EXHIBIT 99.1
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SETTLEMENT AGREEMENT, COMPROMISE OF
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CLAIMS AND MUTUAL RELEASE
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1. Parties.
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The parties to this Settlement Agreement, Compromise of Claims, and Mutual
Release (herein, the "Settlement Agreement") are:
A. Xxxxxxx Xxxxxx (" Xxxx Xxxxxx"), Xxxxx Xxxxxxx Xxxxxx ("Xxxxx
Xxxxxx"), Xxxxx Xxxxxx ("Xxxxxx"), the Xxxxx Xxxxxx Irrevocable Trust ("Xxxxxx
Trust"), Xxx Xxxxxx, and Xxxxxxx Xxxxxx (collectively, the "Xxxxxx Parties"),
And
B. American Bingo and Gaming Corp., and its wholly and partly owned
subsidiaries, including, without limitation Columbia One Corp. and MHJ Corp.
("ABG").
2. Intent of Agreement.
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This Settlement Agreement is entered into to fully and finally settle,
compromise and release all claims, causes of action, disagreements, and/or
disputes which exist between the Xxxxxx Parties on the one hand, and ABG on the
other. It is the intent of the Settlement Agreement to resolve all such claims,
causes of action, disagreements and/or disputes, whether they have been asserted
or not, and whether they are known or unknown at the time of the Settlement
Agreement, so that no more claims, disputes or litigation will arise between the
Xxxxxx Parties and ABG.
3. Terms of Settlement.
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3.1 The Xxxxxx Parties will:
A. Pay ABG the net proceeds of the sale of 200,000 shares of common stock
of ABG, of which 115,000 shares shall be provided by Xxxx Xxxxxx out of the
shares owned and held by him, and 85,000 shares shall be provided by Xxxxxx out
of the shares owned and held by her. Such 200,000 shares of ABG common stock
shall be placed with Xxxxxxx Xxxxxxx (or his successor), of Xxxxxxx Xxxxx in
Columbia, South Carolina, for sale on behalf of the Xxxxxx Parties. The Xxxxxx
Parties shall direct Xxxxxxx Xxxxx to sell the shares over a period of 90 days
(between March 1, 1999 and May 31, 1999) from the date of this Settlement
Agreement with sales of no more than 4,000 shares per day; provided, however,
Xxxxxxx Xxxxx may sell more than 4,000 shares on any single day if Xxxxxxx
Xxxxxxx (or his successor) of Xxxxxxx Xxxxx, in his sole discretion, believes
such additional sales will not be disruptive to the market for ABG common stock.
Furthermore, the Xxxxxx Parties shall instruct Xxxxxxx Xxxxx to sell such shares
at the best price available, provided, however, the shares shall in no event be
sold for less than $1.50 per share gross. If, and to the extent, less than the
entire block of 200,000 shares is sold during this 90 day period, the shares
remaining from said block, and not sold, shall be delivered by the Xxxxxx
Parties to ABG within ten (10) business days. The Xxxxxx Parties shall direct
Xxxxxxx Xxxxx to deliver the net proceeds from all sales of such stock to
counsel for the Xxxxxx Parties (Xxxxx Xxxxxx of Xxxxx Xxxxxx Xxxx & Xxxxx,
L.L.P.), who shall immediately forward such funds directly to ABG on behalf of
the Xxxxxx Parties. ABG shall in no event be responsible for the sales,
instructions for sale or approval of sales. ABG shall not be responsible for any
taxes or other liabilities related to such stock, and the Xxxxxx Parties
indemnify ABG against any such liabilities, provided, however, that ABG shall
become responsible for liabilities relating to any stock transferred to ABG
pursuant to paragraph 3.1 A. above, and arising after the time of transfer
thereof. Xxxxxxx Xxxxx shall send copies of all transaction reports related to
the sale of such stock to ABG for informational purposes only. The Xxxxxx
Parties do not admit that they have any liability to ABG, other than as set
forth herein, and do not admit any of the allegations made by ABG against Xxxx
Xxxxxx or any other Xxxxxx Party. This payment is made to settle and compromise
disputed claims.
B. Pay the additional sum of $1300.00 to ABG, specifically as
consideration for the shares of the so-called Founders' Stock originally issued
by ABG to Xxxx and Xxxxx Xxxxxx, Xxxxxx, and the Xxxxxx Trust in or about 1994.
The sum of $1300.00 represents the original issuance price thereof ($860.34),
plus interest at 10% per annum. The Xxxxxx Parties do not admit that they failed
to pay for said Founders' Stock, but wish to compromise and forever put to rest
this issue. Payment of the $1300.00 will be made, to ABG or its designee, within
five (5) days of the effective date of this Settlement Agreement.
C. Execute a proxy for the Xxxxxx Trust in the form attached hereto as
Exhibit "A", transferring to ABG's designee(s) the right to vote all of the
shares held by the Xxxxxx Trust, for a period of five (5) years, or until the
sale of all shares held by the Xxxxxx Trust, commencing on the effective date of
this Settlement Agreement. The existing proxies dated July 29, 1998 from Xxxx
Xxxxxx and Xxxxx Xxxxxx shall remain in full force and effect. Between June 15,
1999, and June 24, 1999, Xxxx Xxxxxx and Xxxxx Xxxxxx will execute and deliver
proxies in the forms attached hereto as Exhibits "B" and "C" respectively,
transferring to ABG's designee(s) the right to vote all of the shares held by
Xxxx and Xxxxx Xxxxxx for a period of five (5) years, or until the sale of all
shares held by them. It is expressly understood and agreed that these proxies
shall not restrict or prevent the sale of ABG stock by any of the Xxxxxx
Parties, and further that these proxies shall be extinguished, upon sale, as to
all shares sold by any of the Xxxxxx Parties, so that all shares sold by any of
the Xxxxxx Parties are sold with full voting and other shareholder rights being
passed to the buyer thereof.
D. Continue to abide by the terms of those certain agreements executed on
or about July 24 , 1998, styled as the Severance Agreement and the Mutual
Release and Settlement Agreement (collectively, the "July 1998 Agreements"),
copies of which are attached hereto as Exhibits "D" and "E" respectively. It is
agreed that the July 1998 Agreements survive the execution of this Settlement
Agreement, and continue in force and effect, provided that, if any provision of
the July 1998 Agreements, or either of them, is deemed to be in conflict with
any provision of this Settlement Agreement, the terms hereof shall control.
E. Dismiss with prejudice that certain action, pending in the Chancery
Court of the State of Delaware, entitled Xxxxxxx Xxxxxx, et al. v. American
Bingo and Gaming Corp., Case No. 16674, by filing a motion therefor within 10
days of the effective date of this Settlement Agreement.
F. Agree to sell within five (5) years from the effective date of this
Settlement Agreement all shares of ABG stock held by them now or hereafter
acquired within 5 years from the effective date of this Agreement with the
following restrictions:
1. No more than 30,000 shares shall be sold in any calendar month
collectively by Xxxx and Xxxxx Xxxxxx and the Xxxxxx Trust in public
market transactions;
2. No more than 3,000 shares shall be sold in any single trading day
collectively by Xxxx and Xxxxx Xxxxxx and the Xxxxxx Trust in public
market transactions;
3. No more than 30,000 shares shall be sold in any calendar month by
Xxxxx Xxxxxx in public market transactions;
4. No more than 3,000 shares shall be sold in any single trading day by
Xxxxx Xxxxxx in public market transactions;
5. The Xxxxxx Parties may sell shares held by them in private or
non-market stock sales (including brokered block sales), provided that
any purchaser of such stock is not a beneficial owner of more than 5%
of ABG common stock based upon beneficial ownership concepts set forth
in the rules of the SEC under Section 13(d) of the Securities Exchange
Act of 1934 prior to the time of the sale, or does not become a
beneficial owner of more than 5% as a result of the sale;
6. Any and all public market transactions, including brokered block
sales, shall be conducted through national or major regional
securities firms that are licensed and in good standing with the NYSE
or NASD.
Provided, however, that the public market sales contemplated under
sub-paragraphs 1, 2, 3, and 4 of this paragraph 3.1 F. may not commence until
June 1999, following the 90 day period for the sale of the 200,000 shares, as
set out in paragraph 3.1 A. above.
G. Withdraw the request of Xxxx Xxxxxx to receive advancement of expenses
for the legal fees and expenses incurred in the litigation with ABG and agree
never to seek or request indemnification or reimbursement for legal fees and
expenses related to the litigation which is being dismissed in connection with
this Settlement Agreement.
3.2 ABG will:
A. Dismiss with prejudice all claims against Xxxx Xxxxxx contained in that
certain action entitled American Bingo and Gaming Corp., et al. v. Xxxx Xxxxxx,
et al., filed in the Circuit Court of South Carolina for Richland County as Case
No. 98-CP-40-3346, which case was removed to the United States District Court
for the District of South Carolina as Case No.3:00-0000-00, and is to be
remanded to the Circuit Court for Richland County. Motion for dismissal of said
claims with prejudice shall be filed in the Circuit Court within 10 days of the
effective date of this Settlement Agreement.
B. Accept the $1300.00 referred to above, and the other consideration
contained herein, as payment in full of all necessary consideration for the
shares of Founders' Stock originally issued to the Xxxxxx Parties, or any of
them; withdraw its claim that any of the common stock of ABG now held or
formerly held by any of the Xxxxxx Parties was or is improperly or defectively
issued, or that it is void or voidable; and acknowledge that the stock owned by
the Xxxxxx Parties is valid and fully paid for, is properly and effectively
issued, and is properly issued and outstanding in the hands of the Xxxxxx
Parties, or any of them.
C. Obtain all necessary corporate approvals for this Settlement Agreement,
including specifically the approval of the Board of Directors of ABG.
D. Continue to abide by the terms of the July 1998 Agreements, copies of
which are attached hereto as Exhibits "D" and "E" respectively. It is agreed
that the July 1998 Agreements survive the execution of this Settlement
Agreement, and continue in force and effect, provided that, if any provision of
the July 1998 Agreements, or either of them, is deemed to be in conflict with
any provision of this Settlement Agreement, the terms hereof shall control.
3.3 Release by ABG. ABG, on behalf of itself, and on behalf of its
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shareholders, officers, directors, employees, affiliates, agents and
representatives (1) , and others claiming by, through, or under them,
hereby voluntarily and knowingly fully and forever,
releases, discharges and acquits the Xxxxxx Parties, and each of them
individually, their heirs and assigns, and their affiliates, agents and
representatives, from any and all claims, actions, lawsuits, promises,
agreements, judgments, liabilities, demands, causes of action, and/or damages,
of whatever kind or character, whether known or unknown, suspected or
unsuspected, pending or threatened, which are related to any matter, fact or
event that has occurred at any time prior to the date of this Agreement. Except
for the obligations contained in this Settlement Agreement, or in the July 1998
Agreements, this release includes any and all claims, demands, or causes of
action based upon intentional, reckless, or negligent torts, defamation,
slander, libel, violations of contract, shareholder derivative suits, breach of
fiduciary duty, fraud, duress, usurpation of corporate opportunity,
misappropriation and/or misapplication of funds, violations of statutory common
law rights for all personal or other injuries, including, without limitation,
actual or punitive damages, costs, penalties, fees or fines, past or future
salary, wages, bonuses, commissions, benefits, or compensation of any sort, past
or future, vested or unvested, accrued or unaccrued, attorney's fees, costs,
pain and suffering, damage to reputation, mental anguish, emotional distress and
other personal or other injury.
(1) It is the intent of this provision that ABG releases claims of
ABG's shareholders, officers, directors, employees, affiliates, agents and
representatives only to the extent that ABG, by its actions, is able to do so,
and only to the extent that such claims are held by these persons in their
respective capacities as shareholders, officers, directors, employees,
affiliates, agents and/or representatives of ABG.
3.4 Release by the Xxxxxx Parties. The Xxxxxx Parties, on behalf of
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themselves, their shareholders, officers, directors, employees, affiliates,
agents and representatives, and others claiming by, through, or under them,
hereby voluntarily and knowingly fully and forever, release, discharge, acquit,
and relinquish ABG, and its officers, directors, employees, assigns, affiliates,
agents and representatives, (2) from any and all claims, actions, lawsuits,
promises, agreements, judgments, liabilities, demands, causes of action, and/or
damages, of whatever kind or character, whether known or unknown, suspected or
unsuspected, pending or threatened, which are related to any matter, fact or
event that has occurred at any time prior to the date of this Agreement. Except
for the obligations contained in this Settlement Agreement or the July 1998
Agreements, this release includes any and all claims, demands, or causes of
action based upon intentional, reckless, or negligent torts, defamation,
slander, libel, violations of contract, shareholder suits, breach of fiduciary
duty, fraud, duress, usurpation of corporate opportunity, misappropriation
and/or misapplication of funds, violations of statutory common law rights for
all personal or other injuries, including, without limitation, actual or
punitive damages, costs, penalties, fees or fines, past or future salary, wages,
bonuses, commissions, benefits, compensation of any sort, past or future, vested
or unvested, accrued or unaccrued, attorney's fees, costs, pain and suffering,
damage to reputation, mental anguish, emotional distress and other personal or
other injury. Provided, however, that any indemnity or related rights which Xxxx
Xxxxxx may have under ABG's bylaws, or Delaware law, relating to his service as
an officer or director of ABG, are neither waived nor enlarged by this
Settlement Agreement, except as provided in paragraph 3.1 G. above.
(2)The intent of the release by the Xxxxxx Parties of ABG's officers, directors,
employees, assigns, affiliates, agents and representatives, is to give releases
to these persons as and to the extent they were acting in such capacities, and
thus to give releases that are the mirror-images of the releases given by ABG
on behalf of these persons in paragraph 3.3 above, as limited by footnote 1
above. The parties intend the releases of, and on behalf of, these persons to be
co-extensive, so that neither is construed to be broader or narrower than the
other.
3.5 No Assignment of Claims and Indemnification. The Xxxxxx Parties and ABG
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represent and warrant that no persons other than they have any right, title, or
interest in and to the claims they have released herein and they hereby
indemnify and hold each other, their officers, directors, employees, agents and
representatives harmless and agree to defend the foregoing against any and all
costs, expenses, or liabilities that may occur as a result of the assertion of
the claims against such parties or parties released by other persons claiming
by, through or under or because of the relationship with the parties
3.6 Remedies. Any provisions hereof for the protection of the parties are
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intended to be for their benefit and enforceable directly by the parties, their
successors and assigns. The parties agree that any remedy at law for any actual
or threatened violation of the terms hereof would be inadequate, and that the
parties shall be entitled to specific performance hereof or injunctive relief or
both, by temporary remedy, writ or order as may be entered by a court of
competent jurisdiction, in addition to any damages that the parties may be
legally entitled to recover, together with reasonable expenses of litigation,
including reasonable attorney's fees incurred in connection therewith, as may be
approved by such court, and the parties further agree to waive any requirement
for the securing or posting of any bond in connection with obtaining of any such
injunctive or equitable relief.
3.7 Entire Agreement/Binding Effect. Except for the July 1998 Agreements,
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this Settlement Agreement supersedes any and all other agreements, either oral
or written between the Xxxxxx Parties on the one hand, and ABG on the other
hand. Except for the July 1998 Agreements, any other prior agreements between
the Xxxxxx Parties on the one hand, and ABG on the other hand, are hereby
terminated by mutual agreement and shall have no further force or effect. This
Settlement Agreement is binding upon the heirs, personal representatives,
agents, successors, assigns, or representatives of, respectively, the Xxxxxx
Parties and ABG.
3.8 Informed/No Inducement. The parties hereby further represent and
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warrant that they have read and fully understand all provisions and effects of
this Agreement and that they have had a sufficient opportunity to discuss
thoroughly this Agreement with anyone they might desire, including attorneys of
their own choice, prior to signing and are being represented with regard to the
matters contained herein by attorneys of their choice. Further, in signing this
Agreement, the parties have not relied on or been induced to execute this
Agreement by any statements, representations, agreements or promises, oral or
written, made by the other party, or their attorneys or agents, other than those
expressly set forth in this Agreement.
3.9 Authority to Bind. The signatories hereto affirm that they are
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authorized and entitled to sign this binding Agreement in their respective
capacities and by so signing, to bind the parties for whom they are signing.
ABG, by signing, affirms that all necessary corporate approvals, including Board
authorization, have been obtained.
3.10 Governing Law. This Settlement Agreement shall be governed by - the
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law of the State of Delaware, and the exclusive venue for any action for
enforcement, interpretation or breach of this Settlement Agreement, or of the
July 1998 Agreements, shall be the Court of Chancery of the State of Delaware,
or other court of competent jurisdiction in the State of Delaware.
3.11 Effective Date. The effective date of this Settlement Agreement shall
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be the date on which all of the Parties have executed this Settlement Agreement.
It is the intent of the agreement to present it for execution within three (3)
days. Counsel for the respective parties shall notify all other counsel when
their parties have executed the Settlement Agreement.
3.12 Multiple Originals. This Settlement Agreement may be executed in
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multiple originals. It is the intent of the parties to obtain two sets of
original signature pages, so that each side may keep an original.
3.13 Legal Fees. The Xxxxxx Parties and ABG acknowledge and agree that each
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party shall be responsible for its own legal fees and expenses incurred in
connection with this Settlement Agreement and the lawsuits and/or claims which
are being dismissed pursuant to this Settlement Agreement.
APPROVED AS TO FORM:
/s/ Xxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXX, XXXXX X. XXXXXXX,
for the Xxxxxx Parties For ABG
SETTLEMENT AGREEMENT, COMPROMISE OF
CLAIMS AND MUTUAL RELEASE
THE ABOVE IS AGREED TO:
February 25 ,1999.
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/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me by Xxxxxxx Xxxxxx on the 25th
day of February, 1999.
/s/ X. X. Xxxxxxxxx
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Notary Public, State of Texas
My Commission Expires: 8-29-2002
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SETTLEMENT AGREEMENT, COMPROMISE OF
CLAIMS AND MUTUAL RELEASE
THE ABOVE IS AGREED TO:
February 25 ,1999.
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/s/ Xxxxx Xxxxxxx Xxxxxx
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XXXXX XXXXXXX XXXXXX
STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me by Xxxxx Xxxxxxx Xxxxxx on the
25th day of February, 1999.
/s/ X. X. Xxxxxxxxx
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Notary Public, State of Texas
My Commission Expires: 8-29-2002
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SETTLEMENT AGREEMENT, COMPROMISE OF
CLAIMS AND MUTUAL RELEASE
THE ABOVE IS AGREED TO:
February 24 ,1999
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/s/ Xxxxx Xxxxxx
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XXXXX XXXXXX
/s/ Xxxxxxx X. Xxxxxxx
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Notary Public for Texas
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My Commission Expires: 10-13-02
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SETTLEMENT AGREEMENT, COMPROMISE OF
CLAIMS AND MUTUAL RELEASE
THE ABOVE IS AGREED TO:
February 24 ,1999
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/s/ Xxxxx Xxxxxx, Trustee
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XXXXX XXXXXX IRREVOCABLE
TRUST, BY XXXXX XXXXXX, TRUSTEE
/s/ Xxxxxxx X. Xxxxxxx
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Notary Public for Texas
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My Commission Expires: 10-13-02
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SETTLEMENT AGREEMENT, COMPROMISE OF
CLAIMS AND MUTUAL RELEASE
THE ABOVE IS AGREED TO:
February 24 ,1999
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/s/ Xxx Xxxxxx
----------------
XXX XXXXXX
/s/ Xxxxxxx X. Xxxxxxx
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Notary Public for Texas
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My Commission Expires: 10-13-02
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SETTLEMENT AGREEMENT, COMPROMISE OF
CLAIMS AND MUTUAL RELEASE
THE ABOVE IS AGREED TO:
February 25 ,1999.
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/s/ Xxxxxxx Xxxxxx
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XXXXXXX XXXXXX
STATE OF TEXAS
COUNTY OF XXXXXX
This instrument was acknowledged before me by Xxxxxxx Xxxxxx on the 25th
day of February, 1999.
/s/ X. X. Xxxxxxxxx
----------------------
Notary Public, State of Texas
My Commission Expires: 8-29-2002
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SETTLEMENT AGREEMENT, COMPROMISE OF
CLAIMS AND MUTUAL RELEASE
THE ABOVE IS AGREED TO:
February 26 , 1999
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AMERICAN BINGO AND GAMING CORP.
By: /s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxx Its Chairman, President and
----------------------- Chief Executive Officer
Notary Public for South Carolina
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My Commission Expires: October 10, 2001
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SETTLEMENT AGREEMENT, COMPROMISE OF
CLAIMS AND MUTUAL RELEASE
THE ABOVE IS AGREED TO:
February 26 , 1999
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SUBSIDIARIES OF AMERICAN BINGO AND GAMING CORP., as listed below
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
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XXXXXX X. XXXXXXXX, XX.,
An authorized officer of each of
the listed subsidiaries
/s/ Xxxxxx X. Xxxxxx
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Notary Public for South Carolina
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My Commission Expires: October 10, 2001
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ALABAMA CORPORATIONS TEXAS CORPORATIONS
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1. Bing-O-Rama, Inc. 1. 1919 Riverside Corp.
2. Charity Bingo, Inc. 2. Ambler Bingo, Inc.
3. Charity Bingo-Birmingham, Inc. 3. Americana I, Inc.
4. Americana II, Inc.
5. Americana III, Inc.
FLORIDA CORPORATIONS 6. Americana IV, Inc.
--------------------- 7. Charity Bingo of Texas, Inc.
1. Delray Hall For Hire, Inc. 8. Lavaca Enterprises,Incorporated
9. Lucky Bingo, Inc.
10. Xxxxx Management Company
GEORGIA CORPORATIONS 11. Parkway Bingo, Inc.
--------------------- 12. S.A. Charities, Inc.
13. Strike It Rich Bingo, Inc.
1. Lucky 4, Inc. 14. Texas Charities, Inc.
15. The Samaritan Associates, Inc.
16. West Texas Bingo, Inc.
(LIST CONTINUED ON NEXT PAGE.)
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SETTLEMENT AGREEMENT, COMPROMISE OF
CLAIMS AND MUTUAL RELEASE
MISSISSIPPI CORPORATIONS
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1. Delta Bingo, Inc.
2. Forest Bingo, Inc.
3. Grenada Bingo, Inc.
4. Louisville Bingo, Inc.
5. Starkville Bingo, Inc.
SOUTH CAROLINA CORPORATIONS
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1. Columbia One Corp.
2. Concessions Corp.
3. Dabber's Bingo, Inc.
4. Darlington Music Co., Inc.
5. Gamecock Promotions, Inc.
6. Gold Strike, Inc.
7. Low Country Promotions, Inc.
8. MHJ Corporation
9. Midlands Promotions, Inc.
10. S.C. Properties II, Inc.
EXHIBIT A
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IRREVOCABLE PROXY
AMERICAN BINGO & GAMING CORP.
WHEREAS, the Xxxxx Xxxxxx Irrevocable Trust ("Holder") has previously
entered into that certain Settlement Agreement, Compromise of Claims and Mutual
Release (the "Settlement Agreement") dated February , 1999, between Holder,
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Xxxxxxx Xxxxxx, Xxxxx Xxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxx Xxxxxx
and American Bingo & Gaming Corp., a Delaware corporation ("ABG").
WHEREAS, as a condition to the Settlement Agreement, Holder granted an
irrevocable proxy to ABG's designee with respect to all shares of stock of ABG
now owned or hereafter acquired by Holder (the "Holder Shares") for a period of
five years, or until all shares of ABG stock owned by Holder are sold pursuant
to the terms of the Settlement Agreement.
WHEREAS, the purpose of this irrevocable proxy is to protect the economic
and financial interest of ABG pursuant to the Settlement Agreement, and the
matters therein contemplated, by ensuring that the Holder Shares will be voted
for the recommendations or proposals of the Board of Directors of ABG at any
meeting of the shareholders of ABG.
THIS PROXY MAY NOT BE REVOKED BY HOLDER PRIOR TO FEBRUARY , 2004, AND IF
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HOLDER OWNS SHARES OF ABG STOCK AT FEBRUARY , 2004, THEN HOLDER MAY NOT
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REVOKE THIS PROXY UNTIL ALL SHARES OF ABG STOCK OWNED BY HOLDER ARE SOLD
PURSUANT TO THE TERMS OF THE SETTLEMENT AGREEMENT.
NOW, THEREFORE, in consideration of the premises, the Holder hereby
irrevocably appoints ABG's designee as its attorney and proxy, with full power
of substitution, to vote in such manner as such attorney and proxy or his
substitute shall in his sole discretion deem proper, and otherwise act with
respect to all of the Holder Shares (and any and all other shares or other
securities of ABG issued or issuable on or after the date hereof in respect of
any options, warrants or rights held by Holder) which the Holder is entitled to
vote at any meeting (whether annual or special and whether or not an adjourned
meeting) of ABG or otherwise. This proxy is issued in consideration of the
Settlement Agreement and the covenants and agreements therein which is accepted
hereby and, because coupled with the interest provided thereby, shall be
irrevocable to the full extent permitted by law, provided that this proxy will
become revocable on February , 2004 if Holder no longer owns any shares of
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ABG stock. If Holder owns shares of ABG stock on February , 2004, Holder
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may not revoke this proxy until all shares of ABG stock owned by Holder are sold
pursuant to the terms of the Settlement Agreement. This proxy revokes any other
proxy granted by Holder at any time with respect to the Holder Shares. It is
expressly understood and agreed that this proxy shall not restrict or prevent
the sale of ABG stock by Holder, and further that this proxy shall be
extinguished, upon sale, as to all shares sold by Holder, so that all shares
sold by Holder are sold with full voting and other shareholder rights being
passed to the buyer thereof.
DATED this day of , 1999.
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---------------------------------
Xxxxx Xxxxxx Irrevocable Trust, by
Xxxxx Xxxxxx, Trustee
EXHIBIT B
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IRREVOCABLE PROXY
AMERICAN BINGO & GAMING CORP.
WHEREAS, the undersigned, L. Xxxxxxx Xxxxxx ("Holder"), has previously
entered into that certain Settlement Agreement, Compromise of Claims and Mutual
Release (the "Settlement Agreement") dated February , 1999, between Holder,
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Xxxxx Xxxxxxx Xxxxxx, Xxxxx Xxxxxx, the Xxxxx Xxxxxx Irrevocable Trust, Xxx
Xxxxxx, Xxxxxxx Xxxxxx and American Bingo & Gaming Corp., a Delaware corporation
("ABG").
WHEREAS, as a condition to the Settlement Agreement, Holder granted an
irrevocable proxy to ABG's designee with respect to all shares of stock of ABG
now owned or hereafter acquired by Holder (the "Holder Shares") for a period of
five years, or until all shares of ABG stock owned by Holder are sold pursuant
to the terms of the Settlement Agreement.
WHEREAS, the purpose of this irrevocable proxy is to protect the
economic and financial interest of ABG pursuant to the Settlement Agreement, and
the matters therein contemplated, by ensuring that the Holder Shares will be
voted for the recommendations or proposals of the Board of Directors of ABG at
any meeting of the shareholders of ABG.
THIS PROXY MAY NOT BE REVOKED BY HOLDER PRIOR TO FEBRUARY , 2004, AND IF
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HOLDER OWNS SHARES OF ABG STOCK AT FEBRUARY , 2004, THEN HOLDER MAY NOT
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REVOKE THIS PROXY UNTIL ALL SHARES OF ABG STOCK OWNED BY HOLDER ARE SOLD
PURSUANT TO THE TERMS OF THE SETTLEMENT AGREEMENT.
NOW, THEREFORE, in consideration of the premises, the Holder hereby
irrevocably appoints ABG's designee as his attorney and proxy, with full power
of substitution, to vote in such manner as such attorney and proxy or his
substitute shall in his sole discretion deem proper, and otherwise act with
respect to all of the Holder Shares (and any and all other shares or other
securities of ABG issued or issuable on or after the date hereof in respect of
any options, warrants or rights held by Holder) which the Holder is entitled to
vote at any meeting (whether annual or special and whether or not an adjourned
meeting) of ABG or otherwise. This proxy is issued in consideration of the
Settlement Agreement and the covenants and agreements therein which is accepted
hereby and, because coupled with the interest provided thereby, shall be
irrevocable to the full extent permitted by law, provided that this proxy will
become revocable on February , 2004 if Holder no longer owns any shares of
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ABG stock. If Holder owns shares of ABG stock on February , 2004, Holder
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may not revoke this proxy until all shares of ABG stock owned by Holder are sold
pursuant to the terms of the Settlement Agreement. This proxy revokes any other
proxy granted by Holder at any time with respect to the Holder Shares. It is
expressly understood and agreed that this proxy shall not restrict or prevent
the sale of ABG stock by Holder, and further that this proxy shall be
extinguished, upon sale, as to all shares sold by Holder, so that all shares
sold by Holder are sold with full voting and other shareholder rights being
passed to the buyer thereof.
DATED this day of , 1999.
--------- ------------
---------------------------------
L. Xxxxxxx Xxxxxx
EXHIBIT C
---------
IRREVOCABLE PROXY
AMERICAN BINGO & GAMING CORP.
WHEREAS, the undersigned, Xxxxx Xxxxxxx Xxxxxx ("Holder"), has previously
entered into that certain Settlement Agreement, Compromise of Claims and Mutual
Release (the "Settlement Agreement") dated February , 1999, between Holder,
-----
Xxxxxxx Xxxxxx, Xxxxx Xxxxxx, the Xxxxx Xxxxxx Irrevocable Trust, Xxx Xxxxxx,
Xxxxxxx Xxxxxx and American Bingo & Gaming Corp., a Delaware corporation
("ABG").
WHEREAS, as a condition to the Settlement Agreement, Holder granted an
irrevocable proxy to ABG's designee with respect to all shares of stock of ABG
now owned or hereafter acquired by Holder (the "Holder Shares") for a period of
five years, or until all shares of ABG stock owned by Holder are sold pursuant
to the terms of the Settlement Agreement.
WHEREAS, the purpose of this irrevocable proxy is to protect the
economic and financial interest of ABG pursuant to the Settlement Agreement, and
the matters therein contemplated, by ensuring that the Holder Shares will be
voted for the recommendations or proposals of the Board of Directors of ABG at
any meeting of the shareholders of ABG.
THIS PROXY MAY NOT BE REVOKED BY HOLDER PRIOR TO FEBRUARY , 2004, AND IF
-----
HOLDER OWNS SHARES OF ABG STOCK AT FEBRUARY , 2004, THEN HOLDER MAY NOT
-----
REVOKE THIS PROXY UNTIL ALL SHARES OF ABG STOCK OWNED BY HOLDER ARE SOLD
PURSUANT TO THE TERMS OF THE SETTLEMENT AGREEMENT.
NOW, THEREFORE, in consideration of the premises, the Holder hereby
irrevocably appoints ABG's designee as her attorney and proxy, with full power
of substitution, to vote in such manner as such attorney and proxy or his
substitute shall in his sole discretion deem proper, and otherwise act with
respect to all of the Holder Shares (and any and all other shares or other
securities of ABG issued or issuable on or after the date hereof in respect of
any options, warrants or rights held by Holder) which the Holder is entitled to
vote at any meeting (whether annual or special and whether or not an adjourned
meeting) of ABG or otherwise. This proxy is issued in consideration of the
Settlement Agreement and the covenants and agreements therein which is accepted
hereby and, because coupled with the interest provided thereby, shall be
irrevocable to the full extent permitted by law, provided that this proxy will
become revocable on February , 2004 if Holder no longer owns any shares of
-----
ABG stock. If Holder owns shares of ABG stock on February , 2004, Holder
-----
may not revoke this proxy until all shares of ABG stock owned by Holder are sold
pursuant to the terms of the Settlement Agreement. This proxy revokes any other
proxy granted by Holder at any time with respect to the Holder Shares. It is
expressly understood and agreed that this proxy shall not restrict or prevent
the sale of ABG stock by Holder, and further that this proxy shall be
extinguished, upon sale, as to all shares sold by Holder, so that all shares
sold by Holder are sold with full voting and other shareholder rights being
passed to the buyer thereof.
DATED this day of , 1999.
--------- ------------
---------------------------------
Xxxxx Xxxxxxx Xxxxxx
EXHIBIT D
---------
STATE OF SOUTH CAROLINA )
) SEVERANCE AGREEMENT
COUNTY OF LEXINGTON )
This Severance Agreement is made and entered into this 24th day of July,
----
1998, between L. Xxxxxxx Xxxxxx (hereinafter Xxxxxx), and American Bingo &
Gaming Corp. (hereinafter "ABG");
WHEREAS, Xxxxxx desires to tender his resignations as Director of ABG and
as an employee of ABG effective immediately;
WHEREAS, ABG wishes to accept the resignations of Xxxxxx;
NOW, THEREFORE, in consideration of the mutual promises contained herein
and the terms set forth below, the parties agree as follows:
1. Xxxxxx hereby resigns from his positions as an officer, employee and
member of the Board of Directors of ABG and as an officer or director
of all ABG subsidiaries and associated companies and from any and all
other positions he may hold with ABG or any of its subsidiaries;
2. Xxxxxx and ABG hereby mutually agree to terminate the Employment
Agreement by and between Xxxxxx and ABG dated September 10, 1996, and
Xxxxxx further represents and warrants that he has no other employment
or severance agreement with ABG which is in any way in effect as of
the date hereof;
3. Xxxxxx agrees to refrain from influencing, attempting to influence,
directing or attempting to direct the governance of ABG in any manner
whatsoever either directly or indirectly through others acting on his
behalf;
4. Xxxxxx disclaims ownership or beneficial ownership of any shares of
ABG other than shares held in his name. With the exception as noted
below, Xxxxxx agrees to refrain from selling, pledging, hypothecating,
exercising and voting any and all ABG shares, warrants and/or options
that Xxxxxx owns directly or beneficially for 1 year following the
date of this agreement. Xxxxxx hereby represents that he owns 524,228
shares of ABG. With the exception as noted below, Xxxxx Xxxxxx agrees
to refrain from selling, pledging, hypothecating, exercising and
voting any and all ABG shares, warrants and/or options that Xxxxx
Xxxxxx owns directly or beneficially for one (1) year following the
date of this agreement. Xxxxx Xxxxxx hereby represents that she owns
560,417 shares of ABG. Xxxxxx and Xxxxx Xxxxxx agree to provide a
general proxy to Xxxxx Xxxxxxx for a period of eleven (11) months
authorizing Hilliou to vote the ABG shares of Xxxxxx and Xxxxx Xxxxxx
at any and all shareholder meetings of ABG. Notwithstanding the
foregoing, Xxxxxx and Xxxxx Xxxxxx shall each have the right to sell
the shares which each of them own either directly or beneficially
through the NASDAQ Small Cap Market System at a selling price of $6
per share or higher, provided that neither Xxxxxx nor Xxxxx Xxxxxx
shall sell more than 25% of the total shares owned by the two of them
combined during any 90 day period, subject to all applicable federal
and state rules, regulations and statutes, including but not limited
to SEC Rule 144.
Exception: Xxxxxx and / or Xxxxx Xxxxxx in the aggregate may sell
ABG common stock each owns up to 2,000 shares per day, so long as such
combined total of sales do not exceed 20,000 shares per month.
There are and will be no other lockups or restraints on the ABG
shares, warrants and/or options of Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, the
Xxxxxx Family Trust or the Xxxxx Xxxxxx Irrevocable Trust except as
Provided by law. ABG will waive any company lockup agreement which may
exist as to the shares, consistent with applicable law, and will
assist in assuring that the shares can be traded.
5. Xxxxxx agrees to execute the attached Termination of Voting Agreement
that will terminate the Voting Agreement dated December 18, 1997, by
and between Xxxxxxx X. Xxxx, L. Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxxxxx,
Xx., Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx;
6. Xxxxxx agrees that he will not acquire any additional shares of ABG
except through the exercise of vested options held by him, either
directly or beneficially through others from this date forward.
7. Xxxxxx agrees to return any and all property of ABG that is in his
possession and/or control, including all company vehicles, telephones,
credit cards and other items, with the exception of the 1998 Chevrolet
Suburban automobile which he has driven for the past eight months,
ownership of which will be transferred to him upon his payment of
$25,000 to ABG;
8. ABG agrees to continue Xxxxxx on the existing health insurance plan
for a period of eighteen months from the date of execution of this
agreement provided that Xxxxxx pays the premium for such health
coverage;
9. ABG agrees that any claims, demands, or causes of action that it now
has or discovers in the future for conduct occurring before the date
of this agreement against either Xxxxxx, Xxxxxxx Xxxxxx or any other
member of Xxxxxx'x family will be pursued in civil litigation in a
court of competent jurisdiction;
10. Xxxxxx on behalf of himself, his heirs, successors and assigns, hereby
releases and discharges ABG and any and all other persons, firms,
corporations, associations and law firms from any and every right and
all manner of action or actions, cause or causes of action, claims or
demands of any kind he now has, or at any time claimed or claims,
arising out of Xxxxxx'x association with ABG whether as a director,
officer, employee or otherwise, except that in the event of civil suit
being brought by ABG against Xxxxxx, Xxxxxxx Xxxxxx or any other
member of Xxxxxx'x family, Xxxxxx, on behalf of himself, his heirs,
successors and assigns, may assert any counterclaims, cross-actions or
other actions which may be available in response to such suit or suits
in the absence of this agreement.
11. This Severance Agreement is governed by the laws of the State of South
Carolina;
12. The parties further agree that any dispute relating to this agreement,
including whether the parties have abided by their obligations as
agreed to herein, shall be litigated exclusively in the Court of
Common Pleas, Eleventh Judicial Circuit, State of South Carolina and
the parties hereby agree to submit to that court's jurisdiction.
/s/Xxxxxxx X. Xxxxxx /s/ L. Xxxxxxx Xxxxxx
---------------------- ------------------------
Witness L. Xxxxxxx Xxxxxx
/s/Xxxxxxx X. Xxxxxx /s/ Xxxxx Xxxxxx
---------------------- ------------------
Witness Xxxxx Xxxxxx
AMERICAN BINGO & GAMING CORP.
/s/Xxxxx X. Xxxxxxx
----------------------
/s/Xxxxxx X. Xxxxxx Xxxxx Xxxxxxx
---------------------- President
Witness
TERMINATION OF VOTING AGREEMENT
This Termination of Voting Agreement (this "Agreement") is made as of this
day of , 1998, by and between Xxxxxxx X. Xxxx, X. Xxxxxxx
----- ------------------
Xxxxxx, Xxxxxx X. Xxxxxxxx, Xx., Xxxxxx X. Xxxxxxxx, and Xxxxxxx X. Xxxxxxxx
(the "Shareholders"), all of whom are shareholders of American Bingo & Gaming
Corp., a corporation organized and existing under the laws of the State of
Delaware (the "Company").
WHEREAS, the Shareholders entered into a Voting Agreement dated as of
December 18, 1997 (the "Voting Agreement") related to their agreement to support
the nomination of certain persons to the Board of Directors of the Company; and
WHEREAS, the Shareholders now desire to terminate the Voting Agreement;
NOW, THEREFORE, for and in consideration of the agreements made herein, the
Shareholders hereby agreed as follows:
1. The Shareholders hereby mutually consent to terminate the Voting
Agreement, effective as of the date of this Agreement.
2. This Agreement may be executed in multiple counterparts.
3. This Agreement shall be for the benefit of and be binding upon the
parties hereto and their successors, assigns and personal representatives.
IN WITNESS WHEREOF, the Shareholders have hereunto set their hands.
------------------------------------
Xxxxxxx X. Xxxx
------------------------------------
L. Xxxxxxx Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
------------------------------------
Xxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx
EXHIBIT E
---------
STATE OF SOUTH CAROLINA ) MUTUAL RELEASE
) AND
COUNTY OF LEXINGTON ) SETTLEMENT AGREEMENT
This agreement is made this 24th day of July, 1998, by and between L.
---- ----
Xxxxxxx Xxxxxx (hereinafter Xxxxxx), and American Bingo and Gaming Corp.
(hereinafter ABG), and Xxxxxx X. Xxxxxxxx, Xx., Chairman of the Board of ABG.
Whereas, ABG has conducted an internal investigation which produced what
ABG believed to be credible evidence that L. Xxxxxxx Xxxxxx received proceeds
from video gaming machines being operated at a facility owned by ABG at 0000
Xxxxxxxxxx Xxxxxxx, Xxxx Xxxxxxxx, Xxxxx Xxxxxxxx, and leased to an operator
pursuant to an Agreement that ABG receive 80% of net proceeds from the operation
of video gaming machines at this facility;
Whereas, Xxxxxx X. Xxxxxxxx, Xx., on behalf of ABG signed criminal warrants
against Xxxxxx alleging breach of trust with fraudulent intent in violation of
S.C. Code 16-113-230(A) and bribery in violation of S.C. Code 16-17-540(1),
warrant nos. F-607108 and F-607109, dated June 30, 1998).
Whereas, Xxxxxxx Xxxxxx has denied the material allegations contained in the
warrants and continues to deny same;
Whereas, the parties hereto wish to resolve the charges contained in the
separate warrants;
NOW THEREFORE, in consideration of the mutual promises contained herein and
the terms set forth below, the parties agree as follows:
1. Xxxxxx agrees to pay ABG Five Thousand and 00/100ths ($5,000.00) Dollars;
2. Xxxxxx agrees to resign from all positions held with ABG and its
subsidiary companies pursuant to the terms of the Severance Agreement executed
herewith;
3. ABG and Xxxxxx Xxxxxxxx, Jr., Chairman of the Board, hereby agrees to
dismiss the pending criminal warrants referenced herein;
4. ABG and Xxxxxx X. Xxxxxxxx, Xx. hereby releases and discharges Xxxxxx,
Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxx Xxxxxx and Xxxxx Xxxxxx, from any and every
right and all manner of action or actions, cause or causes of action, claims or
demands of any kind it now has, or anytime claimed or claimed to have had,
regarding the allegations of misappropriation of proceeds from five video game
machines placed in the premises known as "The Game Room," located within the
American Bingo Facility at 0000 Xxxxxxxxxx Xxxxxxx, Xxxx Xxxxxxxx, Xxxxx
Xxxxxxxx, between August 28, 1996 and March 6, 1997;
5. Xxxxxxx Xxxxxx, for himself, his heirs, successors and assigns, releases
and discharges ABG, Xxxxxx X. Xxxxxxxx, Xx., and all other persons, firms,
corporations, associations and law firms, from any and every action or actions,
causes or causes of actions, claims or demands of any kind he now has, or at any
time claimed or claims, arising out of the execution of the arrest warrants
referenced herein and the negotiation and settlement of such charges pursuant to
this agreement.
6. It is expressly understood and agreed that this Release contained herein
is accepted as being in full accord, satisfaction, in compromise of the disputed
claims and that the settlement is not an admission of liability, liability being
vigorously disputed, but is made for the purpose of terminating all claims,
pending or proposed, by and between Xxxxxx and ABG, its officers and directors,
including Xxxxxxxx, with respect to the allegations in the arrest warrants and
the execution of those warrants.
7. The parties agree that the terms of this agreement shall remain
confidential between the parties with the exception of required disclosures or
reporting to the SEC.
WITNESSES:
/s/Xxxxxxx X. Xxxxxx /s/L. Xxxxxxx Xxxxxx
---------------------- ----------------------
L. XXXXXXX XXXXXX
AMERICAN BINGO AND GAMING CORP.
/s/Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
--------------------- -----------------------
By: XXXXX XXXXXXX
ITS PRESIDENT
/s/Xxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxxx, Xx.
--------------------- -------------------------------
XXXXXX X. XXXXXXXX, XX.
CHAIRMAN OF THE BOARD
