continued or future acts, nor shall
any other right or remedy be waived as a result thereof. No right under
this Agreement shall be waived except as evidenced by a written document
signed by the party waiving such right, and any such waiver shall apply
only to the act or acts expressly waived in said document.
5.5 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart will, for all purposes, be deemed
an original instrument, but all such counterparts together will constitute
but one and the same Agreement.
5.6 Binding Agreement. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, and upon their respective
heirs, successors, assigns and legal representatives.
5.7 Counsel. Each of the parties hereto represents that it, she or he
has consulted legal counsel in connection with this Agreement, or has been
given full opportunity to review this Agreement with counsel of his, her or
its choice prior to execution thereof and has elected not to seek such
counsel. The parties hereto waive all claims that they were not adequately
represented in connection with the negotiation, drafting and execution of
this Agreement. Each party further agrees to bear its own costs and
expenses, including attorneys' fees, in connection with the Action and this
Agreement. If any Party initiates any legal action arising out of or in
connection with enforcement of this Agreement, the prevailing Party in such
legal action shall be entitled to recover from the other Party all
reasonable attorneys' fees, expert witness fees and expenses incurred by
the prevailing Party in connection therewith.
5.8 Notices. All notices and demands permitted, required or provided
for by this Agreement shall be made in writing, and shall be deemed
adequately delivered if
3
delivered by hand or by mailing the same via the United States Mail,
prepaid certified or registered mail, return receipt requested, or by
priority overnight courier for next business day delivery by a nationally
recognized overnight courier service that regularly maintains records of
its pick-ups and deliveries and has daily deliveries to the area to which
the notice is sent, addressed to the parties at their respective addresses
as shown below:
Name Address
To CDK: XXXxxx.Xxx, Inc.
000 XX Xxxxxxx 00
Xxxxx Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx, President
Facsimile: (000) 000-0000
With a Copy To: Xxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
To STC: Summit Trading Limited
Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxx
Nassau, Bahamas
Attn: ________________
Facsimile: ______________________
Notices delivered personally shall be deemed communicated as of the
date of actual receipt. Notices mailed as set forth above shall be deemed
communicated as of the date three (3) business days after mailing, and
notices sent by overnight courier shall be deemed communicated as of the
date one (1) business day after sending.
5.9 Entire Agreement. This Agreement and the Exhibits hereto set forth
the entire agreement and understanding of the parties hereto in respect of
the subject matter contained herein, and supersedes 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.
5.10 Successors and Assigns. As used herein the term "the Parties"
shall include their respective successors in interest, licensees or
assigns.
4
5.11 Documents. At the conclusion of the Action, each Party shall
return to the other all documents and papers produced by the other in
connection with the Action.
5.12 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.
5.13 Captions. The captions appearing in this Agreement are for
convenience only, and shall have no effect on the construction or
interpretation of this Agreement.
[SIGNATURE PAGE FOLLOWS]
5
Executed by the Parties on this 25th day of January, 2005.
CONSULTANT:
SUMMIT TRADING LIMITED
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx, Attorney-in-fact
COMPANY:
XXXXXX.XXX, INC.
By: /s/ Xxxx Xxxxxxxx
---------------------------
Xxxx Xxxxxxxx, President
6
