SHAREHOLDERS' AND VOTING AGREEMENT
by and among
DOMINIX, INC.
and
THE SHAREHOLDERS THAT
ARE SIGNATORIES HERETO
DATED AS OF NOVEMBER 25, 2003
Table of Contents
Page
----
Section 1. Definitions............................................ 1
Section 2. Methodology for Calculations........................... 2
Section 3. Voting Agreement....................................... 2
Section 4. Restrictions on Transfers of Stock..................... 3
Section 5. Tag-Along Rights....................................... 3
5.1. Tag-Along.................................................... 3
5.2. Tag-Along Obligations........................................ 3
5.3. Closing...................................................... 4
Section 6. Certain Covenants...................................... 4
6.1. Financial Statements, Other Information and Access........... 4
6.2. Management Reports........................................... 5
6.4 Board and Committee Notice Requirement....................... 6
6.5 Action by the Board of Directors............................. 6
6.6 Reimbursement of Certain Expenses............................ 6
6.7 Directors' Indemnification; Insurance........................ 6
Section 7. Conflicting Agreements................................. 7
Section 8. Legend................................................. 7
Section 10. Duration of Agreement.................................. 8
Section 11. Further Assurances..................................... 8
Section 12. Amendment and Waiver................................... 8
Section 13. Severability........................................... 9
Section 14. Entire Agreement; Effect on Prior Agreement............ 9
Section 15. Successors and Assigns................................. 9
Section 16. Counterparts........................................... 9
Section 17. Remedies............................................... 9
Section 18. Notices................................................ 9
Section 19. Governing Law, Consent to Jurisdiction................. 10
Section 20. Miscellaneous.......................................... 10
Section 21. Construction........................................... 10
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SHAREHOLDERS' AND VOTING AGREEMENT
THIS SHAREHOLDERS' AND VOTING AGREEMENT (the "Agreement") is made as of
November 25, 2003 by and among DOMINIX, INC., a Delaware corporation (the
"Company"), and each of the shareholders of the Company executing one of the
signature pages attached hereto.
W I T N E S S E T H:
WHEREAS, as of the date hereof, Xxxxxx X. Xxxxxxxx, Xxx Xxxx Xxxx, and
Snapper Partners LLC (the "Investors") own an aggregate of 1,638,666 shares of
the Company's Series A Convertible Preferred Stock, which are convertible into
327,733,200 shares of the Company's Common Stock, par value $.0001 per share
(the "Common Stock"); and
WHEREAS, the principal shareholders listed on the signature page (the
"Principals") of Jade Entertainment Group, Inc., a New York corporation ("Jade")
are receiving 82,167 shares of Series B Convertible Preferred Stock, pursuant to
an Agreement and Plan of Merger by and among Dominix, Inc., Jade Entertainment
Group, Inc., Jade Acquisition Corp. and the Principals; and
WHEREAS, the parties hereto deem it to be in their best interests to enter
into an agreement establishing and setting forth their agreement with respect to
certain rights and obligations associated with ownership of shares of capital
stock of the Company.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
Section 1. Definitions. As used herein, the following terms shall have the
following meanings:
"Affiliate" means (i) with respect to any Person, any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person and (ii) with respect to any individual,
shall also mean the spouse, parent, sibling, child, step-child, or grandchild of
such Person, or the spouse thereof.
"By-laws" means the By-laws of the Company as in effect on the date hereof, as
they may be amended from time to time hereafter.
"Commission" means the U.S. Securities and Exchange Commission.
"Common Stock" means the Common Stock, par value $.01 per share of the Company
and any equity securities issued or issuable with respect to the Common Stock in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization.
"Common Stock Equivalents" means any warrants, options or other securities
convertible into, or exchangeable or exercisable for, shares of Common Stock.
"Company" has the meaning assigned to it in the Preamble.
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"Excluded Securities" means (a) options issued by the Company to a director,
officer or employee of the Company pursuant to any stock option or similar plan
(and any shares of Common Stock issuable thereunder) existing or outstanding as
of the date hereof, or to the extent such arrangements are approved by the Board
of Directors and the Company's shareholders after the date hereof, or (b) shares
of Common Stock issuable upon conversion, exchange or exercise of any Common
Stock Equivalent outstanding as of the date hereof or other Common Stock
Equivalent approved after the date hereof in the manner set forth in clause (a)
above.
"Person" means any individual, corporation, limited liability company, limited
or general partnership, joint venture, association, joint-stock company, trust.
unincorporated organization or government or any agency or political
subdivisions thereof
"Public Sale" means a Transfer pursuant to a bona fide underwritten public
offering pursuant to an effective registration statement filed under the
Securities Act, pursuant to Rule 144 under the Securities Act, or pursuant to
any other provisions of the Securities Act or rules thereunder where subsequent
Transfers would not be subject to Transfer restrictions thereunder.
"Registration Agreement" means the Registration Rights Agreement, dated as of
the date hereof, between the Company and the other parties thereto as it may be
amended from time to time.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholders" means the parties to this Agreement (other than the Company) and
any other subsequent holder of Stock who agrees to be bound by the terms of this
Agreement.
"Stock" means (i) any shares of Common Stock and (ii) any Common Stock
Equivalents, in each case, whether owned on the date hereof or acquired
hereafter by a Shareholder.
"Subsidiary" means with respect to any Person, (i) any corporation, partnership
or other entity of which shares of capital stock or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other similar managing body of such corporation, partnership or other entity are
at the time owned by such Person, or (ii) the management of which is otherwise
controlled, directly or indirectly, through one or more intermediaries by such
Person.
"Transfer" as to any Stock, means to sell or in any way directly or indirectly
transfer, assign, distribute, pledge, encumber or otherwise dispose of, either
voluntarily or involuntarily.
"Voting Shares" means any securities of the Company the holders of which are
generally entitled to vote for members of the Board.
Section 2. Methodology for Calculations. Except as otherwise provided in this
Agreement, for purposes of calculating (i) the amount of outstanding Common
Stock as of any date, (ii) the amount of Common Stock owned by a Person
hereunder and (iii) related percentages, all Common Stock Equivalents shall be
treated as having been converted, exchanged or exercised.
Section 3. Voting Agreement. Each Shareholder shall vote all of its Voting
Shares and shall take all other necessary or desirable actions within its
control (including, without limitation, attending all meetings in person or by
proxy for purposes of obtaining a quorum, executing all written consents in lieu
of meetings and voting to remove members of the Board, as applicable), and the
Company shall take all necessary and desirable actions within its control to
cause to be elected to the Board of Directors the person designated from time to
time by the Investors (including any person designated as a successor to fill
any vacancy arising by reason of the resignation, death, removal or inability to
serve of any designee of the Investors) pursuant to their rights set forth in
Sections 6.1 to 6.7, below.
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Section 4. Restrictions on Transfers of Stock. (a) Except as set forth in
Section 4(b), Principals shall not Transfer any shares of Series B Convertible
Preferred Stock or, upon conversion, any Common Stock (sometimes referred to
collectively as "Securities" or "Stock"), until December 31, 2004; (b) the
restrictions of Section 4(a) shall not apply to a private transfer subject to
the Tag-Along obligation of Section 5, below, or a pledge of Securities in
connection with an institutional loan to Jade; (c) any Transfer or attempted
Transfer of Stock in violation of any provision of this Agreement shall be void,
and the Company shall not record such Transfer on its books or treat any
purported transferee of such Securities as the owner of such Securities for any
purpose.
Section 5. Tag-Along Rights.
5.1. Tag-Along. Principals shall not Transfer any of their Securities
until after December 31, 2004 without complying with the terms and conditions
set forth in this Section 5.
5.2. Tag-Along Obligations. Principals (the "Tag-Along Initiator")
desiring to Transfer any shares of Stock shall give not less than 20 days prior
written notice of such intended Transfer to each of the Investors ("Tag-Along
Offeree") and to the Company. Such notice (the "Tag-Along Notice") shall set
forth the terms and conditions of such proposed Transfer, including the name of
the proposed transferee, the number of shares proposed to be transferred by the
Tag-Along Initiator (the "Tag-Along Shares"), the purchase price per share
proposed to be paid therefor and the payment terms and type of transfer to be
effectuated. Within 10 days after delivery of the Tag-Along Notice by the
Tag-Along Initiator to each Tag-Along Offeree and to the Company, each Tag-Along
Offeree shall, by written notice to the Tag-Along Initiator and the Company,
have the opportunity and right to sell to the transferee in such proposed
Transfer (upon the same terms and conditions as the Tag-Along Initiator) up to
that number of shares of such Stock owned by the Tag-Along Offeree as shall
equal the product of (x) a fraction, the numerator of which is the number of
shares of such Stock owned by the Tag-Along Offeree as of the date of the
Tag-Along Notice and the denominator of which is the aggregate number of shares
of such Stock owned as of the date of the Tag-Along Notice by the Tag-Along
Initiator and all of the Tag-Along Offerees, times (y) the number of shares of
such Stock owned as of the date of the Tag-Along Notice by the Tag-Along
Offeree; provided, however, that the number of shares of Stock to be sold by any
Tag-Along Offeree shall not exceed the same proportion as the number of shares
of Stock to be Transferred by the Tag-Along Initiator bears to the number of
shares of Stock held by the Tag-Along Initiator. The amount of Tag-Along Shares
to be sold by any Tag-Along Initiator shall be reduced to the extent necessary
to provide for such sales of shares by Tag- Along Offerees. No Person may
Transfer shares in any transaction that is subject to this Section 5 unless the
transferee agrees to be bound by and complies with the terms of this Agreement.
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5.3. Closing. At the closing of any proposed Transfer in respect of which
a Tag-Along Notice has been delivered, the Tag-Along Initiator together with all
Tag-Along Offerees electing to sell shares, shall deliver, free and clear of all
liens, to the proposed transferee certificates evidencing the shares to be sold
thereto duly endorsed with transfer powers and shall receive in exchange
therefore the consideration to be paid or delivered by the proposed transferee
in respect of such shares as described in the Tag-Along Notice.
Section 6. Certain Covenants.
6.1. Financial Statements, Other Information and Access. (a) The Company
shall deliver to each Investor:
(i) within 50 days after the end of each quarterly period (other
than the last quarterly period) in each fiscal year,
statements of consolidated operations and cash flows and a
statement of consolidated stockholder's equity of the Company
and its Subsidiaries for the period from the beginning of the
then current fiscal year to the end of such quarterly period,
and a consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarterly period, setting
forth in each case in comparative form figures for the
corresponding period or date in the preceding fiscal year, all
in reasonable detail and certified by the Chief Financial
Officer of the Company, subject to changes resulting from
year-end adjustments; provided, however, that delivery
pursuant to clause (iii) below of a copy of the Quarterly
Report on Form 10-Q of the Company for such quarterly period
filed with the Commission shall be deemed to satisfy the
requirements of this clause (i);
(ii) within 105 days after the end of each fiscal year, statements
of consolidated operations and cash flows and a statement of
changes in consolidated stockholder's equity of the Company
and its Subsidiaries for such year, and a consolidated balance
sheet of the Company and its Subsidiaries as of the end of
such year, setting forth in each case in comparative form the
corresponding figures from the preceding fiscal year, all in
reasonable detail and examined and certified, without
qualification by independent public accountants of recognized
national standing selected by the Company; provided, however,
that delivery pursuant to clause (iii) below of a copy of the
Annual Report on Form 10-K of the Company for such fiscal year
filed with the Commission shall be deemed to satisfy the
requirements of this clause (ii);
(iii) promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports it
sends to its stockholders and copies of all such registration
statements (without exhibits), other than registration
statements relating to employee benefit or dividend
reinvestment plans, and all such regular and periodic reports
as it shall file with the Commission; and
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(iv) with reasonable promptness, such other information
and financial data concerning the Company as any
Person entitled to receive information under this
Section 6.1 may reasonably request.
(b) The Company will permit each Investor and its representatives, upon
reasonable advance notice, to visit and inspect, during normal business hours
and at the Investor's expense, any of the properties of the Company and its
Subsidiaries, to examine the corporate books and make copies or extracts
therefrom and to discuss the affairs, finances and accounts of the Company and
its Subsidiaries with the senior management officers of the Company as well as
the accountants of the Company; provided, that, without the Company's consent,
which shall not be unreasonably withheld, the Investors' right to visit and
inspect the Company's properties shall not exceed four times a year.
6.2. Management Reports. The Company shall promptly deliver to each
Investor (but in any event with ten (10) business days) after the end of each
month, a monthly operations report including a month to month comparative
analysis of revenues and expenses against budget and significant business
matters, as well as copies of all reports or other information provided to the
members of the Board and/or senior management of the Company during such month.
6.3. Right of the Investors to Designate Directors. (a) The Company and
Principals shall cause two people designated by the Investors to be nominated,
and shall use its best efforts to cause such people to be elected (which, in the
case of Principals, shall include Principals' affirmative vote in favor of
Investors' nominee), to the Board of Directors of the Company effective, without
any further action, within five days after such person is designated and at each
annual meeting of stockholders occurring thereafter (people designated by the
Investors pursuant to this Section 6.3 from time to time, a "Investor
Designees"). In connection with any annual meeting of shareholders at which the
term of the Investor Designees is to expire, the Company will take all necessary
action to include the Investor Designees as management's nominees for director
and use the same efforts to cause such Investor Designees to be elected to the
Board of Directors of the Company as are used with respect to management's other
nominees. In the event of any vacancy arising by reason of the resignation,
death, removal or inability to serve of any Investor Designees, the Investors
shall be entitled to designate a successor to fill such vacancy for the
unexpired term. The Company further agrees that the Investors shall be entitled
to designate a non-voting observer to attend and participate in (but not to vote
at) all meetings of the Board of Directors of the Company and any committee of
the Board (the "Non-voting Observer"). The Non-voting Observer shall have the
same access to information concerning the business and operations of the Company
and its Subsidiaries and at the same time as directors of the Company, and shall
be entitled to participate in discussions and consult with the Board of
Directors of the Company without voting. The Investor Designees shall be subject
to the reasonable approval of the Company except if the Investor Designees is
Xxxxxx Xxxxxxxx or a bona fide employee of, or regular consultant to, Investors
or any of their Affiliates (in which case such approval shall not be necessary).
(b) The Company and the Investors acknowledge that the provisions of this
Agreement, including 6.3(a) are intended to provide the Investors with
"Contractual Management Rights" within the meaning of ERISA and the regulations
promulgated thereunder.
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6.4 Board and Committee Notice Requirement. In addition to any
requirements specified in the By-Laws of the Company, the Company shall notify
the Investors, the Investor Designee and the Non-voting Observer, by telecopy,
of (a) every meeting (or action by written consent) of the Board of Directors of
the Company and (b) every meeting (or action by written consent) of the board of
directors of any Subsidiary and of any committee of the Board of Directors of
the Company or any Subsidiary, at least three days in advance of such meeting
(or distribution of written consents).
6.5 Action by the Board of Directors. Without the approval of the Board of
Directors of the Company that includes the affirmative vote of the Investor
Designee, the Company shall not, in a single transaction or a series of related
transactions, at any time after the date hereof, directly or indirectly: (a)
acquire, sell, lease, transfer or otherwise dispose of any assets other than in
the ordinary course of business consistent with past practice, (b) make any
capital expenditure not in accordance with the annual budget approved by the
Company's Board of Directors for the then current fiscal year, (c) amend,
supplement, modify or repeal any provision of the Certificate of Incorporation
or By-Laws of the Company or take any other action, including, without
limitation, the adoption of a stockholders' rights plan or similar plan, or the
consummation of a capital stock repurchase or redemption; (d) modify, extend or
renew the agreements set forth on Schedule A thereto, (e) release, waive or
compromise any claim against the Principals arising out of the Agreement and
Plan of Merger dated November __, 2003, and related agreements; (f) make any
investment in an amount in excess of $500,000; or (g) the creation of any
subsidiary of the Company, any merger or other reorganization involving the
Company, the sale of substantially all of the assets of the Company or the sale
of 51% or more of the shares of any subsidiary thereof.
6.6 Reimbursement of Certain Expenses. The Company shall, upon request
therefor, promptly reimburse the Investor Designee (and, to the extent that the
Investor Designee shall not attend or charge therefor, the Non-voting Observer)
for all reasonable expenses incurred by him in connection with his attendance at
meetings of the Board of Directors or of committees of the Board of Directors
and any other activities undertaken by him in his capacity as a director of the
Company or any Subsidiary or observer, as applicable to the same extent as the
Company would reimburse any other director in respect of such activities. The
foregoing shall be in addition to, and not in lieu of (or in duplication of),
any indemnification or reimbursement obligations of the Company under the
Certificate of Incorporation or By-Laws of the Company or by Law. The Non-voting
Observer shall be entitled to indemnification from the Company to the maximum
extent permitted by Law as though he or she were a director of the Company or
the Subsidiary.
6.7 Directors' Indemnification; Insurance. (a) To the extent commercially
available, the Company shall at all times maintain directors' and officers'
liability insurance comparable in terms and coverage to that maintained on the
date hereof, and the Investor Designee shall be covered under such insurance.
(b) The Certificate of Incorporation, By-laws and other organizational
documents of the Company shall at all times, to the fullest extent permitted by
law, provide for indemnification of, advancement of expenses to, and limitation
of the personal liability of, the members of the Board of Directors of the
Company, and to any Non-Voting Observer as though he or she were a director of
the Company. Such provisions may not be amended, repealed or otherwise modified
in any manner adverse to any member of the Board of Directors or Non-Voting
Observer of the Company until at least six years following the date that the
Investor Designee is no longer a member of the Board of Directors of the
Company.
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(c) The Investor Designee and any Non-Voting Observer is intended to be a
third-party beneficiary of the obligations of the Company pursuant to this
Section 6.7, and the obligations of the Company pursuant to this Section 6.7
shall be enforceable by the Investor Designee and the Non-voting Observer.
Section 7. Conflicting Agreements. Each Shareholder represents and
warrants that such Shareholder has not granted and is not a party to any proxy,
voting trust or other agreement which is inconsistent with or conflicts with any
provision of this Agreement, and no holder of Stock shall grant any proxy or
become party to any voting trust or other agreement which is inconsistent with
or conflicts with any provision of this Agreement.
Section 8. Legend.
(a) Each Principal and the Company shall take all such action necessary
(including exchanging with the Company certificates representing shares of Stock
issued prior to the date hereof) to cause each certificate representing
outstanding shares of Stock beneficially owned by such Principal to bear a
legend containing the following words:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE OFFERED, SOLD, PLEDGED, EXCHANGED, TRANSFERRED OR
OTHERWISE DISPOSED OF (i) UNLESS (A) REGISTERED UNDER SUCH ACT AND ANY
APPLICABLE STATE SECURITIES AND "BLUE SKY" LAWS OR (B) AN OPINION OF COUNSEL
SATISFACTORY TO XXXXXX.XXX, INC. (THE "COMPANY") THAT SUCH REGISTRATION IS NOT
NECESSARY HAS BEEN DELIVERED TO THE COMPANY OR (ii) UNLESS SOLD PURSUANT TO AND
IN COMPLIANCE WITH RULE 144 OF SUCH ACT AND APPLICABLE SECURITIES OR "BLUE SKY"
LAWS."
"IN ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS ON TRANSFER AND TO THE VOTING AGREEMENTS SET FORTH IN THE
SHAREHOLDERS' AND VOTING AGREEMENT DATED AS OF __________, 2003 BY THE COMPANY
AND THE PARTIES THERETO, WHICH EXPIRES ON DECEMBER 31, 2004, A COPY OF WHICH IS
ON FILE IN THE OFFICE OF THE COMPANY."
(b) The requirement that the above securities legend be placed upon
certificates evidencing shares of Stock shall cease and terminate upon the
earliest of the following events: (i) December 31, 2004, (ii) when such shares
are transferred in an underwritten public offering, (iii) when such shares are
transferred pursuant to Rule 144 under the Securities Act or (iv) when such
shares are transferred in any other transaction if the seller delivers to the
Company an opinion of its counsel, which counsel and opinion shall be reasonably
satisfactory to the Company to the effect that such legend is no longer
necessary in order to protect the Company against a violation by it of the
Securities Act upon any sale or other disposition of such shares without
registration thereunder. Upon the consummation of any event requiring the
removal of a legend hereunder, the Company, upon the surrender of certificates
containing such legend, shall, at its own expense, deliver to the holder of any
such shares as to which the requirement for such legend shall have terminated,
one or more new certificates evidencing such shares not bearing such legend.
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Section 9. Representations and Warranties. Each party hereto represents and
warrants to the other parties hereto as follows:
(a) It has full power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) This Agreement has been duly and validly authorized, executed and
delivered by it, and constitutes a valid and binding obligation of it,
enforceable against it in accordance with its terms except to the extent that
enforceability may be limited by bankruptcy, insolvency or other similar laws
affecting creditors' rights generally.
(c) The execution, delivery and performance of this Agreement by it does
not (x) violate, conflict with, or constitute a breach of or default under its
organizational documents, if any, or any material agreement to which it is a
party or by which it is bound or (y) violate any law, regulation, order, writ,
judgment, injunction or decree applicable to it.
(d) No consent or approval of, or filing with, any governmental or
regulatory body is required to be obtained or made by it in connection with the
transactions contemplated hereby.
(e) It is not a party to any agreement which is inconsistent with the
rights of any party hereunder or otherwise conflicts with the provisions hereof.
Section 10. Duration of Agreement. The rights and obligations of the Principals
under this Agreement shall terminate at such time as such Principal no longer is
the beneficial owner of any shares of Stock. This Agreement shall terminate the
earlier of December 31, 2004, or at such time as the Investors own less than
500,000 shares of Common Stock, except that the terms of Sections 7, 14 and 21
shall survive until, by their respective terms, they are no longer operative.
Section 11. Further Assurances. At any time or from time to time after the date
hereof, the parties agree to cooperate with each other, and at the request of
any other party, to execute and deliver any further instruments or documents and
to take all such further action as the other party may reasonably request in
order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties
hereunder.
Section 12. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or any Investor unless such modification,
amendment or waiver is approved in writing by the Company, and Investors,
excluding Principals, owning at least a majority of the outstanding shares of
Stock. The failure of any party to enforce any of the provisions of this
Agreement shall in no way be construed as a waiver of such provisions and shall
not affect the right of such party thereafter to enforce each and every
provision of this Agreement in accordance with its terms.
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Section 13. Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
Section 14. Entire Agreement; Effect on Prior Agreements. Except as otherwise
expressly set forth herein, this document and the other documents dated the date
hereof embodies the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes and preempts any
prior understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any way.
Without limiting the generality of the foregoing, to the extent that any of the
terms hereof are inconsistent with the rights or obligations of any Principal
under any other agreement with the Company, the terms of this Agreement shall
govern.
Section 15. Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and each Principal and their respective
successors, assigns, heirs and personal representatives, so long as they hold
Stock. Except pursuant to a Permitted Transfer or a Transfer of Stock in
compliance with Section 5, no Principal shall have the right to assign its
rights and obligations under this Agreement, without the consent of each of the
other Principals.
Section 16. Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
Section 17. Remedies. Each Principal shall be entitled to enforce its rights
under this Agreement specifically to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that each
party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief
(without posting a bond or other security) in order to enforce or prevent any
violation of the provisions of this Agreement.
Section 18. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the signature pages hereto and to any
subsequent holder of Stock subject to this Agreement at such address as
indicated by the Company's records, or at such address or to the attention of
such other person as the recipient party has specified by prior written notice
to the sending party. Notices will be deemed to have been given hereunder when
delivered personally, three days after deposit in the U.S. mail and one day
after deposit with a reputable overnight courier service. The Company's address
is:
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Dominix, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
with a copy to:
Xxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
The Principals' address for notice purposes is:
The address set forth below their respective names on the signature pages
hereto;
In the case of Principals, with a copy to:
Xxxx Xxxxxx, Esq.
000 Xxxx Xxxxxx Xxxxx 0000
Xxxxx Xxxxx, Xxxxxxx 00000
Telecopy: 305.913.7732
In the case of Investors, with a copy to:
Xxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Section 19. Governing Law, Consent to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
without giving effect to the principles of conflicts of law thereof.
Section 20. Miscellaneous. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
This Agreement is intended to be a voting agreement among stockholders as
permitted by Section 218(c) of the Delaware General Corporation Law.
Section 21. Construction. Where specific language is used to clarify by example
a general statement contained herein, such specific language shall not be deemed
to modify, limit or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction shall be applied against any party.
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[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Shareholders'
and Voting Agreement on the day and year first above written.
DOMINIX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
Xxxxxx X. Xxxxxxxx
Address: 0 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
/s/ Woo Xxxx Xxxx
------------------------------
Woo Xxxx Xxxx
Address:
SNAPPER PARTNERS LLC
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Managing Member
Address:
PRINCIPALS:
/s/ Xxxxxxx Xxxxxx
------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxxx Xxxxxxx
------------------------------
Xxxxxxx Xxxxxxx
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SECURITIES HOLDINGS
Common Stock
Name Title Number Equivalent
---- ----- ------ ----------
Xxxxxx X. Xxxxxxxx Series A Preferred Stock 693,666 138,733,200
Woo Xxxx Xxxx Series A Preferred Stock 400,000 80,000,000
Snapper Partners LLC Series A Preferred Stock 545,000 109,000,000
_________ ___________
TOTAL 1,638,666 327,733,200
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