EXHIBIT 10.1
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (this "Agreement") is made and
entered into as of the 16th day of December 1998 (the "Effective
Date"), by and between Xxxxx X. Xxxxx, an individual, and Xxxxx
X. Xxxxx, an individual (collectively, "Assignors"), and
Casinovations Incorporated, a Washington corporation (the
"Company").
RECITALS
A. Assignors are the owner of (i) certain Class A Warrants
to purchase shares of the Company's common stock at $3.75 per
share (the "Warrants"); (ii) certain royalty rights with respect
to the Random Ejection Shuffler, Fantasy 21 table game and Safety
Peek Playing Card (the "Royalties"); (iii) certain options to
purchase 20,000 shares of the Company's common stock from the
Company (the "Company Options"); (iv) certain options to purchase
175,000 shares of the Company's common stock from Xxxxx (the
"Xxxxx Options"); (v) that certain note payable from the Company
in favor of Xxxxx X. Xxxxx in the principal amount of $150,000
subsequently amended by that certain Second Replacement
Promissory Note dated August 31, 1998 in the principal amount of
$152,963.71 (the "Note"); and (vi) any and all interests, rights
and claims, direct or indirect, in the foregoing (the "Residual",
collectively, the Warrants, the Royalties, the Company Options,
the Xxxxx Options, the Note and the Residual shall be referred to
as the "Xxxxx Assets").
B. Assignors desire to transfer, assign, deliver, cancel
and render void, satisfied, paid in full and of no further effect
the Xxxxx Assets in favor of the Company.
C. Assignors have executed on even date herewith a
Purchase and Sale Agreement (the "Purchase Agreement") among
Assignors, as Assignors, Xxxxxxx Xxxxx, an individual ("Xxxxx"),
Xxx Xxxx, an individual ("Xxxx"), Xxx Xxxxx, an individual
("Xxxxx"), and Xxxxx Xxxxxx, an individual ("Crabbe,"
collectively with Xxxxx, Xxxxx and Xxxx, "Purchasers") for the
purposes of (i) selling, transferring, assigning and delivering
885,560 shares of common stock, $.001 par value, to Purchasers
and (ii) to transferring, assigning, delivering, canceling and
rendering void, satisfied, paid in full and of no further effect
the Xxxxx Assets in favor of the Company.
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
ASSIGNMENT
1.1 ASSIGNMENT OF RIGHTS, TITLES, BENEFITS AND INTERESTS
Assignors hereby absolutely and unconditionally transfer,
set over and assign to the Company all of Assignors' acquired
rights, titles, benefits and interests currently owned or
hereinafter acquired, to the Xxxxx Assets upon the closing of the
Purchase Agreement.
1.2 ABSOLUTE ASSIGNMENT
Notwithstanding the transfer, assignment, delivery and
cancellation of the Xxxxx Assets in favor of the Company as
contemplated in this Agreement, upon the Closing (as provided for
in the Purchase Agreement), Assignors shall forever relinquish to
the Company any and all past, present and future interests,
rights or claims, direct or indirect, in the Xxxxx Assets and in
any of their intellectual property rights in, including, without
limitation, any and all trademark and patent rights, the Random
Ejection Shuffler, the Fantasy 21 table game and the Safety Peek
playing card.
1.3 EVIDENCE OF OWNERSHIP
The parties hereby acknowledge that the instruments giving
rise to the Royalties, the Company Options and the Xxxxx Options
exist as parts of other documents, I.E. the Royalties and the
Company Options from that certain Funding Agreement dated January
15, 1996 by and between the Company, Xxxxx, Xxxxx Xxxxx, Xxxxxx
Xxxxx, Xxxxxx Xxxxx, Sharps International Limited Partnership and
Xxxxx-Xxxxx Partnership, and the Xxxxx Options from that certain
Third Round Funding Agreement dated September 10, 1996 by and
between the Company, Xxxxx, Xxxxx Xxxxx and Xxxxxx Xxxxx.
1.4 FURTHER ASSURANCES
Assignors and the Company hereby acknowledge that they will
use their reasonable 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. In case at any time after the
Closing any further action is necessary to carry out the purposes
of this Agreement or the Company with full title to the Xxxxx
Assets, Assignors and the Company will use their reasonable best
efforts to take all such necessary action.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ASSIGNORS
Assignors hereby make the following representations and
warranties to the Company, and Assignors warrant that the
following are true and accurate on the date hereof and will be
true and accurate on the Closing:
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2.1 TITLE TO XXXXX ASSETS
Assignors are the lawful, beneficial and record owner of the
Xxxxx Assets. Assignors own the Xxxxx Assets free and clear of
all security interests, claims, liens, pledges, options,
encumbrances, charges, agreements, voting trusts, proxies, and
other arrangements and restrictions (collectively
"Encumbrances"). Assignors have not received notice of any
adverse claim or Encumbrance. Upon the transfer of the Xxxxx
Assets as provided for in this Agreement, the Company will
acquire the beneficial, legal, valid and indefeasible title to
the Xxxxx Assets, free and clear of all Encumbrances.
2.2 AUTHORITY
To Assignors best knowledge, Assignors have the full right,
power, legal capacity and authority to enter into, and perform
its obligations under this Agreement, including the transfer,
assignment, delivery and cancellation of the Xxxxx Assets in
favor of the Company.
2.3 DIFFERENCE IN FACTS
Assignors hereby represent and warrant that they have
conducted all necessary due diligence with respect to the subject
matter of this Agreement and that they have been provided with
every opportunity to inquire about the business operations,
financial situation and presently known or contemplated business
prospects and opportunities of the Company and to review any and
all documents, records, and other non-public information
regarding the Company. Confidential Information shall be defined
as any and all non-public information regarding the Company's
products, including, but not limited to, that information
regarding the Random Ejection Shuffler, the Fantasy 21 table game
and the Safety Peek playing card, and any other non-public
information provided by the Company and/or Purchasers to
Assignors in conjunction with this Agreement. Assignors
acknowledge and understand that included among Purchasers are
directors of the Company who stand in a position of knowledge
with respect to both publicly disclosed and non-publicly
disclosed information regarding the business operations,
financial condition and business prospects and opportunities of
the Company. Assignors represent and warrant that have been told
that the value of the Shares may increase significantly in the
future and have entered into this Agreement willingly and fully
advised of the economic consequences thereby, including the
potential future economic benefits or detriments of ownership of
the Shares and the Xxxxx Assets. Assignors represent and warrant
that they 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 CONFIDENTIALITY
Assignors hereby represent and warrant that Assignors shall
take reasonable precautions to safeguard that the all
Confidential Information will be kept and maintained confidential
by Assignors; will not be disclosed to any third person; will
under no circumstances (and without in any manner limiting the
preceding clause) be disclosed to, or utilized in connection
with, any
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supplier, customer or competitor (present and potential) of the
Company's (including any such person now or hereafter controlled
by Assignors); and will not in any way be used, or be permitted
to be used, in a manner detrimental to the business or prospects
of the Company. Without limiting the foregoing, Assignors
further represent and warrant that none of the Confidential
Information or any other information provided by the Company to
Assignors will be used by Assignors, or disclosed to others for
use, in connection with purchasing, selling or trading in the
Company's securities in any manner that is in violation of legal
or regulatory restrictions applicable from time to time, and
Assignors acknowledge a duty not to purchase, sell or trade in
securities on the basis of any material "inside" information that
is not publicly known. Notwithstanding any other provision
contained in this Agreement, the representations and warranties
contained in this Section 3.5, will terminate on May 1, 2001.
2.5 BINDING NATURE OF AGREEMENT
This Agreement constitutes the valid and binding obligation
of Assignors, enforceable against Assignors in accordance with
its terms.
2.6 NO VIOLATION
To Assignors best knowledge, neither the execution and
delivery of this Agreement, the consummation of the transactions
contemplated hereby, nor the fulfillment of the terms hereof by
Assignors will conflict with, or result in a breach of or default
under, any of the terms or provisions of: (i) any agreement,
note, indenture, mortgage, deed of trust, instrument lease or
franchise to which Assignors are a party or by which it or any of
its assets or properties are bound; or (ii) any law, judgment,
order, arbitration award, rule, regulation, ordinance, writ,
injunction or decree of any governmental agency or
instrumentality or court applicable to or having jurisdiction
over Assignors or the Xxxxx Assets.
2.7 NO REGULATORY APPROVAL
To Assignors best knowledge, no consent, approval or
authorization of, or filing with, any governmental authority or
other person or entity (including, without limitation, any gaming
authorities) is required in connection with the execution,
delivery and performance of this Agreement by Assignors.
2.8 NO COMMISSION OR FINDER'S FEE
Assignors have not dealt with any broker or finder in
connection with any of the transactions contemplated by this
Agreement, and to the best of its knowledge, no broker or other
person is entitled to any commission or finder's fee in
connection with such transactions.
2.9 NO REPRESENTATIONS UNTRUE
No representation made by Assignors in this Agreement
contains or will contain any untrue statement of material fact or
omit to state any material fact known to Assignors necessary to
make any statement, warranty or representation not misleading to
Purchasers. Assignors know of no material facts or conditions
adversely affecting the value of the Xxxxx Assets which have not
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been disclosed to the Company. Except as set forth in this
Agreement, Assignors do not make any representations or
warranties to the Company.
2.10 NO RELIANCE
Assignors acknowledge that the Company has not made and does
not make any representations or warranties concerning the past or
future performance of the Company. In making its investment
decision, Assignors have relied upon its own examination of the
Company, including the merits and the risks involved. Assignors
have consulted its own attorney, business advisor and/or tax
advisor as to legal, business and/or tax advice. Assignors
possess sufficient business probity and sophistication to assess
the merits and the risks of transferring and assigning the Xxxxx
Assets and/or have consulted with persons of his own choosing who
possess such probity and sophistication to advise Assignors of
the merits and the risks attendant to the transactions called for
under this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
The Company hereby makes the following representations and
warranties to Assignors, and the Company hereby warrants that the
following are true and accurate on the date hereof and will be
true and accurate as the Closing:
3.1 AUTHORITY
The Company has the full right, power, legal capacity and
authority to enter into, and perform its obligations under this
Agreement.
3.2 BINDING NATURE OF AGREEMENT
This Agreement constitutes the valid and binding obligation
of the Company, enforceable against the Company in accordance
with its terms.
3.3 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 Company will conflict
with, or result in a breach of or default under, any of the terms
or provisions of: (i) any agreement, note, indenture, mortgage,
deed of trust, instrument, lease or franchise to which the
Company is a party or by which it or any of its assets or
properties are bound; or (ii) any law, judgment, order,
arbitration award, rule, regulation, ordinance, writ, injunction
or decree of any governmental agency or instrumentality or court
applicable to or having jurisdiction over Purchasers or any of
its assets or properties.
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3.4 NO COMMISSION OR FINDER'S FEE
Purchasers have not dealt with any broker or finder in
connection with any of the transactions contemplated by this
Agreement, and to the best of its knowledge, no broker or other
person is entitled to any commission or finder's fee in
connection with such transactions.
3.5 NO REPRESENTATIONS UNTRUE
No representation made by the Company in this Agreement
contains or will contain any untrue statement of material fact or
omit to state any material fact known to the Company necessary to
make any statement, warranty or representation not misleading to
Assignors. Except as set forth in this Agreement, the Company
does not make any representations or warranties to Assignors.
3.6 GAMING BUSINESS
The Company hereby acknowledges that Xxxxx X. Xxxxx is in
the gaming business.
ARTICLE IV
COSTS
The Company and Assignors shall each pay all costs and
expenses incurred or to be incurred by each of them respectively
in negotiating and preparing this Agreement and in taking
whatever actions may be necessary or appropriate to consummate
the transactions contemplated by this Agreement, including the
costs of obtaining any consents or approvals.
ARTICLE V
RELEASE
5.1 MUTUAL RELEASE
For valuable consideration, the sufficiency of which is
hereby acknowledged, Assignors and the Company, each jointly
and/or individually, on behalf of themselves, their respective
insurers, principals, successors, predecessors, parents,
affiliates, subsidiaries, divisions, officers, directors,
shareholders, employees, attorneys, heirs, executors and
administrators, hereby remise, acquit and forever release the
other party, and their 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
Xxxxx Assets and/or this Agreement and any other matter related
thereto, save and except for the representations and warranties
contained in Article II and Article III, those matters for which
indemnification is granted pursuant to
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Article VI hereof, and that certain Agreement dated May 6, 1998
by and between Xxxxx X. Xxxxx and the Company.
5.2 FUTURE LITIGATION
Except as provided for in Article VII hereof, Assignors and
the Company, 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 and any other matter related
thereto or any way to or with respect to the subject matter of
the Xxxxx Assets and/or this Agreement as they relate to the
parties.
ARTICLE VI
INDEMNIFICATION
6.1 INDEMNIFICATION OF THE COMPANY
Assignors covenant and agree to indemnify, save and hold
harmless the Company and its respective successors, assigns and
affiliates from and against the following:
a. all liabilities of Assignors of any nature,
whether accrued, absolute, contingent or otherwise related
to the Xxxxx Assets;
b. any damage by reason of liability or deficiency in
assets resulting from any misrepresentation, breach of
warranty or nonfulfillment of any agreement on the part of
Assignors under this Agreement, or to be furnished to the
Company in connection herewith;
c. all liabilities arising from or connected with any
property, right or matter in any way related to the Xxxxx
Assets prior to the mutual execution hereof including,
without limitations, any liability for breach of contract,
personal injury or property damage, except to the extent
heretofore disclosed by the Assignors to the Company in
writing; and
d. all actions, suits, proceedings, demands, damages,
assessments, judgments, costs and expenses incident to any
of the foregoing, including, without limitation, attorneys'
fees.
6.2 INDEMNIFICATION OF ASSIGNORS
The Company covenants and agrees to indemnify, save and hold
harmless Assignors from and against the following:
a. any damage by reason of liability or deficiency in
assets resulting from any misrepresentation, breach of
warranty or nonfulfillment of any agreement on the part of
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the Company under this Agreement, or to be furnished to the
Assignors in connection herewith; and
b. all actions, suits, proceedings, demands, damages,
assessments, judgments, costs and expenses incident to any
of the foregoing, including, without limitation, attorneys'
fees.
ARTICLE VII
GENERAL PROVISIONS
7.1 CAPTIONS
The subject headings or captions of the sections and
subsections of this Agreement are included only for purposes of
convenience and shall not affect the construction or
interpretation of any provisions contained herein.
7.2 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.
7.3 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.
7.4 NOTICE
Any and all notices required under this Agreement shall be
in writing and shall be either (i) hand-delivered; (ii) mailed,
first-class postage prepaid, certified mail, return receipt
requested; or (iii) delivered via a nationally recognized
overnight courier service, addressed to:
SELLERS: Xxxxx Xxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
THE COMPANY: 0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: President
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All notices hand-delivered or delivered via overnight
courier shall be deemed delivered as of the date actually
delivered. All notices mailed shall be deemed delivered as of
three (3) business days after the date postmarked. Any changes
in any of the addresses listed herein shall be made by notice as
provided in this Section 7.4.
7.5 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.
7.6 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 claiming 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.
7.7 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.
7.8 GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington in effect on
the date of this Agreement without resort to any conflict of laws
principles, and the courts of the State of Washington shall have
sole and exclusive jurisdiction over any matter brought under, or
by reason of, this Agreement.
7.9 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. Any signature page of this Agreement may be detached
from any counterpart without impairing the legal effect to any
signatures thereon, and may be attached to another counterpart,
identical in form thereto, but having attached to it one or more
additional signature pages. Delivery by any party of telecopied,
counterpart signature pages shall be as binding an execution and
delivery of this Agreement by such party as if the party had
delivered an actual physical
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original of this Agreement with an ink signature from such party.
Any party delivering this Agreement by telecopy shall promptly
thereafter deliver an executed counterpart original hereof to the
other party.
7.10 NO THIRD PARTIES BENEFITED
This Agreement is made and entered into for the sole
protection and benefit of Purchasers and Assignors, their
successors and assigns, and no other person or persons shall have
any right of action hereon.
7.11 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.
7.12 TIME OF THE ESSENCE
At all times stated herein, time shall be of the essence.
7.13 CAPTIONS AND PRONOUNS
The captions appearing at the commencement of the sections
hereof are descriptive only and for convenience in reference to
this Agreement and in no way whatsoever define, limit or describe
the scope or intent of this Agreement nor in any way affect this
Agreement.
7.14 GENDER
Each party to this Agreement agrees that masculine or
feminine pronouns shall be substituted for the neuter form and
vice versa and the plural shall be substituted for the singular
form and vice versa in any place or places herein in which the
context requires such substitution or substitutions.
7.15 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.
7.16 SURVIVAL
The representations, warranties, covenants and agreements in
this Agreement or in any instrument delivered pursuant to this
Agreement shall survive the Closing.
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IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement on the date first set forth above.
"ASSIGNORS" "THE COMPANY"
XXXXX X. XXXXX, an individual CASINOVATIONS INCORPORATED,
a Nevada corporation
/s/ Xxxxx X. Xxxxx /s/ Xxxxxx X. Xxxx
----------------------------- ------------------------------
Xxxxx X. Xxxxx Xxxxxx X. Xxxx
President
Xxxxx X. Xxxxx, an individual
/s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx
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