Exhibit 10.8
AGREEMENT
THIS AGREEMENT is made on the 12th day of August 1997 by and between CONSERVER
CORPORATION OF AMERICA, a corporation organized and existing under the laws of
Delaware having a place of business at 0000 XxXxxxx Xxxx, Xxxxx Xxxxxx, Xxxxxxx
00000 ("CCA"), SAKHALIN GENERAL TRADING AND INVESTMENTS LIMITED, a company
organized with limited liability under the laws of Cyprus whose legal office is
at Doma Building, 227 Archibiship Markarios III Street, Limassol, Cyprus
("SGTI"), and SOVEREIGN GAMING AND LEISURE LIMITED, a company organized with
limited liability under the laws of Cyprus whose legal office is at Doma
Building, 227 Archbishop Markarios III Street, Limassol, Cyprus ("Sovereign",
SGTI and Sovereign being sometimes collectively referred to herein as
"Grantors").
WHEREAS, SGTI owns fifty percent (50%) of the shares of Sakhalin City Centre
Limited, a closed joint stock company incorporated under the laws of the Russian
Federation whose legal and postal address is 32 Kommunistichesky Prospect,
Office 521, Yuzhno-Sakhalinsk, Sakhalin Oblast, Russian Federation ("SCC");
WHEREAS, SCC, SGTI and Sovereign have entered into various agreements with and
received certain undertakings from the Sakhalin Oblast and the City of
Yuzhno-Sakhalinsk (the "City") in the Russian Federation with respect to the
construction and operation of a hotel and casino in the City (the "Project");
WHEREAS, SGTI wishes to transfer the whole of its share capital (the "Shares")
and SGTI and Sovereign wish to transfer all rights and interest to or in the
Project for cash and other consideration;
WHEREAS, CCA wishes to acquire all of the Shares and all rights and interest to
or in the Project held directly or indirectly by SGTI or Sovereign on terms
which have been accepted and agreed; and
WHEREAS, the parties hereto wish to set forth the terms of that
agreement in writing;
NOW, THEREFORE, in consideration of the mutual understandings and agreements
contained herein, the parties hereto hereby agree as follows:
1. GRANT OF SHARES AND RIGHTS
(a) Subject to the terms and conditions set forth herein, Grantors
hereby agree to transfer or cause to be transferred to CCA the
Shares and any and all rights and interest in or to the Project.
(b) The agreement to transfer rights, interest and the Shares set forth
in sub-paragraph (a) is conditioned upon
(i) CCA delivering to SGTI, by wire transfer or company
cheque, immediately after execution and delivery of this
Agreement, Five Hundred Thousand U.S. Dollars ($500,000);
(ii) CCA delivering to SGTI, by wire transfer or company
cheque, not later than 10th September 1997, One million U.S.
Dollars ($1,000,000), and not later than 15th October 1997,
One Million Five Hundred Thousand U.S. Dollars ($1,500,000);
(iii) CCA delivering to the shareholders of SGTI or their nominees
as soon as is practicable following the approval of its
shareholders one million five hundred thirty-eight thousand
four hundred sixty-two (1,538,462) shares of common stock of
CCA, being approximately Ten Million U.S. Dollars
($10,000,000) of such stock valued at Six U.S. Dollars and
Fifty Cents ($6.50) per share.
2. REPRESENTATIONS AND WARRANTIES OF GRANTOR
SGTI and Sovereign jointly and severally represent and warrant that:
(a) they have full authority to enter into this Agreement and
grant the rights and undertakings herein granted;
(b) the Shares are owned free and clear of any lien or
encumbrance and are freely transferable in accordance with the
terms of this Agreement;
(c) SCC is a closed joint stock company duly organized and
registered as a company with foreign investment under the laws
of the Russian Federation;
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(d) Sovereign has the right to assign or transfer all of its
rights and interest in the Project, including without limitation
the Operating Management Agreement ("OMA") and the Project
Management Agreement ("PMA");
(e) neither SCC or SGTI have any material liabilities, other
than normal trade creditors, which have not been disclosed to
CCA;
(f) all of the representations made to CCA by or on behalf of them or
either of them, including without limitation that (i) SCC has the
right to construct a hotel and casino complex with approximately
four hundred and ten bedrooms in the City, (ii) all necessary
governmental permissions, including without limitation zoning
permission, to construct, subject to detailed final design and
drawings, and operate such a complex have been granted or will be
granted subject only to the substantial completion of the
construction phase of the Project, (iii) SCC has the exclusive right
for a casino and gaming license in the City, such exclusivity
subject only to three existing casino or gaming licenses, which
shall not be amended, modified or supplemented so as to extend the
scope, size and area or other rights currently granted under such
existing licenses, (iv) no payment of any gaming tax, levy or fee
shall be imposed on the Project, (v) all of the foregoing rights
have been granted for a minimum of fifty-two (52) years, being for
three (3) years plus forty-nine (49) years, with options to renew
for an additional forty-nine (49) years on substantially similar
terms, (vi) the total number of shares of SGTI now outstanding is
approximately two hundred thirty thousand (230,000), and (vii)
nothing of value has been given to any government official in the
Russian Federation or any subdivision thereof to obtain any rights
with respect to the Project, are true and will be true as of the
date of the delivery of the payments and shares in accordance with
paragraph 1(b), and, as far as is known by either of them, will
continue to be true through the said minimum period during which the
said rights have been granted.
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3. UNDERTAKINGS OF SGTI AND SOVEREIGN
(a) After the delivery of the Shares and the assignment of the rights
and interest to CCA in accordance with paragraph 1(a), SGTI and
Sovereign jointly and severally agree to execute such documents and
generally to take such action as may be reasonably requested by CCA
to perfect the intended transfer of such rights, interest and
Shares.
(b) Upon request by CCA, Sovereign agrees to become project
manager during the construction phase of the Project, subject to
agreement on reasonable compensation for such services, which
shall not exceed five percent (5%) of the construction cost of
the Project or Five Million U.S. Dollars ($5,000,000), whichever
is less.
4. RIGHTS OF CCA
(a) If at the completion of its due diligence CCA should conclude for
any reason that it does not wish to proceed with the Project and the
transactions contemplated hereby, CCA shall have the right to
convert any cash sums delivered to SGTI in accordance with clauses
(i) or (ii) of paragraph 1(b), into shares in SGTI at the conversion
rate of one (1) ordinary share of SGTI for each Thirty U.S. Dollars
($30) so delivered.
(b) In the event of a material breach of any of the representations and
warranties set forth in paragraph 2 being notified to SGTI and
Sovereign by 10th September 1997, which is not readily curable, then
and only then CCA shall have the right to have any cash sums
delivered to SGTI in accordance with clause (i) of paragraph 1(b)
repaid by the Grantors upon demand.
5. GENERAL
(a) It is the express intent of the parties hereto that this Agreement
and the transactions contemplated hereby be governed by the law of
the State of New York, with the full force and effect as thought
this Agreement had been executed and fully performed in New York. In
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the event of any dispute hereunder, the parties expressly agree that
such dispute shall be resolved by arbitration conducted in London
under the Rules of Arbitration of the International Chamber of
Commerce.
(b) This Agreement may be modified, amended or revised only by a written
instrument, duly exeucted by the parties hereto.
(c) The title or headings of provisions herein are used for convenience
only and shall in no way be used to construe the meaning of the
provision hereof.
(d) This Agreement may be executed individually and by duly authorized
representatives of the respective parties hereto in any number of
counterparts, each of which shall be deemed the original.
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This Agreement shall be translated into any other language, and such
translation may be initialled, but only this Agreement in the
English language shall be deemed the original. If any conflict
exists between the English language and the translation, the English
language version shall control.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement personally or by their duly authorized representatives as of the date
and year first above written.
CONSERVER CORPORATION OF AMERICA
BY: /s/
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SAKHALIN GENERAL TRADING AND INVESTMENTS LIMITED
BY: /s/ Chairman 13/8/97
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SOVEREIGN GAMING AND LEISURE LIMITED
BY: /s/
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