RESCISSION AND RELEASE AGREEMENT
THIS RESCISSION AND RELEASE AGREEMENT ("Agreement") is executed this
18th day of August 1997 by and between CyberAmerica Corporation, a Nevada
corporation with principal offices at 000 Xxxx 000 Xxxxx, Xxxxx 000, Xxxx Xxxx
Xxxx, Xxxx 00000 ("CYA") and East West Trading Corporation, a foreign
corporation with principal offices at National Bank Building, Memorial Square,
Charleston, Nevis West Indies ("East West").
PREMISES
WHEREAS, East West currently holds 85,950 shares of common stock in a
Nevada corporation known as Oasis Hotel, Resort & Casino - I, Inc. and an
additional 28,500 shares of common stock in a Nevada corporation known as Oasis
Hotel, Resort & Casino - II, Inc. (the Oasis Hotel, Resort & Casino - I, Inc.
and Oasis Hotel, Resort & Casino - II, Inc. shares shall be hereinafter
collectively referred to as the "Oasis Shares").
WHEREAS, East West acquired the Oasis Shares for a price of $1.00 per
share for a total of $114,650 in a private transaction with CYA
WHEREAS, East West and CYA (hereinafter collectively referred to as the
"Parties") believe it to be in their mutual best interest to rescind the
transaction pursuant to which East West acquired the Oasis Shares from CYA, and
to settle any and all potential claims which either party may have against the
other as a result of that transaction.
AGREEMENT
Based upon the above Premises, which are hereby incorporated by this
reference and in consideration of the mutual promises contained herein, the
benefits to be derived by each party hereunder and other good and valuable
consideration, the sufficiency of which is hereby expressly acknowledged, the
Parties agree as follows:
1. Delivery of the Oasis Shares. East West hereby agrees, covenants, and
warrants to return all 114,450 of the Oasis Shares which it presently
holds to CYA immediately upon the execution of this Agreement. As part
of the delivery required under this Paragraph, East West shall execute
any and all documents, instruments or other paperwork necessary to
transfer ownership of the Oasis Shares to CYA.
2. Issuance of CYA Shares. As consideration for the return of the Oasis
Shares by East West, CYA shall, within a reasonable time following the
return of the Oasis Shares under Paragraph 1 of this Agreement, issue
to East West a total of 1,124,388 shares of CYA's common stock, par
value $0.001 (the "CYA Common Stock"). The CYA Common Stock shall not
be registered under the Securities Act of 1933, as amended (the "Act"),
but shall be exempt from registration pursuant to an exemption under
Regulation S promulgated under the Act ("Regulation S"). The issuance
of the CYA Common Stock is expressly conditioned upon East West's
return of the Oasis Shares pursuant to Paragraph 1 of this Agreement.
3. Mutual Release. As part of the consideration exchanged hereunder, the
Parties mutually agree to immediately and forever hold one another
harmless from, release one another from, and indemnify each other with
respect to any and all claims directly or indirectly resulting from
East West's acquisition of the Oasis Shares. East West hereby expressly
waives any right to the Oasis Shares, any right to payment for the
Oasis Shares, and any claims which East West may have against CYA,
Oasis Hotel, Resort & Casino - I, Inc., Oasis Hotel, Resort & Casino -
II, Inc., or any subsidiaries, officers or directors of the
aforementioned corporations including, but not limited to, claims for
the $114,650 previously paid by East West.
4. Representations of East West Regarding Offshore Transaction. In
connection with the issuance of the CYA Common Stock, East West makes
the following representations. East West understands and acknowledges
that the CYA Common Stock being issued pursuant to this Agreement will
be issued in reliance on specific exemptions from registration
requirements of federal and state securities laws and that CYA is
relying upon the truth and accuracy of the below-specified
representations, warranties, agreements, acknowledgements and
understandings of East West in order to determine the applicability of
such exemptions and the suitability of East West to acquire the CYA
Common Stock.
(A) East West is not a U.S. person (whenever such term is used
herein, it shall have the meaning as defined by Regulation S);
(B) At the time that this Agreement was executed, and at all other
relevant times, East West was outside the United States and
East West is currently outside the United States;
(C) East West is not receiving the shares of CYA Common Stock on
behalf of any U.S. person and the sale has not been
prearranged with a purchaser in the United States;
(D) East West represents, warrants and hereby agrees that all
offers and sales of CYA Common Stock prior to the expiration
of the 40 day restricted period under Regulation S (the
"Restricted Period") shall only be made in compliance with the
safe harbor contained in Regulation S, pursuant to
registration of securities under the Act or pursuant to an
exemption from registration, and all offers and sales after
the Restricted Period shall be made only pursuant to such a
registration or to such exemption from registration;
(E) All correspondence received by East West regarding this
Agreement has included statements that the CYA Common Stock
hereby acquired has not been registered under the Securities
Act of 1933 and may not be offered or sold in the United
States or to a U.S. Person during the Restricted Period unless
the CYA Common Stock is registered under the Securities Act of
1933 or an exemption from the registration requirements is
available;
(F) East West acknowledges that investment in CYA Common Stock
involves a high degree of risk and further acknowledges that
it can bear the economic risk of investment in the CYA Common
Stock;
(G) East West is sufficiently experienced in financial and
business matters to be capable of evaluating the merits and
risks of receiving the CYA Common Stock, and to make an
informed decision relating thereto;
(H) East West has consulted its own investment and/or legal
advisors in entering this Agreement;
(I) East West understands that in the view of the Securities
Exchange Commission the statutory basis for the exemption
claimed for this transaction would not be present if the
issuance of CYA Common Stock, although in technical compliance
with Regulation S, is part of a plan or scheme to evade the
registration provisions of the Act and East West confirms that
this transaction is not part of any such plan or scheme. East
West is acquiring the CYA Common Stock for investment purposes
and has no present intention to sell the CYA Common Stock in
the United States of to a U.S. Person or for the account or
benefit of a U.S. Person either now or promptly after the
expiration of the Restricted Period.
(J) East West is not an underwriter of, or dealer in, the CYA
Common Stock and East West is not participating, pursuant to a
contractual agreement, in the distribution of the CYA Common
Stock;
5. Further Representations of East West. East West further represents and
warrants as follows:
(A) This Agreement has been duly executed by East West. The
execution and performance of this Agreement will not violate,
result in a breach of, or constitute a default in any
agreement, instrument, judgment, order or decree to which East
West is a party or to which East West is subject.
(B) East West is a corporation duly organized, validly existing
and in good standing under the laws of the Isle of Man and has
all corporate power necessary to engage in the business in
which it presently engages and to carry out the terms and
conditions of this Agreement.
(C) East West has sole title to the Oasis Shares and has full
right to transfer the Oasis Shares as contemplated by this
Agreement.
(D) No representation or warranty contained herein, nor statement
in any document, certificate or schedule furnished or to be
furnished pursuant to this Agreement contains or contained any
untrue statement of material fact, nor does or will omit to
state a material fact necessary to make any statement or fact
contained herein not misleading.
6. Miscellaneous
A. This Agreement sets forth the entire agreement between the
Parties as of the date of this Agreement. No prior written or
oral statement or agreement contrary to this Agreement shall
be recognized or enforced.
B. In the event that any one or more of the provisions contained
in this Agreement shall for any reason be held to be invalid,
illegal or enforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other
provisions of this Agreement.
C. The validity, interpretation and performance of this Agreement
shall be governed by the laws of the State of Utah without
regard to its law on the conflict of laws. Any dispute arising
out of this Agreement shall be brought in a court of competent
jurisdiction in Salt Lake County, State of Utah. The Parties
exclude any and all statutes, laws and treaties which would
allow or require any dispute to be decided in another forum or
by other rules of decision than provided in this Agreement.
D. Every right and remedy provided herein shall be cumulative
with every other right or remedy at law or in equity and may
be enforced concurrently herewith. No waiver by any party of
the performance of any obligation by the other shall be
construed as a waiver of the same or of any default occurring
or existing. This Agreement may be amended only by writing
executed by both of the Parties. Any term or condition of this
Agreement may be waiver or the time of performance extended by
a writing signed by the party for whose benefit the provision
was intended.
E. If any action at law or in equity, including an action for
declaratory relief, is brought to enforce or interpret the
provisions of this Agreement, the prevailing party shall be
entitled to recover actual attorney's fees, court costs or
other costs incurred in proceeding with the action from the
other party. The attorney's fees, court costs or other costs
may be ordered by the court in its decision of any action
described in the Paragraph or may be enforced in a separate
action brought for determining attorney's fees, court costs or
other costs. Should either party be represented by in-house
counsel, such party may recover attorney's fees incurred by
that in-house counsel in an amount equal to that attorney's
normal fees for similar matters, or, should that attorney not
normally charge a fee, by the prevailing rate charged by
attorneys with similar backgrounds in that legal community.
F. Time is of the essence of this Agreement and of each and every
provision hereof.
G. The Parties agree to cooperate with each other to achieve the
purpose of this Agreement and shall execute such other and
further documents and take such other and further actions as
may be necessary or convenient to effect the purpose of this
Agreement.
H. Nothing in this Agreement, expressed or implied is intended to
confer upon any person, other than the Parties hereto and
their successors, any rights or remedies under or by reason of
this Agreement.
I. If a party signs this Agreement and transmits an electronic
facsimile of the signature page to the other party, the party
who receives the transmission may rely upon this electronic
facsimile as a signed original of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
date set forth above.
CyberAmerica Corporation East West Trading Corporation
/s/Xxxxxxx Xxxxxx /s/Xxxxxx Xxxxx
------------------------------ --------------------
Xxxxxxx Xxxxxx, President Xxxxxx Xxxxx
