AGREEMENT
THIS AGREEMENT (this "Agreement") entered into as of the
24th day of March, 1999, by and between Dominion Income
Management, Inc., a Washington corporation ("Dominion"), and
Casinovations Incorporated, a Washington corporation and all
successors thereto ("Casinovations").
W I T N E S S E T H:
WHEREAS, by virtue of that certain Subscription Agreement
for Casinovations common stock dated December 4, 1998 by and
between Dominion and Casinovations (the "Subscription
Agreement"), Dominion offered to purchase 200,000 shares of
Casinovations common stock (the "Shares") for $500,000;
WHEREAS, Casinovations accepted the Subscription Agreement
and payment of $500,000 and caused to be issued and delivered to
Dominion that certain Casinovations Stock Certificate No. CVI
1088 dated December 14, 1998 in the amount of 200,000 shares (the
"Stock Certificate");
WHEREAS, First Global Securities, Inc., located at 000 Xxxx
Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000, whose
principal is Xxxxx Xxxxxxx, an individual (collectively and
hereinafter referred to as "Trenham/First Global"), acted for and
on behalf of Casinovations as placement agent in connection with
the execution of the Subscription Agreement and placement of the
Shares to Dominion;
WHEREAS, the Shares were placed pursuant to that certain
registration statement on Securities and Exchange Commission Form
SB-2, as amended, which registration statement was declared
effective by the Securities and Exchange Commission (Registration
No. 333-31373) (the "Registration Statement");
WHEREAS, Dominion has contacted Trenham/First Global and
Casinovations demanding the right to revoke and/or rescind the
Subscription Agreement;
WHEREAS, Dominion has alleged that it executed the
Subscription Agreement in reliance upon statements,
representations and assurances given to Dominion by Trenham/First
Global that were untrue or misleading and that such statements,
representations and assurances provide sufficient basis for
future legal action against Trenham/First Global and
Casinovations;
WHEREAS, Casinovations communicated Dominion's concerns and
allegations to Trenham/First Global and, as a result, received
from Trenham/First Global an indemnification, as memorialized in
that certain Indemnity Agreement dated January 15, 1999 by and
between Casinovations and Trenham/First Global, to hold
Casinovations and its successors harmless from any losses,
demands, settlements or other damages resulting from or related
to Dominion's concerns and allegations, the Subscription
Agreement, the Shares and any other matter related thereto.
WHEREAS, Casinovations, Dominion and Trenham/First Global
have had communications directly and through counsel regarding
the basis for Dominion's demand to
revoke and/or rescind said Subscription Agreement and
Casinovations has continually asserted the validity of the
Subscription Agreement;
WHEREAS, although Casinovations neither admits nor denies
Dominion's concerns and allegations, Casinovations and Dominion
enter into this Agreement solely for the purposes of avoiding
litigation without agreeing with the other party's position with
respect to validity or claims of any kind whatsoever that
Casinovations and Dominion intend to fully pursue against
Trenham/First Global;
NOW THEREFORE, in consideration of the mutual covenants,
promises, representations, understandings and agreements
hereinafter set forth, Dominion and Casinovations hereto agree
that the recitals set forth above are true and accurate and are
hereby incorporated in and made a part of this Agreement, and
further covenant and agree as follows:
1. PAYMENT. At the Closing (as defined herein),
Casinovations will pay or cause to be paid to Dominion $450,000
in consideration for the rescission of the Subscription
Agreement. At the Closing, the Subscription Agreement will be
deemed rescinded, and null and void; however, the Shares will
remain issued and outstanding, subject to the offering terms of
the Registration Statement, and available, at Casinovations' sole
and absolute discretion, to be sold to an investor under the
terms of the Registration Statement or otherwise.
2. CLOSING. The Closing will take place on or before 5:00
p.m. Las Vegas, Nevada time on Friday, April 30, 1999 (the
"Closing"). The location of the Closing will be at a time and a
place mutually agreed by the parties. Further, Dominion and
Casinovations agree that the placement of the appropriate funds
and documents in the hands of their respective counsel by the
dates provided for herein shall be deemed satisfactory for the
Closing to occur.
(a) DELIVERY ITEM OF CASINOVATIONS. At the Closing,
Casinovations shall deliver the following:
(i) Cash, cashiers check, or certified funds
payable to Dominion in the amount of $450,000.
(b) DELIVERY ITEMS OF DOMINION. At the Closing,
Dominion shall deliver to Casinovations the following:
(i) The Stock Certificate, endorsed in blank and
with signature medallion;
(ii) An irrevocable stock or bond power for said
Shares in form and substance reasonably acceptable to
Casinovations and its counsel consistent with Section
2(b)(i); and
(iii) Such other and further documents and
instruments that may be reasonably required by
Casinovations to complete and facilitate the rescission
in accordance with this Agreement.
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3. PERFORMANCE. Dominion agrees that performance by
Casinovations in accordance herewith will constitute full,
complete and unconditional performance by Casinovations.
Dominion will look solely to Trenham/First Global for
performance, payment, documentation and completion of all
obligations solely to and by Trenham/First Global, including, but
not limited to, the payment of $50,000 to Dominion, and will not
look to Casinovations for any performance, liability, obligation,
guaranty, satisfaction or performance whatsoever of any kind or
any nature by Casinovations in respect of the obligations of
Trenham/First Global.
4. FURTHER ASSURANCES. Dominion and Casinovations 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, Dominion and Casinovations
will use their reasonable best efforts to take all such necessary
action.
5. AUTHORITY. Dominion and Casinovations, respectively,
have all requisite corporate power and authority to enter into
and perform this Agreement and to carry out their respective
obligations under this Agreement. This Agreement and the
transactions contemplated by this Agreement have been duly and
validly authorized by all necessary corporate action on the part
of both Dominion and Casinovations, respectively. This Agreement
has been duly executed and delivered by both Dominion and
Casinovations and constitutes the legal, valid and binding
obligation of both Dominion and Casinovations, enforceable
against either Dominion or Casinovations in accordance with its
terms.
6. IRREVOCABLE PROXY. As further consideration for this
Agreement, in accordance with Section 23B.07.220 of the Revised
Code of Washington, Dominion hereby grants to Casinovations an
irrevocable proxy coupled with an interest to Casinovations to
vote all of the Shares at the Casinovations Annual Meeting of
Stockholders scheduled for Monday, March 29, 1999, in Las Vegas,
Nevada, and to vote the Shares in such manner and for such items
as Casinovations shall determine in its sole and absolute
discretion, including, but not limited to, in favor of the agenda
items for (a) the election of all Casinovations' directors, (b)
the reincorporation of Casinovations from the state of Washington
to the state of Nevada, and (c) the approval of the Casinovations
Stock Option Plan, as described in that certain Proxy Statement
of Casinovations dated March 6, 1999, and for such other matters
that may come before the stockholders of Casinovations from time
to time through and including the Closing provided for herein.
7. RELEASE. From the Closing and that day forward, for
valuable consideration, the sufficiency of which is hereby
acknowledged, Dominion, on behalf of itself, its successors,
predecessors, parents, affiliates, subsidiaries, divisions,
including, but not limited to its officers, directors,
stockholders, managers, employees, advisors, consultants,
insurers, attorneys, heirs, executors, administrators and
authorized representatives, hereby remises, acquits and forever
releases Casinovations, and its successors, predecessors,
parents, affiliates, subsidiaries, divisions, including, but not
limited to its officers, directors, shareholders, managers,
employees, advisors, consultants, insurers, attorneys, heirs,
executors, administrators and authorized representatives from
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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
obligations owed Trenham/First Global and any other matter
related thereto.
8. MUTUAL RELEASE. From the Closing and that day forward,
for valuable consideration, the sufficiency of which is hereby
acknowledged, Dominion and Casinovations, on behalf of
themselves, their respective successors, predecessors, parents,
affiliates, subsidiaries, divisions, including, but not limited
to their respective officers, directors, stockholders, managers,
employees, advisors, consultants, insurers, attorneys, heirs,
executors, administrators and authorized representatives, hereby
remise, acquit and forever release each other, 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 Shares, the
Subscription Agreement and any other matter related thereto as
they relate to Dominion and Casinovations.
9. FUTURE LITIGATION. Dominion and Casinovations, on
behalf of themselves, their respective successors, predecessors,
parents, affiliates, subsidiaries, divisions, including, but not
limited to their respective officers, directors, stockholders,
managers, employees, advisors, consultants, insurers, attorneys,
heirs, executors, administrators and authorized representatives,
covenant and agree to forever refrain from instituting,
prosecuting, maintaining, or assisting with any claims, suits and
actions against the other, which arise out of, or is or may be,
in whole or in part, based upon, related to or connected with the
Shares, the Subscription Agreement and any other matter related
thereto as they relate to Dominion and Casinovations.
10. RESERVATION. By entry of this Agreement, and any
related agreements, amendments or writings between Dominion and
Casinovations, Dominion and Casinovations reserve all claims that
they have or may have against Trenham/First Global under any
agreements, understandings or otherwise and the entry by Dominion
and Casinovations into this Agreement, the transactions
contemplated by this Agreement or any other transaction by and
between Dominion and Casinovations shall in no way, by
implication or otherwise, be deemed or construed to be a waiver,
diminishment of claim, or release by Dominion or Casinovations,
their respective affiliates, stockholders or other parties
claiming by or through either Dominion or Casinovations against
Trenham/First Global.
11. GENERAL PROVISIONS.
(a) AMENDMENT; MODIFICATION; 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
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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.
(b) ASSIGNMENT; BINDING EFFECT. 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.
(c) BINDING ARBITRATION. Any dispute, claim or
controversy of any kind, whether in contract or tort,
statutory or common law, legal or equitable, now existing or
hereafter arising under or in connection with, or in any way
pertaining to, this Agreement shall be resolved through
binding arbitration as governed by Chapter 38 of the Nevada
Revised Statutes. If a lawsuit is commenced by either
Dominion or Casinovations and an answer, not including an
application to compel arbitration, has been filed by the
other party, arbitration may thereafter be elected only upon
the consent of both Dominion or Casinovations. The decision
shall be binding on Dominion and Casinovations unless the
decision is vacated by the court as provided in Section
38.145 of the Nevada Revised Statutes.
(i) ARBITRATOR SELECTION. If arbitration is
elected, Dominion or Casinovations shall select an
arbitrator. If Dominion or Casinovations cannot agree
on one arbitrator, each party shall select an
arbitrator who will, in turn, select a third
arbitrator. The third arbitrator shall be a person who
has neither a business nor personal relationship with
either Dominion or Casinovations or their respective
legal counsel. All decisions made by a majority of the
arbitrators shall be binding on Dominion and
Casinovations.
(ii) ARBITRATION RULES. Except as provided by
Chapter 38 of the Nevada Revised Statutes or agreed
upon by Dominion and Casinovations, the arbitration
shall be conducted according to the Rules of the
American Arbitration Association now in effect or later
adopted. The arbitrator(s) shall rule on all relevant
aspects of the case, including the award of injunctive
relief, damages, or any other legal or equitable
remedies; the amount of attorneys' fees and the
decision as to who will pay them; and the costs
incurred to resolve the dispute, including the decision
as to whom is to pay the fees of the arbitrator(s).
(iii) JUDGMENT. Judgment, if any, upon award(s)
rendered by the arbitrator(s) may be entered into in
any court having competent jurisdiction.
(d) ENTIRE AGREEMENT. This Agreement (including all
exhibits, schedules and other documents referred to in this
Agreement (the "Incorporated Documents"), all of which are
hereby incorporated by reference), constitute the entire
agreement, and supersedes all prior discussions,
negotiations, agreements and understandings (both
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written and oral) among Dominion and Casinovations with
respect to the subject matter of this Agreement. All
obligations of either Dominion or Casinovations under any
Incorporated Document shall constitute an obligation of such
party under this Agreement. Any capitalized terms used in
any Incorporated Document which are not otherwise defined
therein shall have the respective meanings given such terms
in this Agreement.
(e) EXPENSES. Dominion and Casinovations 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.
(f) GOVERNING LAW; VENUE. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Nevada in effect on the date of this Agreement
without resort to any conflict of laws principles, and the
courts of the State of Nevada shall have sole and exclusive
jurisdiction over any matter brought under, or by reason of,
this Agreement.
(g) 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.
(h) NO THIRD PARTIES BENEFITED. This Agreement is
made and entered into for the sole protection and benefit of
Dominion and Casinovations, their respective successors and
assigns, and no other person or persons shall have any
benefit or right of action hereon.
(i) 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; (iii) transmitted
via telecopier provided that confirmation is obtained; or
(iv) delivered via a nationally recognized overnight courier
service, using the following information:
To Casinovations: 0000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
To Dominion: 00000 00xx Xxxxx X.X.
Xxxx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(j) SEVERABILITY. If any term, provision, covenant or
condition of this Agreement, or any application thereof,
should be held by a court of competent
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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.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
"Casinovations" "Dominion"
CASINOVATIONS INCORPORATED, DOMINION INCOME MANAGEMENT, INC.
a Washington corporation a Washington corporation
By: By:
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Xxxxxx X. Xxxx, Xxxxxx Xxxxx,
President and Chief _________________
Executive Officer
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