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EXHIBIT 10.3
CALL AGREEMENT
THIS CALL AGREEMENT (this "Agreement") dated as of December 25, 1999, is
entered into by and between Xxxxxxx X. Xxxxxxxx, an individual ("Xxxxxxxx"), and
Venture Catalyst Incorporated, formerly known as Inland Entertainment
Corporation, a Utah corporation (the "Company").
RECITALS:
X. Xxxxxxxx is the owner of 750,000 shares of the Company's common
stock, par value $.001 per share, represented by Certificate No. SD3572 (which,
together with any other shares of the Company's common stock subsequently
acquired by Xxxxxxxx, are referred to herein as the "Shares").
X. Xxxxxxxx and the Company have entered into that certain Settlement
and Release Agreement dated as of the date hereof (as the same may be amended,
modified or restated from time to time, the "Settlement Agreement").
X. Xxxxxxxx and the Company have entered into that certain Stock Pledge
Agreement, dated as of the date hereof, between Xxxxxxxx and the Company (as the
same may be amended, modified or restated from time to time, the "Stock Pledge
Agreement")
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The Company's Call Option. In consideration for the Company's
entering into the Settlement and Release Agreement and the Company's payment of
$20,000 on the date hereof, Xxxxxxxx hereby grants to the Company the right and
option (the "Call Option") to require Xxxxxxxx to sell to the Company all or a
part of the Shares at an exercise price of $2.50 per Share. The Call Option
shall be exercisable in accordance with the provisions hereof at any time for a
period of two years, from December 25, 1999 to December 25, 2001 after the date
hereof.
2. Manner of Exercise. The Call Option may be exercised by the Company
from time to time during the exercise period for all or a part of the Shares by
means of a written notice of exercise signed by an authorized officer of the
Company and given to Xxxxxxxx.
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3. Payment and Delivery. Within five (5) days after the receipt of
notice delivered to Xxxxxxxx by the Company pursuant to Section 2, Xxxxxxxx
shall deliver to the Company the Shares free and clear of any liens, claims,
encumbrances, security interests, options, charges and restrictions of any kind,
and the Company shall pay to Xxxxxxxx the purchase price therefor; provided,
however, that if there is a lien on any of the Shares pursuant to the Stock
Pledge Agreement, the Company or any other person exercising the Call Option
shall be entitled to deduct from the purchase price the amount necessary to
satisfy such lien in order to satisfy such lien and pay such amount to the
lienholder.
4. Representations, Warranties and Covenants of Xxxxxxxx. Xxxxxxxx
represents and warrants to the Company that:
(a) This Agreement constitutes the valid, binding and
enforceable obligation of Xxxxxxxx.
(b) Xxxxxxxx shall defend Xxxxxxxx'x title to the Shares and
sole beneficial ownership thereof against all persons claiming an interest
therein except the Company or any person claiming through the Company.
(c) Except for the restrictions imposed by the Stock Pledge
Agreement and restrictions on offerings and sales of securities imposed by
applicable securities laws of the United States of America or any state or
commonwealth thereof, there are not and will not be during the terms of this
Agreement any restrictions upon the sale or other disposition of any of the
Shares.
(d) Except as contemplated by Section 4(c), Xxxxxxxx has good
and valid title to the Shares, free and clear of any liens, claims,
encumbrances, security interests, options, charges and restrictions of any kind,
and Xxxxxxxx now has and will have during the term of this Agreement, without
obtaining the consent of any governmental authority, stock exchange or any other
person except the Company, the right to pledge, to grant a security interest in,
and otherwise to transfer and dispose of the Shares free of any liens, security
interests and encumbrances, and free of any rights or equities in favor of any
other persons, except those created by this Agreement.
(e) During the term of this Agreement, (i) Xxxxxxxx shall not
sell, transfer, assign or otherwise dispose of, grant any option with respect
to, or mortgage, pledge (other than pursuant to the Stock Pledge Agreement or
this Agreement) or otherwise encumber the Shares or any interest therein, and
(ii) if the Shares are foreclosed upon or become undeliverable, Xxxxxxxx shall
provide to the Company replacement shares of the Company's common stock.
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5. Authorization and Request. Xxxxxxxx hereby (i) authorizes the
Company's Transfer Agent to deliver the Shares to the Company upon the exercise
of the Call Option to the extent that the Shares are held by the Company's
Transfer Agent; and (ii) requests the Company's Transfer Agent that all
certificates for the Shares be legended to the effect that such Shares are
subject to the terms of this Agreement and the Stock Pledge Agreement.
6. Transferability of the Call Option; Restrictive Legend. The Call
Option shall be freely transferable by the Company. Each certificate for the
Shares shall be stamped or otherwise imprinted with a legend substantially in
the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A CALL AGREEMENT AND A STOCK PLEDGE AGREEMENT, EACH BY AND BETWEEN
VENTURE CATALYST INCORPORATED, FORMERLY KNOWN AS INLAND ENTERTAINMENT
CORPORATION, AND XXXXXXX X. XXXXXXXX, AND EACH DATED AS OF DECEMBER 25, 1999,
COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY, AND ARE HELD AND
MAY BE SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF ONLY IN
ACCORDANCE THEREWITH."
7. Termination. The Call Option shall terminate on December 25, 2001.
8. Miscellaneous.
(a) Waivers. No failure to exercise and no delay in exercising
on the part of the Company, any right, power or remedy under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, power or remedy hereunder or thereunder preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
failure of the Company to insist upon the strict observance or enforcement of
any provision of this Agreement shall not be construed as a waiver or
relinquishment of such provision. Any waiver of any right, power, remedy, term
or condition contained herein shall only be effective if it is in writing and
signed by the Company.
(b) Survival of Agreements, etc. All representations,
warranties, covenants and agreements made by Xxxxxxxx in this Agreement or in
any instrument, document or certificate furnished hereunder or in connection
herewith shall be deemed to have been relied upon by the Company,
notwithstanding any investigation heretofore or hereafter made by the Company,
and shall survive the delivery of this Agreement and the incurrence of any
obligations.
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(c) Notices. All notices, requests, demands, claims and other
communications hereunder shall be in writing and shall be deemed to have been
duly given (i) if personally delivered; (ii) if sent by telecopy, facsimile or
other electronic means; or (iii) if mailed by overnight or by first class,
certified or registered mail, postage prepaid, return receipt requested and
properly addressed as follows:
If to Xxxxxxxx, to:
Xxxxxxx X. Xxxxxxxx
000 Xxxxxx Xxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000, c/o Xxxxxxx X. Xxxxxxx, Esq.
e-mail : xxxxxxxx@xxxxxxxxxx.xxxxxxx.xxxx.xxx
with a copy to:
Sparber, Ferguson, Xxxxxx & Xxxx
000 X Xxxxxx, 00xx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
e-mail: xxxxxxxx@xxxxxxxxxx.xxxxxxx.xxxx.xxx
If to the Company, to:
Venture Catalyst Incorporated
16868 Xxx Xxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx XxXxxxxx
Vice President, Chief Financial Officer,
Secretary and Treasurer
Fax: (000) 000-0000
e-mail: xxxxxxxxx@xxxx.xxx
with a copy to:
Paul, Hastings, Xxxxxxxx and Xxxxxx, LLP
000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
e-mail: xxxxxxxxxxxxx@xxxx.xxx
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Such addresses may be changed from time to time, by means of a notice given in
the manner provided above. Notice will conclusively be deemed to have been given
when personally delivered (including, but not limited to, by messenger or
courier); or if given by mail, on the date of delivery, if given by Federal
Express or other similar overnight service or on the third day after being sent
by first class, certified or registered mail; or if given by telecopy or
facsimile machine or other electronic media, when confirmation of transmission
is indicated by the sender's machine. Notices, requests, demands and other
communications delivered to legal counsel of any party hereto, whether or not
such counsel shall consist of in-house or outside counsel, shall not constitute
duly given notice to any party hereto.
(d) Amendments. This Agreement may only be amended by a writing
executed by Xxxxxxxx and the Company.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California without giving
effect to the principles of conflict of laws. Xxxxxxxx and the Company hereby
agree that all actions or proceedings arising directly or indirectly hereunder,
whether instituted by Xxxxxxxx or the Company, shall be litigated in courts
having situs within the State of California, County of San Diego and Xxxxxxxx
and the Company hereby expressly consent to the jurisdiction of any local, state
or Federal court located within said state and counties, and consent that any
service of process in such action or proceeding may be made by personal service
upon Xxxxxxxx or the Company wherever Xxxxxxxx or the Company may be located,
respectively, or by certified or registered mail directed to Xxxxxxxx or the
Company at his/its last known address. Xxxxxxxx and the Company waive trial by
jury, any objection based on forum non conveniens, and any objection to venue of
any action instituted hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
(g) Section Headings. The headings set forth in this Agreement
are for convenience of reference only and shall not be deemed to define or limit
the provisions hereof or to affect in any way their construction and
application.
(Signature Page Follows)
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(SIGNATURE PAGE - CALL AGREEMENT)
IN WITNESS WHEREOF, Xxxxxxxx and the Company have executed and delivered
this Agreement on the date first above written.
XXXXXXXX:
/s/ XXXXXXX X. XXXXXXXX
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Xxxxxxx X. Xxxxxxxx
THE COMPANY:
VENTURE CATALYST INCORPORATED,
a Utah corporation
By: /s/ L. XXXXXX XXXXX, XX
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L. Xxxxxx Xxxxx, XX
Chairman of the Board and
Chief Executive Officer
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