EXHIBIT 10.15
AGREEMENT
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This Agreement (the "Agreement") is entered into as of May 1, 2001, by and
among Xxxxxxx Xxxxxxx ("Xxxxxxx"), P. Xxxx Xxxxxxx ("Xxxxxxx"), Xxxxx Xxxxx
("Xxxxx"), Xxxx Xxxxxxxx ("Xxxxxxxx"), Xxxxxx Xxxxxx ("Xxxxxx"), Summit
International Group, Inc., a Colorado corporation ("Summit"), and Ten Stix,
Inc., a Colorado corporation ("Ten Stix") (hereinafter collectively referred to
as the "Parties").
Recitals
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WHEREAS, Ten Stix desires to purchase from Humecki his 10.04% common stock
interest in Summit;
WHEREAS, Ten Stix desires to purchase from Summit all of its assets but
none of its liabilities (except for those assumed liabilities relating to
Xpectra, Xxxxx Xxxxxxxx and Xxxx Xxxxxxx, as specifically identified in the
attached Asset Purchase Agreement);
WHEREAS, Humecki, Lacerte, Xxxxx and Summit (the "Litigation Parties") are
parties in Consolidated Case No. 99 CV 2715 (the "Lawsuit"), currently pending
in District Court, Jefferson County, Colorado;
WHEREAS, in a related case, Case No. 00 CV 1111 in the District Court of
the City and County of Denver, an Order for Entry of Judgment was signed by
Judge Xxxxxx 0. Xxxxxx on March 5, 2001 against Summit and in favor of Humecki
for the sum of $4,575.83 plus post-judgment interest ("Judgment");
WHEREAS, the Litigation Parties wish to facilitate Ten Stix's purchase of
Humecki's and Xxxxxxxx Xxxxxxx'x common stock of Summit and Ten Stix's purchase
of Summits assets, without liabilities, by resolving all claims, counterclaims
and defenses which are asserted or could be asserted in the Lawsuit or as
contained in the Judgment.
Agreement
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NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, all of which are conclusively deemed adequate
consideration among the Parties, the undersigned agree as follows:
1. The Parties acknowledge and confirm that the Recitals stated above are
true and correct and incorporate each Recital herein.
2. Concurrently with the execution of this Agreement, Humecki shall deliver
to Ten Stix, free and clear of all encumbrances, his 10.04% common stock
interest in Summit.
3. Concurrently herewith, Summit and Ten Stix shall sign an Asset Purchase
Agreement in the form attached hereto as Exhibit A.
4. Concurrently herewith, Ten Stix shall pay Humecki a total of $100,000,
with $20,000 to be paid by cashiers or certified check to the order of
Pendleton, Friedberg, Xxxxxx & Xxxxxxxxx, P.C., as attorneys for Xxxxxxx
Xxxxxxx, and $80,000 to be paid by a Promissory Note in the form attached hereto
as Exhibit B.
5. Concurrently herewith, Ten Stix shall sign a Security Agreement for the
benefit of Humecki as security for the payments by Ten Stix to Humecki as set
forth in the Promissory Note. A copy of the Security Agreement is attached
hereto as Exhibit C.
6. Ten Stix shall deliver to Humecki one new, complete multi-deck shuffler
in black set for Gemaco cards (Huxley sticker) by no later than June 9, 2001.
The obligation set forth in this paragraph may be enforced by specific
performance.
7. Concurrently herewith, the Litigation Parties and each of their
respective affiliates, directors, officers, representatives, agents, heirs,
including Xxxxxxx Xxxxxxx (P. Xxxx Xxxxxxx'x father), successors and assigns,
shall and hereby do waive and release all claims, counterclaims, causes of
action, demands, liabilities, damages, costs and expenses, known or unknown,
that they have, may have and/or may claim to have against each other which
relate in any way to the Lawsuit and/or the Judgment. By entering into this
Agreement, none of the Litigation Parties admit liability of any kind or nature
whatsoever to any other party with respect to the claims which were made, could
have been made, or should have been made in the Lawsuit.
8. Concurrently herewith, counsel for the Litigation Parties shall execute
and file with the District Court for Jefferson County, Colorado, a Stipulation
of Dismissal with Prejudice in the form attached hereto as Exhibit D.
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9. As officers, directors and controlling shareholders of Ten Stix,
Xxxxxxxx and Xxxxxx hereby assume a fiduciary duty to Humecki in connection with
the administration and management of Ten Stix's duties to Humecki as set forth
in the Promissory Note attached as Exhibit B and the related Security Agreement
attached as Exhibit C and as to their own duties to Humecki concerning
certification of the truth, correctness and accuracy of the monthly accounting
as set forth in the Promissory Note. Moreover, Ten Stix admits to having an
express duty of good faith and fair dealing to Humecki in the administration and
management of its duties to him under the Promissory Note and Security
Agreement. It is understood by the Parties that the only assets of Ten Stix in
which Humecki has a security interest are those assets identified in the
Security Agreement attached as Exhibit C.
10. The Parties agree to use all reasonable efforts to take, or cause to be
taken, all actions 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. The obligations set
forth in this paragraph may be enforced by specific performance.
11. This Agreement shall be interpreted and enforced in accordance with the
laws of the State of Colorado. The Parties agree that any action brought to
enforce or interpret this Agreement shall be brought before the District Court
of the City and County of Denver, Colorado, and the Parties expressly consent to
venue in and jurisdiction of such Court for that purpose.
12. Ten Stix may not assign this Agreement, the Promissory Note, the
Security Agreement, or any rights or obligations related thereto, or the Asset
Purchase Agreement without the prior written consent of Humecki, which consent
cannot be unreasonably withheld. Humecki may assign this Agreement, the
Promissory Note, the Security Agreement, and any or all rights or obligations
related thereto at his sole discretion. If Humecki makes such an assignment, he
shall deliver notice of such to Ten Stix, Inc., c/o Xxxx Xxxxxx, 000 Xxxxxxx
Xxxxxx, #000, Xxxxxxxx, Xxxxxxxx 00000-0000. Ten Stix may not enter into a
security agreement or promissory note with any party hereto, other than Humecki,
unless the security interest and/or note are subordinate to Humecki's security
interest and promissory note. Moreover, the parties hereto agree that they will
not file any UCC financing statement until Humecki has first filed his UCC-1
financing statement in connection with the transactions set forth herein. The
obligations set forth in this paragraph may be enforced by specific performance.
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13. Neither the failure nor any delay on the part of Humecki in exercising
any right, power or remedy under this Agreement, the Security Agreement or the
Promissory Note shall operate as a waiver thereof, or of any other right, power
or remedy; nor shall any single or partial exercise of any right, power or
remedy preclude any further or other exercise thereof, or the exercise of any
right, power or remedy.
14. This Agreement shall be binding upon and inure to the benefit of the
Parties and their respective heirs, successors, assigns and personal
representatives.
15. Each party to this Agreement represents and warrants to the other
Parties to this Agreement that such party: (i) is represented by counsel of that
party's choice, (ii) has fully discussed the terms of this Agreement with such
counsel, (iii) is satisfied with the advice and representation of counsel, (iv)
has entered into this Agreement on a fully informed and voluntary basis, and (v)
has not assigned or otherwise transferred any claims related to the Lawsuit
and/or the Judgment.
16. All agreements and understandings among the Parties hereto are embodied
and expressed herein. All prior agreements or negotiations with respect thereto
are expressly rescinded and replaced hereby. The terms of this Agreement may not
be modified, amended or waived except by subsequent written instrument executed
by each of the Parties hereto.
17. This Agreement may be executed in any number of counterparts, each of
which taken together shall constitute a single, integrated agreement. This
Agreement may be executed in original or via facsimile transmission.
18. This Agreement shall be deemed to have been prepared by all of the
Parties and shall not be construed by one party against another based upon
authorship.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Agreement as of the date first above written.
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Summit International Group, Inc.
By: /s/ P. Xxxx Xxxxxxx /s/ Xxxxxxx Xxxxxxx
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President Xxxxxxx Xxxxxxx
Ten Stix, Inc.
By: /s/ Xxxxxx X. Xxxxxx /s/ P. Xxxx Xxxxxxx
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President P. Xxxx Xxxxxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx, as to paragraph 9
above
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, as to paragraph 9
above
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