AGREEMENT
This AGREEMENT, entered into and made effective this 25th day of
January 1997 (the "Execution Date"), by and among (i) Xxxxx X. Xxxxx, an
individual ("Egide"), (ii) a group of investors led by Egide which consist
of the persons identified in Exhibit A to this Agreement ("the Egide
Group"), (iii) Casino World Holdings, Ltd., a Delaware corporation ("CWH"),
(iv) Casino World International Limited ("CWI"), a Delaware corporation,
(v) Cyber Games Limited, an Irish corporation ("CGL"), (vi) Xxxxxxx X.
Xxxx, an individual ("Lang"), (vii) ASDAR, Group, a Nevada Corporation,
("ASDAR"), and (viii) Xxxxxxxx Xxxxxx, an individual ("Xxxxxx"),
(collectively, the "Parties", and individually a "Party"). Egide and the
Egide Group are sometimes referred to collectively herein as the Egide
Parties. CWH, CWI, CGL and Lang are sometimes referred to collectively
herein as the CWH Parties. ASDAR and Xxxxxx are sometimes referred to
collectively herein as the ASDAR Parties.
WHEREAS, by a separate license agreement ("the License"), CWH has
licensed to CGL certain technology relating to the operation of a virtual
casino on the Internet (the "Technology");
WHEREAS, on or about April 29, 1996, ASDAR, by its Secretary and
Director, Xxxxxx and CWH by its Chief Executive Officer, Lang, entered into
a certain letter of intent (the "Letter of Intent") concerning inter alia,
the licensing by ASDAR of the Technology from CWH through CWH's licensee,
CGL;
WHEREAS, in contemplation of a definitive agreement between ASDAR and
CWH based upon the Letter of Intent, the Egide Group advanced to ASDAR the
sum of US $1.15 million and advanced to CWH $300,000 and ASDAR advanced to
CWH through CGL the sum of US $725,000 as evidenced by certain promissory
notes made by CWH and payable to ASDAR as follows (i)$400,000 dated July
22, 1996; (ii) $75,000 dated August 15, 1996, $250,000 dated August 28,
1996 (collectively, the "Promissory Notes");
WHEREAS, pursuant to an Amendment dated July 22, 1996, the Letter of
Intent provides that it expires and is of no force and effect if no
definitive agreement dated between ASDAR and CWH was signed by October 1,
1996;
WHEREAS, no definitive agreement between ASDAR and CWH has been
signed, and CGL and CWH have determined due to certain publicity concerning
ASDAR that it is in their best interest for CGL not to issue any sublicense
under the License to the Technology to ASDAR;
WHEREAS, in contemplation of the execution of this Agreement, CWH sold
to the Egide Group, and the Egide Group has purchased from CWH for
$1,025,000, 410,000 shares of CWH common stock (which $1,025,000 was paid
through cancellation and conversion of the $300,000 unpaid advance, and
assignment to CWH of the Egide Group's claim for $725,000 against ASDAR),
pursuant to the terms of a separate subscription agreement;
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WHEREAS, ASDAR has commenced an action, Case No. 00705687 against CWH,
Lang and Xxxx Xxxxxx in the Superior Court of the State of California,
County of San Diego concerning the Notes; and
WHEREAS, the Parties wish to resolve any and all claims and disputes
between of among them relating to or arising out of License, the Notes, the
Technology and the Letter of Intent, including, without limitation, claims
relating to or arising out of actions contemplated under the Letter of
Intent, or actions taken by reason of the Letter of Intent;
NOW, THEREFORE, in consideration of the mutual promises and agreements
se forth herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties, hereby agree as
follows;
1. Representations and Warranties
------------------------------
Each of the Parties represents and warrants to each of the other
Parties that;
1.1 it is represented by counsel and has made such independent
investigation of the facts pertaining to this Agreement, as it
deems necessary;
1.2 it had read this Agreement and understands its contents;
1.3 it has the power and authority to execute and deliver this
Agreement and perform its obligations hereunder;
1.4 the execution, delivery and performance of this Agreement has
been duly and validity authorized by it;
1.5 upon mutual execution and delivery, this Agreement will
constitute a valid and binding agreement of it; and
1.6 its execution, delivery and performance of this Agreement will
not result in the breach of, or give rise to, the termination of
any other agreement to which it is a party.
Each of the signatories to this Agreement represents and warrants to each
of the Parties that he is authorized to execute this Agreement on behalf
of the persons for whom he is signing the Agreement.
2. Acknowledgment of Right, Title and Interest
-------------------------------------------
2.1 The Parties acknowledge that CWH is the exclusive owner of all
rights to the Technology, including without limitation the
MindWire (TM) and CWH software and improvements thereto. None of
the Parties, except for CWH, has the right to use such Technology
in any manner, including, without limitation, for the operation
of virtual casinos on the Internet, except to the extent that it
is validity licensed to do so by CWH.
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3. Covenants
---------
3.1 ASDAR acknowledges its current indebtedness of $425,000 to the
EGIDE Group and in order to discharge such debt shall issue to
Egide and/or the Egide Group pursuant to a schedule to be
provided to ASDAR by Egide 500,000 shares of its Common Stock and
a note for $50,000 due not later than May 1, 1997, bearing
interest at the rate of eight percent (8%) per annum from July 1,
1996.
3.2 Contemporaneously with the execution of this Agreement, CWH will
convert and cancel ASDAR's $725,000 indebtedness to CWH and ASDAR
will assign the Promissory Notes all rights and liabilities under
them to CWH, pursuant to the assignment agreement attached hereto
as Exhibit B.
3.3 Contemporaneously with the execution of this Agreement, ASDAR
will execute and file the Stipulation of Dismissal with Prejudice
attached hereto as Exhibit C.
3.4 Contemporaneously with the execution of this Agreement, Lang will
issue to Xxxxxx warrants to purchase up to 50,000 shares of CWH
common stock at $2.50 per share and warrants to purchase 200,000
additional shares of CWH common stock at $2.50 per share. The
warrants for the additional 200,000 shares shall be conditional
on the closing of a financing agreement between CWH, Egide, and
the Egide Group or any person or entity referred to CWH by Egide
of not less than $5,000,000. The warrants for all shares are
subject to any restrictions or encumbrances on such shares now
existing or existing at the time the warrant is exercised,
including, without limitation, the pledge of those shares to
secure a debt. The parties precise rights and obligations with
respect to the warrants described herein are set forth in a
separate agreement attached hereto as Exhibit D. Nothing
contained in this paragraph shall, alter or modify, or otherwise
be used to construe or interpret the terms of the separate
agreement attached hereto as Exhibit D;
3.5 Contemporously with the execution of this Agreement, CWH will
issue to Egide warrants to purchase 100,000 shares of CWH common
stock at $2.50 per share, such sale of shares to be pursuant to
the terms of a separate agreement attached hereto as Exhibit X.
Xxxxx has previously received warrants to purchase 500,000 shares
of CWH common stock at $2.50 per share pursuant to the term of
the separate Finders' Fee Agreement; and
3.6 The parties contemplate that there may be a second stage
financing involving the CWH Parties. In the event that such
financing occurs, Egide will use reasonable efforts to assist in
such financing.
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4. Termination of Letter of Intent
-------------------------------
The Letter of Intent is hereby terminated and of no further force or
effect.
5. Mutual Releases and Indemnities
-------------------------------
5.1 By the ASDAR Parties - The ASDAR Parties, and each of their
respective Privies hereby release and forever discharge each and
every other Party and each and all of the other Parties' present
or former Privies, from each and every liability, claim, share,
cause of action, and demand of any sort, whether known or
unknown, contingent, accrued, inchoate, or otherwise, from the
beginning of time up to the Execution Date of this Agreement.
5.2 By the Egide Parties - Egide, on behalf of himself and each and
every person in the Egide Group, and each of their respective
Privies hereby release and forever discharge each and every other
Party and each and all of the Parties' present or former Privies,
from each and every liability, claim, charge, cause of action,
and demand of any sort, whether known or unknown, contingent,
accrued, inchoate, or otherwise, from the beginning of time up to
the Execution Date of this Agreement. Egide represents and
warrants that he is authorized to provide this Release on behalf
of the Egide Group.
5.3 By the CWH Parties - The CWH Parties, and each of their
respective Parties, hereby release and forever discharge each and
every other Party, and each and all of the other Parties' present
or former Privies, from each and every liability, claim, charge,
cause of action, and demand of any sort, whether known or
unknown, contingent, accrued, inchoate, or otherwise, from the
beginning of time to the Execution Date of this Agreement.
5.4 Privies. As used in this Agreement, the term "Privies" refers
to: administrators, affiliates, agents, assigns, attorneys,
consultants, directors, employees, executors, heirs, insurers,
officers, predecessors, principals, representatives, reinsurers,
servants, shareholders, subsidiaries, successors, sureties and
trustees.
5.5 With respect to all releases in this Agreement:
5.5.1. the releases are the results of a compromise and will
never at any time for any purpose be considered an admission as
to the fact or amount of any liability or responsibility of any
of the Parties;
5.5.2 the release does not operate to release any rights, or
obligations arising out of this Agreement, and
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5.5.3 the Parties expressly waive the application of
California Civil Code 1542 and/or any similar state or federal
law. California Civil Code 1542 provides;
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN
HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR.
It is the intention of the Parties that the releases executed
hereunder will be, and remain, in effect as full and complete
releases of those matters set forth in the releases,
notwithstanding the discovery of any additional or different
facts or claims that existed prior to the date of the releases.
5.6 Indemnities
-----------
5.6.1. Each party agrees to defend, indemnify and hold each other
Party harmless from any later assertion of any right or claim which
(i) the indemnifying Party is representing it is releasing hereunder
of (ii) arises out of or is related to any breach by the indemnifying
party of the covenant, representation or warranty hereunder.
5.6.2. In addition to the indemnifying set forth in section 5.6.1,
the ASDAR Parties, jointly and severally agree to indemnify and hold
the CWH Parties harmless from any assertion of any right or claim by
any past or current shareholder of ASDAR arising out of or relating to
violation of any federal or state securities laws and based upon any
act of omission by Xxxxxx or ASDAR, provided, however, that Xxxxxx
shall not be obligated to indemnify Lang, CWH, CWI or CGL for any
attorneys fees relating to any assertion of such right or claim,
except to the extent that he agrees to assume and control the defense
of any action as provided in section 5.6.4.2 below.
5.6.3. In addition to the indemnity set forth in section 5.6.1,
Egide agrees to indemnify and hold the ASDAR Parties and the CWH
Parties from any assertion of any right or claim by any past or
current member of the Egide Group arising out of or relating to
violation of any federal of state securities laws.
5.6.4. Procedure for Indemnification - The following procedures
shall apply to indemnification under this Agreement:
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5.6.4.1 Promptly after receipt by an indemnities of written notice
of the assertion of any claim subject to indemnification, the
indemnities shall give written notice to the indemnitor and shall
thereafter keep the indemnitor reasonably informed with respect
thereto, provided that failure of the indemnities to give the
indemnitor prompt notice as provided herein shall not relieve the
indemnitor of any of its obligations unless such failure materially
prejudices the Indemnitor.
5.6.4.2 The Indemnitor shall be entitled to assume and control the
defense of any action based upon a claim subject to indemnification by
providing written notice to the indemnities within thirty days from
receipt of notice of the commencement of such action of its intention
to do so, with counsel reasonably satisfactory to the indemnities and
at indemnitor's own expense. Notwithstanding the assumptions by the
indemnitor of the defense of any such action as provided herein, the
indemnities shall be permitted to join in the defense of such action
and to employ counsel at its own expense.
5.6.4.3 If the indemnitor shall assume defense of any such action,
it shall not settle such action unless such settlement includes as an
unconditional term thereof, the giving by the claimant of a release of
the indemnities, satisfactory to the indemnities, from all liability
with respect to such action.
5.6.4.4 If the indemnitor fails to notify the indemnities of its
desire to assume the defense of any such action within the prescribed
period of time, then the indemnities may assume the defense of such
action and the indemnitor shall be bound by any determinations made in
such action or any settlement effected by the indemnities.
6. Miscellaneous Provisions
------------------------
6.1 Confidentiality - Neither the terms of this Agreement nor any
non-public information communications and writings between or
among the Parties of their Privies relating to, concerning or
arising from the Letter of Intent or the transactions
contemplated thereby will be disclosed by any Party, except with
the specific written consent of the other Parties, provided,
however, that nothing in this Agreement will be construed to
prevent any Party from disclosing the terms of this Agreement:
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6.1.1 as required by any court or other governmental body,
provided that the disclosing Party will use all reasonable efforts to
obtain confidential treatment of materials so disclosed;
6.1.2 as otherwise required by law, provided that the disclosing
Party uses all reasonable efforts to obtain confidential treatment of
materials so disclosed;
6.1.3 to legal counsel of the Parties, in confidence, to
accountants, banks, and financing sources, and other advisors or
consultants of the Parties;
6.1.4 in connection with the enforcement of this Agreement or
rights under this Agreement, provided that the disclosing Party will
give reasonable advance notice to the other Parties for the purpose of
affording them the opportunity to seek a protective order; or
6.1.5 in confidence, in connection with an actual or proposed
license, merger, acquisition, or similar transaction.
6.2 Entire agreement; amendment - This Agreement is the entire agreement
between the Parties with respect to the matters set forth herein and
supersedes all other prior agreements or understandings, whether
written or oral. No representation, oral or otherwise, express or
implied, other than those expressly set forth herein have been made by
any Party to any other Party concerning the subject matter of this
Agreement. This Agreement may not be modified or amended other than
in writing signed by the Party(ies) whose rights or obligations are
modified or amended.
6.3 Waiver - The failure of a Party to insist upon another Party's strict
adherence to any term of this Agreement on any occasion will not be
construed as a waiver or deprive that Party of the right thereafter to
insist upon strict adherence to that term of any other term or this
Agreement.
6.4 Severability - If any provision or sub-provision of this Agreement is
found invalid of unenforceable, the balance of the Agreement, and all
provisions thereof, will remain in full force and effect.
6.5 Interpretation
6.5.1 All headings throughout this Agreement have been inserted
for the purpose of ease of reference only and do not define, limit or
affect the meaning or interpretation of this Agreement or of any
instrument created pursuant hereto or in accordance herewith.
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6.5.2 Each Party has been provided with an opportunity to
participate in the drafting and preparation of this Agreement.
Therefore, in any construction to be made of this Agreement, the same
will not be construed against any Party.
6.6 Governing Law - This Agreement is governed by, and is to be construed
in accordance with the laws of the State of California, without giving
effect to that State's conflict-of-laws rules.
6.7 Dispute Resolutions - The Parties agree that all disputes,
controversies or claims arising out of, relating to or in connection
with this Agreement, including the formation, breach, default,
termination or invalidity thereof ("Disputes") will be finally settled
under the Commercial Arbitration Rules of the American Arbitration
Association. The Dispute will be decided be a single arbitrator
agreed upon by the Parties. If the Parties are unable to agree upon
an arbitrator within 30 days of the filing of the Demand for
Arbitration, the Parties may agree to have the single arbitrator
appointed by the American Arbitration Association in accordance with
its rules. If the parties do not agree to have a single arbitrator
appointed, the Dispute shall be decided by the majority decision of
three arbitrators. The Claimant(s) and Defendant(s) shall each
appoint one arbitrator with 15 days. The third arbitrator shall be
selected by agreement of the party-appointed arbitrators within 15
days of the appointment of the last to be appointed arbitrator. If
either party fails to select its arbitrator or the party appointed
arbitrators fail to agree upon a third arbitrator, within the time
limit set out above, the missing arbitrator(s) shall be appointed by
the American Arbitration Association in accordance with its rules. The
proceeding will be conducted in San Diego, California in the English
language. The arbitrator(s) will have the power to award costs and
attorneys' fees, and will award attorneys' fees to the prevailing
Party in any arbitration. The Parties waive objection to venue and
submit to the jurisdiction of the United States District Court for the
Southern District of California, for the resolution of any dispute
arising out of or relating to this agreement to arbitrate or the
enforcement thereof, or, in the event that such court does not have
subject matter jurisdiction of any such dispute, the Parties waive
objection to venue and submit to the jurisdiction of the Superior
Court of the State of California, County of San Diego. Prior to the
selection of the arbitral panel, nothing in this agreement to
arbitrate will prevent the Parties from applying to a court that would
otherwise have jurisdiction for provisional or interim measures.
After the arbitral panel is selected, it will have sole jurisdiction
to hear such applications, except that the Parties agree that any
measure ordered by the arbitrator may be immediately and specifically
enforced by a court otherwise having jurisdiction over the Parties.
Each Party hereto hereby agrees that the arbitration procedures
provided herein will be the sole and exclusive method of resolving any
of the aforesaid disputes, controversies or claims.
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6.8 Counterparts - This Agreement may be executed in one or more
counterparts, and, when each Party has signed and delivered at least
one such counterpart, each counterpart shall be deemed an original,
and, when taken together with the other signed counterparts, shall
constitute one Agreement, which shall be binding upon and effective as
to each of the Parties.
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IN WITNESS WHEREOF, the Parties have executed this Agreement or caused this
Agreement to be executed by their duly authorized representatives as of the
date first set out above.
CYBER GAMES LIMITED
/S/ Xxxxxxx X. Xxxxxx By: /S/ Xxxxxxx X. Xxxx
--------------------- ------------------------
Xxxxxxxx X. Xxxxxx Its: Attorney In Fact
ASDAR GROUP
/S/ Xxxxx X. Xxxxx By:/S/ Xxxxxxx X. Xxxxxxxx
-------------------- --------------------------
Xxxxx X. Xxxxx Its: Secretary & Director
EGIDE GROUP
/S/ Xxxxxxx X. Xxxx By: /S/ Xxxxx X. Xxxxx
-------------------- --------------------------
Xxxxxxx X. Xxxx Its: Authorized Agent for the
Group and Each of its Members
CASINOWORLD HOLDINGS, LTD.
By: /S/ Xxxxxxx X. Xxxx
------------------------
Its: CEO
CASINOWORLD
INTERNATIONAL LIMITED
By: /S/ Xxxxxxx X. Xxxx
------------------------
Its: /S/ Attorney in Fact
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EXHIBIT A
EGIDE GROUP
-----------
------------------------------ ------------------------------
Xxxx Xxxx Xxxxxxx Xxxxxxxx
00000 Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
5,000 Shares 5,000 Shares
------------------------------ ------------------------------
Xxxx Xxxxxxxxx Xxxx Xxxxxx
00000 Xxxxxxxx Xxxxxx 000 Xxxxxxxxxx Xx., 00xx Xxx.
Xxxxxxxx Xxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
5,000 Shares 5,000 Shares
------------------------------ ------------------------------
Xxx Xxxxx Xxxxx Xxxxxxxxxx
4820 Quedo Place 0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000 Xxxxxx, XX 00000
5,000 Shares 8,000 Shares
------------------------------ ------------------------------
Xxx Xxxxxxxxxx Xxxx & Xxxxxxx Xxxxxxxxxx
000 Xx. Xxxx Xxxxx 00000 Xxxxx Xxxxxx
Xxxxxxx Xxxxx, XX 00000 Xxx Xxxxxxx, XX 00000
3,000 Shares 5,000 Shares
------------------------------ ------------------------------
Xxx Xxxxxxxxx Xxxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxx 00000 Xxxxxxx Xxxx. #000
Xxxxxxxx Xxxxxxx, XX 00000 Xxxxxx, XX 00000
3,000 Shares 2,000 Shares
------------------------------ ------------------------------
Xxx Xxxxxxxxx Xxxxxx Xxxx
00000 Xxxxxx Xxxxx 000 Xxxxx Xxxxxx
Xxxxxx, XX 00000 Xxxxxxx Xxxxx, XX 00000
3,000 Shares 10,000 Shares
------------------------------ ------------------------------
11
------------------------------ ------------------------------
Xxxx Xxxxxxxxxx Xxxx & Xxxxxxxx Xxx
0000 Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
5,000 Shares 10,000 Shares
------------------------------ ------------------------------
Xxxxx Thirot Calls International, Inc.
0000 Xxxxxxxxx Xxxxxxx 00000 Xxxxxxx Xxxx. #0000
Xxxxxxx, XX 00000 Xxxxxxx Xxxx, XX 00000
10,000 Shares 20,000 Shares
------------------------------ ------------------------------
X.X. Overseas Xxxxxx Xxxxxx
x/x Xxxxx Xxxxxxx 00 Xxx Xxxxxxx
0000 Xxxxx Xxxxx Xxxxx Xxxxxxxxx, XX 00000
Xxxxxxx, XX 00000
60,000 Shares 8,000 Shares
------------------------------ ------------------------------
Xxxxx Campango Xxxxxxx Stuvole
000 Xxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000 Xxxxxxxxxx Xxxxx, XX 00000
40,000 Shares 8,000 Shares
------------------------------ ------------------------------
Marin Catholic High School Xxx Xxxxx
000 Xxx Xxxxxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
25,000 Shares 7,000 Shares
------------------------------ ------------------------------
Xxxxxx Xxxxxxxxxx Prospect Creek Ltd.
00 Xxxxxxxx Xxxxxx x/x Xxx Xxxxxx
Xxxxxx, XX 00000 50th Flr., Xxxxxxxx Xxxxxx
000 Xxxxx Xxxx Xxxx
Xxxx Xxxx
20,000 Shares 50,000 Shares
------------------------------ ------------------------------
Xxx Xxxxx Xxxx Xxx Xxxxx
0 Xxxx Xxxxx Xxxx X.X. Xxx 00000
Xxxxx Xxxxx, XX 00000 Xxxxxx Xxxx, XX 00000
20,000 Shares 15,000 Shares
------------------------------ ------------------------------
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EXHIBIT C
XXXXXXX X. XX XXXXXXXX (CSB #95034)
XXXX X. XXXXXXXX (CSB #167900)
XXXXXXX & XX XXXXXXXX, P.C.
0000 Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx by the Xxx, XX 00000-0000
Telephone: (000) 000-0000
Attorneys for Plaintiff, ASDAR GROUP, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO
SAN DIEGO BRANCH
ASDAR GROUP, INC., a Nevada Corporation, ) CASE NO. 00705687
)
Plaintiff ) STIPULATION
) OF DISMISSAL WITH
v. ) PREJUDICE
) ------------------
)
CASINO WORLD HOLDINGS, LTD., a )
Delaware corporation, XXXXXXX XXXX; )
XXXX XXXXXX and Does 1 to 100, inclusive )
)
Defendants )
----------------------------------------- )
)
)
IT IS HEREBY STIPULATED AND AGREED by and between ASDAR GROUP ("ASDAR") and
CASINO WORLD HOLDINGS, LTD., XXXXXXX XXXX, and XXXX XXXXXX that the
Complaint and each and every claim which was or could have been asserted by
ASDAR in the above captioned action against any of the defendants be, and
the same hereby are, DISMISSED WITH PREJUDICE, each party to bear its own
costs and expenses.
Dated: January 1997,
XXXXX & XxXXXXXX XXXXXXX & XX XXXXXXXX
By:/S/ Xxxxx X. Xxxxx By: /S/ Xxxxxxx X. Xx Xxxxxxxx
------------------ --------------------------
Xxxxx X. Xxxxx Xxxxxxx X. Xx Xxxxxxxx
Xxxx X. Xxxxxxxx
Attorneys for CASINO WORLD HOLDINGS Attorneys for ASDAR GROUP
LTD, XXXXXXX XXXX and XXXX XXXXXX
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