EXHIBIT 10.2
EXCHANGE AGREEMENT
BETWEEN THE UNDERSIGNED:
1 - Cleopatra's World Inc., a joint stock company having its head office at
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hereinafter called the "Company"
On the one hand,
and
2 - Cleopatra Palace Limited, a joint stock company having its head office at
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hereinafter called "CPL").
On the other hand
Preamble
Whereas, the Company owns ordinary shares of Cleopatra's Palace Resorts
and Casinos Limited, a limited liability company organised under the laws of
England ("CPR&C") ; and,
Whereas, CPL owns certain Promissory Notes issued by the Company in the
aggregate principal amount of Thirteen Million Dollars, excluding accrued
interest through the date hereof, copies of which are annexed hereto on Schedule
"1" (the "Notes"); and,
Whereas, the Company wishes to extinguish and settle the
Notes by way of the transfer to CPL of 1.00 par value shares of
Cleopatra Palace Resorts and Casinos Limited ("CPR&C").
The following has been agreed and settled:
Article 1:
On the basis of the representations and warranties herein contained,
subject to the terms and conditions set forth herein, CPL agrees to exchange the
Notes for Eight Million, Four Hundred Ninety Thousand, Six Hundred Twenty Five
(8,490,625) shares of CPR&C 1.00 pound sterling par value ordinary shares (the
"CPR Shares").
Article 2:
The closing of the exchange contemplated by this Agreement (the "Closing"
or "Transfer Date") shall occur upon the transfer of the Notes to the Company,
but shall not be later than 30th September 1998. At the Closing, the Company
shall deliver the Notes to CPL and CPL shall issue and deliver the CPR Shares to
the Company. Notwithstanding the date of Closing, the Effective Date shall be
the 1st of July, 1998.
Article 3:
The parties agree to select a mutually agreeable third party to act as
escrowholder ("Escrowholder") and to effect the exchange transaction
contemplated through such Escrowholder, through which the parties will deliver
the Notes and the CPR Shares
Article 4:
CPL hereby represents and warrants to the Company that:
4.1 CPL is a corporation validly existing and in good standing
under the laws of the British Virgin Islands, with the
power and authority to carry on its business as now being
conducted. The execution and delivery of this Agreement
and the consummation of the transaction contemplated in
this Agreement have been, or will be prior to Closing, duly
authorized by all requisite corporate action on the part of
CPL. This Agreement has been duly executed and delivered
by CPL and constitutes a binding, and enforceable
obligation of CPL;
4.2 No authorization, consent, or approval of, or registration
or filing with, any governmental authority or any other
person is required to be obtained or made by CPL in
connection with the execution, delivery, or performance of
this Agreement, or if required, CPL has or will obtain same
prior to Closing;
4.3 CPL is not a defendant or a plaintiff against whom a
counterclaim has been made or reduced to judgement, in any
litigation or proceedings before any local, state or U.S.
government, or any department, board, body or agency
thereof, which could result in a claim against the Notes;
4.4 The CPR Shares are validly issued by CPR&C and, to the best
of the Company's knowledge, the CPR Shares were issued for
valid consideration which was delivered to and accepted by
CPR&C, as the issuer. Further, there is not in effect or
pending, any claim by CPR&C which would serve as an offset
to or to restrict the transfer or exchange of the Notes as
contemplated herein. Additionally, CPL has not created any
option, security interest or encumbrance involving the CPR
Shares that would give rise to any claims by third parties
or otherwise conflict with or preclude the exchange as
contemplated herein; and
4.5 This Agreement has been duly executed by CPL, and the
execution and performance of this Agreement will not
violate, or result in a breach of, or constitute a default
in any agreement, instrument, judgement, order or decree to
which CPL is a party or to which CPL is subject.
Article 5:
All obligations of the Company under this Agreement are subject to the
fulfillment, prior to or as of the Closing Date, of each of the following
conditions:
5.1 The Company shall have delivered the CPR Shares to the
Escrowholder with all appropriate executed stockpowers and
transfer documents.
5.2 CPL shall have taken all action necessary to assign and
deliver the original Notes to Escrowholder marked "Paid."
5.3 All instruments and documents delivered to the Company and
CPL pursuant to the provisions of this Agreement shall be
satisfactory to the Company and CPL and their legal
counsel.
Article 6:
The Company and CPL each represent that, by virtue of their respective business
activities and economic bargaining power or otherwise, they have been able to
conduct their own due diligence and have had access to or have been furnished
with, prior to or concurrently with the execution hereof, the information which
they consider to be adequate to make a decision to exchange the Notes for the
CPR Shares.
Article 7:
The officers of the Company and CPL executing this Agreement are duly authorized
to do so and each party has taken all action required by law or otherwise to
properly and legally execute this Agreement.
Article 8:
Any notice under this Agreement shall be deemed to have been sufficiently given
if sent by registered or certified mail, postage prepaid, addressed as follows:
To CPL: Cleopatra's World Inc.
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With copy to: NuOasis International Inc.
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Nassau, Bahamas
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To CPL: Cleopatra Palace Limited
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or to any other address which may hereafter be designated by either party by
notice given in such manner. All notices shall be deemed to have been given as
of the date of receipt.
Article 9:
This Agreement sets forth the entire understanding between the parties hereto
and no other prior written or oral statement or agreement shall be recognized
or enforced.
Article 10:
If a court of competent jurisdiction determines that any clause or provision of
this Agreement is invalid, illegal or unenforceable, the other clauses and
provisions of the Agreement shall remain in full force and effect and the
clauses and provision which are determined to be void, illegal or unenforceable
shall be limited so that they shall remain in effect to the extent permissible
by law.
Article 11:
None of the parties hereto may assign this Agreement without the express written
consent of the other parties and any approved assignment shall be binding on and
inure to the benefit of such successor or, in the event of death or incapacity,
on assignor's heirs, executors, administrators and successors.
Article 12:
This Agreement has been negotiated and is being contracted for outside of
England but shall be governed by the laws of England, notwithstanding any
conflict-of-law provision to the contrary.
Article 13:
If any legal action or other preceding (non-exclusively including arbitration)
is brought for the enforcement of or to declare any right or obligation under
this Agreement or as a result of a breach, default or misrepresentation in
connection with any of the provisions of this Agreement, or otherwise because of
a dispute among the parties hereto, the prevailing party will be entitled to
recover actual attorney's fees (including for appeals and collection) and other
expenses incurred in such action or proceeding, in addition to any other relief
to which such party may be entitled.
Article 14:
Nothing in this Agreement, expressed or implied, is intended to confer upon any
person, other than the parties hereto and their successors, any rights or
remedies under or by reason of this Agreement, unless this Agreement
specifically states such intent.
Article 15:
At any time, and from time to time after the Closing, each party hereto will
execute such additional instruments and take such action as may be reasonably
requested by the other party to confirm or perfect title to the CPR Shares to be
transferred hereunder, or otherwise to carry out the intent and purposes of this
Agreement.
Article 16:
Every right and remedy provided herein shall be cumulative with every other
right and remedy, whether conferred herein, at law, or in equity, and may be
enforced concurrently herewith, and no waiver by any party of the performance of
any obligation by the other shall be construed as a waiver of the same or any
other default then, theretofore, or thereafter occurring or existing. At any
time prior to Closing, this Agreement may be amended by a writing signed by all
parties hereto.
Article 17:
The section and subsection headings in this Agreement are
inserted for convenience only and shall not affect in any way
the meaning or interpretation of this Agreement.
Article 18:
A facsimile, telecopy or other reproduction of this instrument may be executed
by one or more parties hereto and such executed copy may be delivered by
facsimile or similar instantaneous electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties agree to execute an
original of this instrument as well as any facsimile, telecopy or other
reproduction hereof.
IN WITNESS WHEREOF, this Agreement is executed in duplicate copies of like terms
and effective the 1st day of July, 1998.
Cleopatra's World Inc.
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Authorised signature(s)
For Cleopatra Palace Limited
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Authorised signature(s)