RELEASE AND ASSIGNMENT AGREEMENT
THIS RELEASE AND ASSIGNMENT AGREEMENT (this "Agreement") is
made and entered into as of the 15th day of January 1999 (the
"Effective Date"), by and between Xxxxxx X. Xxxxx, an individual,
and Xxxxxx Xxxxx, an individual (collectively, the "Xxxxxx"), and
Casinovations Incorporated, a Washington corporation (the
"Company", collectively with the Xxxxxx, the "Parties").
RECITALS
WHEREAS, the Company executed a certain replacement promissory
note in the principal amount of $135,047.46 dated August 31, 1998
in favor of Xxxxxx and Xxxxxx Xxxxx (the "Replacement Note");
WHEREAS, the Xxxxxx agreed to sell, transfer, assign and
deliver to the Company and the Company agreed to purchase and
acquire from the Xxxxxx all rights, titles and interests of the
Xxxxxx in and to the certain assets and rights (contractual or
otherwise) of the Xxxxxx, wherever located, as follows: (a)
848,682 shares of the Company's common stock (the "Shares") for
$2.50 per share of common stock; (b) an option to purchase 20,000
shares of Company's common stock (the "Option") for $1.50 per
underlying share of common stock; and (c) the right to receive a
royalty on sales of the Random Ejection Shuffler, Fantasy 21 table
game and the Safety-Peek playing card (the "Royalty) (collectively,
the "Forte Transaction").
WHEREAS, the Forte Transaction was evidenced by a purchase
agreement (the "Purchase Agreement"), a promissory note in the
principal amount of Two Million Three Hundred Fifty One Thousand
Seven Hundred Five and no/100ths Dollars ($2,351,705.00 U.S.) (the
"Note"), a security agreement (the "Security Agreement"), and a
stock pledge agreement (the "Pledge Agreement, collectively, with
the Replacement Note, the Purchase Agreement, the Note and the
Security Agreement, the Forte Documents").
WHEREAS, the execution and delivery of the Forte Documents
were contingent upon the approval by the Nevada State Gaming
Control Board (the "Board") of the Random Ejection Shuffler and the
terms and conditions of the Forte Transaction with such approval
granted by the Board on December 3, 1998.
WHEREAS, the Parties executed a letter agreement dated
December 4, 1998 in which the Parties agreed to, among other
things, cancel the Forte Documents in exchange for a series of
three payments by the Company to the Xxxxxx of $500,000 on December
7, 1998, $500,000 on December 28, 1998 and $250,000 on January 15,
1998 (the "Payments").
WHEREAS, the Company has provided the Xxxxxx with the payment
of $500,000 on December 7, 1998, $500,000 on December 28, 1998 and
$250,000 on January 15, 1999.
WHEREAS, the Parties desire to enter into this Agreement for
the purposes of acknowledging the delivery of the Payments and
releasing the Company from any of its obligations under the Forte
Transaction, the Forte Documents and any other matter related
thereto.
NOW, THEREFORE, for and in consideration of the several and
mutual promises, agreements, covenants, understandings,
undertakings, representations and warranties hereinafter set forth,
and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree that
the Recitals are true and correct and by this reference
incorporated herein as if fully set forth and further covenant and
agree as follows:
ARTICLE I
RELEASE AND ASSIGNMENT
1.1 ASSIGNMENT OF RIGHTS, TITLES, BENEFITS AND INTERESTS
In acknowledging the delivery of the Payments by the Company
to the Xxxxxx, the Xxxxxx hereby (a) deliver to the Company the
original Forte Documents; (b) absolutely and unconditionally
transfer, set over and
assign to the Company the Forte Documents such that such documents
shall be of no further force and effect; (c) absolutely and
unconditionally transfer, set over and assign to the Company all of
the Xxxxxx' acquired rights, titles, benefits and interests
currently owned or hereinafter acquired, as a result of the Forte
Transaction; and (d) forever relinquish to the Company any and all
past, present and future interests, rights or claims, direct or
indirect, in the Forte Documents, the Shares, the Option and the
Royalty.
1.2 RELEASE
For valuable consideration, the sufficiency of which is hereby
acknowledged, the Xxxxxx, each jointly and/or individually, on
behalf of themselves, their respective affiliates, employees,
attorneys, heirs, executors and administrators, hereby remise,
acquit and forever release the Company, and its respective
successors, predecessors, parents, affiliates, subsidiaries,
divisions, including, but not limited to their respective officers,
directors, shareholders, managers, employees, advisors,
consultants, insurers, attorneys, heirs, executors, administrators
and authorized representatives from any and all claims, demands,
damages, debts, liabilities, actions, causes of action or suits of
whatsoever kind or nature, presently known or unknown, actual or
contingent, asserted or unasserted, foreseeable or unforeseeable,
unanticipated or unsuspected, which any of them has or may have now
or in the future, arising directly or indirectly out of or
involving the Shares, the Option, the Royalty, the Forte
Transaction, the Forte Documents and/or this Agreement and any
other matter related thereto, save and except for those matters for
addressed in Section 1.3, the representations and warranties
contained in Article II hereof and, as described in the Letter
Agreement, the mutually acceptable termination of that certain
employment and non-compete agreement by and between the Company and
Xxxxxx Xxxxx dated March 15, 1996, and as amended June 15, 1996.
1.3 FUTURE LITIGATION
The Parties, jointly and/or individually, covenant and agree
to forever refrain from instituting, prosecuting, maintaining, or
assisting with any claims, suits and actions, which arise out of,
or is or may be, in whole or in part, based upon, related to or
connected with this Agreement, the Shares, the Option, the Royalty,
the Forte Transaction, the Forte Documents and any other matter
related thereto as they relate to the Parties.
1.4 FURTHER ASSURANCES
The Parties hereby acknowledge that they will use their best
efforts to take, or cause to be taken, all appropriate action, and
to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and
make effective the transactions contemplated by this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
The Xxxxxx hereby make the following representations and
warranties to the Company and warrant that the following are true
and accurate on the date hereof:
2.1 AUTHORITY
The Xxxxxx have the full right, power, legal capacity and
authority to enter into, and perform its obligations under this
Agreement, including the execution and delivery of this Agreement
and the transfer, assignment, delivery and cancellation of the
Forte Documents in favor of the Company.
2.2 NO ASSIGNMENT
The Xxxxxx hereby represent and warrant that they have not,
either directly or indirectly, transferred, assigned, granted or
otherwise forfeited any interest, claim, lien, pledge, option,
encumbrance, charge, agreement, or other arrangement with respect
to the Forte Documents.
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2.3 DIFFERENCE IN FACTS
The Xxxxxx fully understand that the facts presently known to
them may later be found to be different, and expressly accept and
assume the risk that the facts may be found to be different. The
release and indemnification contained herein shall be effective in
all respects and shall not be subject to termination or rescission
because of any such difference in facts.
2.4 NO VIOLATION
Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the
fulfillment of the terms hereof by the Xxxxxx will conflict with,
or result in a breach of or default under, any of the terms or
provisions of any agreement, note, indenture, mortgage, deed of
trust, instrument lease, franchise or any other understanding to
which Sellers are a party or by which it or any of its assets or
properties are bound.
ARTICLE III
GENERAL PROVISIONS
3.1 ENTIRE AGREEMENT
This Agreement (together with all exhibits, documents,
agreements and instruments executed or furnished in connection
herewith) constitutes the entire agreement between the parties
pertaining to the subject matter hereof, and supersedes any and all
prior or contemporaneous written or oral negotiations, agreements,
representations, and understandings of the parties with respect to
such subject matter.
3.2 EXPENSES
If any legal action or any arbitration or other proceeding is
brought for the enforcement of this Agreement, or because of an
alleged dispute, breach, default, or misrepresentation in
connection with any of the provisions of this Agreement, the
successful or prevailing party or parties shall be entitled to
recover reasonable attorneys' fees and other costs incurred in that
action or proceeding, in addition to any other relief to which it
may be entitled.
3.3 MODIFICATION, AMENDMENT OR WAIVER
This Agreement may not be amended, supplemented or otherwise
modified, and none of its terms may be waived, unless such
amendment, supplement, modification or waiver is in an express
writing and executed by the party or parties to be bound thereby.
The failure of any party at any time or times to require
performance of any provision hereof shall not affect the right of
such party at a later time to enforce the same, and no waiver of
any term or provision hereof on any one occasion shall be deemed to
be a waiver of the same or any other provision hereof at any
subsequent time or times.
3.4 BINDING EFFECT; ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit
of the parties and their respective successors, predecessors,
parents, affiliates, subsidiaries, divisions, officers, directors,
shareholders, employees, advisors, consultants, insurers,
attorneys, heirs, executors, administrators and any persons claim
ing rights by, through or under them; provided, however, that no
assignment of any rights or delegation of any obligations provided
for herein may be made by either party to this Agreement without
the prior written consent of the other party.
3.5 CONSTRUCTION
This Agreement shall be construed in accordance with its
intent and without regard to any presumption or any other rule
requiring construction against the party causing the same to be
drafted.
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3.6 GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada in effect on the
date of this Agreement without resort to any conflict of laws
principles, and the courts of the State of Nevada shall have sole
and exclusive jurisdiction over any matter brought under, or by
reason of, this Agreement.
3.7 SEVERABILITY
If any term, provision, covenant or condition of this
Agreement, or any application thereof, should be held by a court of
competent jurisdiction to be invalid, void or unenforceable, all
terms, provisions, covenants and conditions of this Agreement, and
all applications thereof, not held invalid, void or unenforceable,
shall continue in full force and effect and shall in no way be
affected, impaired or invalidated thereby, provided that the
invalidity, voidness or enforceability of such term, provision,
covenant or condition does not materially impair the ability of the
parties to consummate the transactions contemplated hereby.
3.8 NEUTRAL INTERPRETATION
The provisions contained herein shall not be construed in
favor of or against any party because that party or its counsel
drafted this Agreement, but shall be construed as if all parties
prepared this Agreement, and any rules of construction to the
contrary are hereby specifically waived. The terms of this
Agreement were negotiated at arm's length by the parties hereto.
3.9 COUNTERPARTS
This Agreement may be executed at different times and in
multiple counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first set forth above.
"XXXXXX" THE "COMPANY"
XXXXXX X. XXXXX, an CASINOVATIONS INCORPORATED,
individual a Washington corporation
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxx
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Xxxxxx X. Xxxxx Xxxxxx X. Xxxx
Its: Chief Executive
Officer and President
XXXXXX XXXXX,
an individual
/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx
