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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-KSB/A
AMENDMENT NO. 1
(MARK ONE)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED: JUNE 30, 1999
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____________ TO ____________ .
COMMISSION FILE NUMBER: 0-11532
INLAND ENTERTAINMENT CORPORATION
(NAME OF SMALL BUSINESS ISSUER IN ITS CHARTER)
UTAH 33-0618806
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
16868 VIA DEL CAMPO COURT, SUITE 200, SAN DIEGO, CALIFORNIA 92127
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
ISSUER'S TELEPHONE NUMBER: (858) 716-2100
SECURITIES REGISTERED UNDER SECTION 12(b) OF THE EXCHANGE ACT: NONE
SECURITIES REGISTERED UNDER SECTION 12(g) OF THE EXCHANGE ACT:
COMMON STOCK, $.001 PAR VALUE PER SHARE
(TITLE OF CLASS)
Check whether the issuer (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes [X] No [ ]
Check if there is no disclosure of delinquent filers in response to Item
405 of Regulation S-B contained in this form, and no disclosure will be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-KSB
or any amendment to this Form 10-KSB. [X]
State issuer's revenues for its most recent fiscal year: $15,200,635
As of September 17, 1999, the aggregate market value of the voting stock
held by non-affiliates of the registrant (based on the closing sale price of
such stock on such date) was approximately $6,238,433.
State the number of shares outstanding of each of the issuer's classes
of common equity as of the latest practicable date: At September 17, 1999, there
were 4,753,786 shares outstanding of the issuer's common stock, $.001 par value
per share (the only class of common equity).
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Proxy Statement prepared in connection with the Annual
Meeting of Shareholders to be held in 1999 -- Part III.
Transitional Small Business Disclosure Format (check one) Yes [ ] No [X]
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ITEM 13. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits. The Exhibits listed below are filed with the Commission as
part of this annual report on Form 10-KSB.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
2.1 Agreement and Plan of Reorganization by and among the Company,
Cyberworks, Inc., Inland Acquisition Corporation and Richard T.
Harrison dated August 25, 1998, previously filed as Exhibit 2.01 to
the Company's Current Report on Form 8-K dated September 10, 1998,
filed with the Commission on September 11, 1998 (File No. 0-11532)
(the "September 11, 1998 Current Report"), is hereby incorporated
herein by reference.
2.2 Agreement of Merger by and between Cyberworks, Inc. and Inland
Acquisition Corporation dated August 27, 1998, previously filed as
Exhibit 2.02 to the September 11, 1998 Current Report, is hereby
incorporated herein by reference.
2.3 Articles of Merger by and between Cyberworks, Inc. and Inland
Acquisition Corporation dated August 27, 1998, previously filed as
Exhibit 2.03 to the September 11, 1998 Current Report, is hereby
incorporated herein by reference.
2.4 Asset Purchase Agreement dated as of July 16, 1999 by and among the
Company, Typhoon Capital Consultants, LLC, Sanjay Sabnani and
Manisha Sabnani.
3.1 Amended and Restated Articles of Incorporation of the Company
(formerly known as Twin Creek Exploration Co., Inc.), previously
filed as Exhibit 3.1 to the Company's Annual Report on Form 10-KSB
for the Fiscal Year Ended June 30, 1995, filed with the Commission
on October 12, 1995 (File No. 0-11532) (the "Fiscal 1995 Annual
Report"), is hereby incorporated herein by reference.
3.2 Articles of Amendment of the Company, previously filed as Exhibit 3
to the Company's Quarterly Report on Form 10-QSB for the Quarterly
Period Ended December 31, 1997, filed with the Commission on
February 13, 1998 (File No. O-1152), is hereby incorporated herein
by reference.
3.3 Amended and Restated By-laws of the Company, previously filed as
Exhibit 3.1 to the Company's Quarterly Report on Form 10-QSB for the
Quarterly Period Ended March 31, 1996, filed with the Commission on
May 17, 1996 (File No. 0-11532) (the "March 1996 Quarterly Report"),
is hereby incorporated herein by reference.
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<S> <C>
MATERIAL CONTRACTS RELATING TO MANAGEMENT COMPENSATION PLANS OR
ARRANGEMENTS
10.1 1994 Stock Option Plan of Inland Casino Corporation, a Delaware
corporation, previously filed as Exhibit 10.2 to the Fiscal 1995
Annual Report, is hereby incorporated herein by reference.
10.2 The Company's 1995 Stock Option Plan, as amended, previously filed
as Appendix A to the Company's Proxy Statement dated October 27,
1998 filed with the Commission on October 28, 1997 (File No.
0-11532), is hereby incorporated herein by reference.
10.3 The Company's 1996 Non-employee Directors Stock Option Plan,
previously filed as Exhibit 10.3 to the Company's Annual Report on
Form 10-KSB for the Fiscal Year Ended June 30, 1998, filed with the
Commission on September 28, 1998 (File No. 0-11532) (the "Fiscal
1998 Annual Report"), is hereby incorporated by reference.
10.4 Settlement and Release Agreement dated as of February 10, 1998, by
and between the Company and Duane Eberlein, previously filed as
Exhibit 10.1 to the Company's Quarterly Report on Form 10-QSB for
the Quarterly Period Ended March 31, 1998, filed with the Commission
on May 15, 1998 (File No. 0-11532) (the "March 1998 Quarterly
Report"), is hereby incorporated herein by reference.
10.5 Settlement and Release Agreement dated as of March 6, 1998, by and
between the Company and Arthur Pfizenmayer, previously filed as
Exhibit 10.2 to the March 1998 Quarterly Report, is hereby
incorporated herein by reference.
10.6 Employment Agreement by and among the Company, Cyberworks, Inc. and
Richard T. Harrison dated August 27, 1998, previously filed as
Exhibit 99.01 to the September 11, 1998 Current Report, is hereby
incorporated herein by reference.
10.7 Noncompetition Agreement by and among the Company, Cyberworks, Inc.
and Richard T. Harrison dated August 27, 1998, previously filed as
Exhibit 99.02 to the September 11, 1998 Current Report, is hereby
incorporated herein by reference.
10.8 Employment Agreement by and between the Company and Sanjay Sabnani,
dated July 16, 1999.
OTHER MATERIAL CONTRACTS
10.9 Amended and Restated Consulting Agreement by and between the Company
and the Barona Group of Capitan Grande Band of Mission Indians (the
"Barona Tribe"), dated as of April 29, 1996,
</TABLE>
69
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<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<S> <C>
previously filed as Exhibit 10.7 to the Company's Annual Report on
form 10-KSB for the Fiscal Year Ended June 30, 1996, filed with the
Commission on October 5, 1996 (File No. 0-11532) (the "Fiscal 1996
Annual Report"), is hereby incorporated herein by reference.
10.10 Modification No. 1 to Amended and Restated Consulting Agreement
dated as of February 17, 1998, by and between the Company and the
Barona Group of Capitan Grande Band of Mission Indians, previously
filed as Exhibit 10.4 to the March 1998 Quarterly Report, is hereby
incorporated herein by reference.
10.11 Amended and Restated Gaming Machine Location Agreement by and
between SSK Game Enterprises and the Company, dated December 1,
1995, previously filed as Exhibit 10.16 to the Fiscal 1996 Annual
Report, is hereby incorporated herein by reference.
10.12 Amended and Restated Gaming Machine Location Agreement between Zino,
Inc. and the Company, dated December 1, 1995, previously filed as
Exhibit 10.17 to the Fiscal 1996 Annual Report, is hereby
incorporated herein by reference.
10.13 Amended and Restated Gaming Machine Location Agreement between
American Heritage Amusement Corporation and the Company, dated
December 1, 1995, previously filed as Exhibit 10.18 to the Fiscal
1996 Annual Report, is hereby incorporated herein by reference.
10.14 Stock Purchase and Settlement and Release Agreement by and among the
Company, Jonathan Ungar and Alan Henry Woods, dated September 27,
1996, previously filed as Exhibit 2.1 to the Company's Current
Report on Form 8-K dated October 1, 1996, filed with the Commission
on October 1, 1996 (File No. 0-11532) (the "October 1, 1996 Current
Report"), is hereby incorporated herein by reference.
10.15 Promissory Note dated September 30, 1996 in favor of Jonathan Ungar
in the principal amount of $1,768,550, previously filed as Exhibit
2.2 to the October 1, 1996 Current Report, is hereby incorporated
herein by reference.
10.16 Promissory Note dated September 30, 1996 in favor of Alan Henry
Woods in the principal amount of $1,731,450, previously filed as
Exhibit 2.3 to the October 1, 1996 Current Report, is hereby
incorporated herein by reference.
10.17 Promissory Note dated September 15, 1997 in favor of Jonathan Ungar
in the principal amount of $1,000,000, previously filed as Exhibit
10.19 to the Fiscal 1998 Annual Report, is hereby incorporated by
reference.
10.18 Promissory Note dated September 15, 1997 in favor of Alan Henry
</TABLE>
70
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<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<S> <C>
Woods in the principal amount of $1,000,000, previously filed as
Exhibit 10.20 to the Fiscal 1998 Annual Report, is hereby
incorporated by reference.
10.19 Promissory Note dated September 15, 1998 in favor of Jonathan Ungar
in the principal amount of $1,000,000, previously filed as Exhibit
10.21 to the Fiscal 1998 Annual Report, is hereby incorporated by
reference.
10.20 Promissory Note dated September 15, 1998 in favor of Alan Henry
Woods in the principal amount of $1,000,000, previously filed as
Exhibit 10.22 to the Fiscal 1998 Annual Report, is hereby
incorporated by reference.
10.21 Promissory Note dated September 15, 1999 in favor of Jonathan Ungar
in the principal amount of $1,000,000.
10.22 Promissory Note dated September 15, 1999 in favor of Alan Henry
Woods in the principal amount of $1,000,000.
10.23 Settlement Agreement dated January 3, 1997 by and between the
Company and the National Indian Gaming Commission, previously filed
as Exhibit 99 to the Company's Current Report on Form 8-K dated
January 7, 1997, filed with the Commission on January 7, 1997 (File
No. 0.11532), is hereby incorporated herein by reference.
10.24 Lease Agreement dated September 27, 1997, by and between the Company
and Rancho Bernardo Associates, previously filed as Exhibit 10.1 to
the Company's Quarterly Report on Form 10-QSB for the Quarterly
Period Ended September 30, 1997, filed with the Commission on
November 13, 1997 (File No. O-11532), is hereby incorporated herein
by reference.
10.25 Software Support and Supply Agreement dated as of March 13, 1998, by
and between Worldwide Media Holdings N.V. and Intertainet Overseas
Licensing Limited, previously filed as Exhibit 10.5 to the March
1998 Quarterly Report, is hereby incorporated herein by reference.
10.26 Appointment of Marketing Representative dated as of March 13, 1998,
by and between Worldwide Media Holdings N.V., Intertainet Overseas
Licensing Limited, Cyberluck Curacao N.V. and Berdenac Holdings
N.V., previously filed as Exhibit 10.6 to the March 1998 Quarterly
Report, is hereby incorporated herein by reference.
10.27 Consulting and Marketing Agreement dated as of March 12, 1998 by and
between the Company and Worldwide Media Holdings, N.V.
10.28 Loan and Security Agreement by and among the Company, L. Donald
Speer II and Kelly Jacobs Speer, dated April 22, 1999.
10.29 Letter Agreement amending the Loan and Security Agreement dated
April 30, 1999, by and among the Company, L. Donald Speer II and
Kelly Jacobs Speer.
10.30 Consulting Agreement dated February 13, 1998, by and between the
Company and Torrey Pines Consultants, Inc.
10.31 Inland Entertainment Corporation Confidentiality and Non-Disclosure
Agreement dated February 13, 1998, by and between the Company and
Arthur R. Pfizenmayer.
10.32 First Amendment to Consulting Agreement dated May 30, 1998, by and
between the Company and Torrey Pines Consultants, Inc.
10.33 Addendum to Consulting Agreement dated February 24, 1999, by and
between the Company and Torrey Pines Consultants, Inc.
10.34 Loan and Security Agreement dated December 19, 1997, by and between
the Company and Christopher Wm. Voisin.
10.35 Promissory Note dated December 19, 1997, in favor of the Company in
the principal amount of $49,462.
10.36 Amendment "A" to Loan and Security Agreement dated May 1, 1999, by
and between the Company and Christopher Wm. Voisin.
10.37 Negotiable Secured Promissory Note dated August 5, 1999, in favor of
the Company in the principal amount of $49,462.
21 Subsidiaries of Registrant.
23 Consent of Grant Thornton LLP.
27 Financial Data Schedule.
</TABLE>
71
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(b) REPORTS ON FORM 8-K
No reports on Form 8-K were filed with the Commission during the fourth
quarter of the fiscal year covered by this Form 10-KSB.
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SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the
registrant caused this amendment to its report on Form 10-KSB to be signed on
its behalf by the undersigned, thereunto duly authorized.
INLAND ENTERTAINMENT CORPORATION,
a Utah corporation
Dated: October 27, 1999 By: /s/ ANDREW B. LAUB
------------------------------------------
Andrew B. Laub
Executive Vice President and Chief
Financial Officer
73
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<S> <C>
2.1 Agreement and Plan of Reorganization by and among the Company,
Cyberworks, Inc., Inland Acquisition Corporation and Richard T.
Harrison dated August 25, 1998, previously filed as Exhibit 2.01 to
the Company's Current Report on Form 8-K dated September 10, 1998,
filed with the Commission on September 11, 1998 (File No. 0-11532)
(the "September 11, 1998 Current Report"), is hereby incorporated
herein by reference.
2.2 Agreement of Merger by and between Cyberworks, Inc. and Inland
Acquisition Corporation dated August 27, 1998, previously filed as
Exhibit 2.02 to the September 11, 1998 Current Report, is hereby
incorporated herein by reference.
2.3 Articles of Merger by and between Cyberworks, Inc. and Inland
Acquisition Corporation dated August 27, 1998, previously filed as
Exhibit 2.03 to the September 11, 1998 Current Report, is hereby
incorporated herein by reference.
2.4 Asset Purchase Agreement dated as of July 16, 1999 by and among the
Company, Typhoon Capital Consultants, LLC, Sanjay Sabnani and
Manisha Sabnani.
3.1 Amended and Restated Articles of Incorporation of the Company,
previously filed as Exhibit 3.1 to the Company's Annual Report on
Form 10-KSB for the Fiscal Year Ended June 30, 1995, filed with the
Commission on October 12, 1995 (File No. 0-11532) (the "Fiscal 1995
Annual Report"), is hereby incorporated herein by reference.
3.2 Articles of Amendment of the Company, previously filed as Exhibit 3
to the Company's Quarterly Report on Form 10-QSB for the Quarterly
Period Ended December 31, 1997, filed with the Commission on
February 13, 1998 (File No. O-1152), is hereby incorporated herein
by reference.
3.3 Amended and Restated By-laws of the Company (formerly known as Twin
Creek Exploration Co., Inc.), previously filed as Exhibit 3.1 to the
Company's Quarterly Report on Form 10-QSB for the Quarterly Period
Ended March 31, 1996, filed with the Commission on May 17, 1996
(File No. 0-11532) (the "March 1996 Quarterly Report"), is hereby
incorporated herein by reference.
</TABLE>
75
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<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<S> <C>
MATERIAL CONTRACTS RELATING TO MANAGEMENT COMPENSATION PLANS OR
ARRANGEMENTS
10.1 1994 Stock Option Plan of Inland Casino Corporation, a Delaware
corporation, previously filed as Exhibit 10.2 to the Fiscal 1995
Annual Report, is hereby incorporated herein by reference.
10.2 The Company's 1995 Stock Option Plan, as amended, previously filed
as Appendix A to the Company's Proxy Statement dated October 27,
1998 filed with the Commission on October 28, 1997 (File No.
0-11532), is hereby incorporated herein by reference.
10.3 The Company's 1996 Non-employee Directors Stock Option Plan,
previously filed as Exhibit 10.3 to the Company's Annual Report on
Form 10-KSB for the Fiscal Year Ended June 30, 1998, filed with the
Commission on September 28, 1998 (File No. 0-11532) (the "Fiscal
1998 Annual Report"), is hereby incorporated by reference.
10.4 Settlement and Release Agreement dated as of February 10, 1998, by
and between the Company and Duane Eberlein, previously filed as
Exhibit 10.1 to the Company's Quarterly Report on Form 10-QSB for
the Quarterly Period Ended March 31, 1998, filed with the Commission
on May 15, 1998 (File No. 0-11532) (the "March 1998 Quarterly
Report"), is hereby incorporated herein by reference.
10.5 Settlement and Release Agreement dated as of March 6, 1998, by and
between the Company and Arthur Pfizenmayer, previously filed as
Exhibit 10.2 to the March 1998 Quarterly Report, is hereby
incorporated herein by reference.
10.6 Employment Agreement by and among the Company, Cyberworks, Inc. and
Richard T. Harrison dated August 27, 1998, previously filed as
Exhibit 99.01 to the September 11, 1998 Current Report, is hereby
incorporated herein by reference.
10.7 Noncompetition Agreement by and among the Company, Cyberworks, Inc.
and Richard T. Harrison dated August 27, 1998, previously filed as
Exhibit 99.02 to the September 11, 1998 Current Report, is hereby
incorporated herein by reference.
10.8 Employment Agreement by and between the Company and Sanjay Sabnani,
dated July 16, 1999.
OTHER MATERIAL CONTRACTS
10.9 Amended and Restated Consulting Agreement by and between the Company
and the Barona Group of Capitan Grande Band of Mission Indians (the
"Barona Tribe"), dated as of April 29, 1996, previously filed as
Exhibit 10.7 to the Company's Annual Report
</TABLE>
76
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on form 10-KSB for the Fiscal Year Ended June 30, 1996, filed with
the Commission on October 5, 1996 (File No. 0-11532) (the "Fiscal
1996 Annual Report"), is hereby incorporated herein by reference.
10.10 Modification No. 1 to Amended and Restated Consulting Agreement
dated as of February 17, 1998, by and between the Company and the
Barona Group of Capitan Grande Band of Mission Indians, previously
filed as Exhibit 10.4 to the March 1998 Quarterly Report, is hereby
incorporated herein by reference.
10.11 Amended and Restated Gaming Machine Location Agreement by and
between SSK Game Enterprises and the Company, dated December 1,
1995, previously filed as Exhibit 10.16 to the Fiscal 1996 Annual
Report, is hereby incorporated herein by reference.
10.12 Amended and Restated Gaming Machine Location Agreement between Zino,
Inc. and the Company, dated December 1, 1995, previously filed as
Exhibit 10.17 to the Fiscal 1996 Annual Report, is hereby
incorporated herein by reference.
10.13 Amended and Restated Gaming Machine Location Agreement between
American Heritage Amusement Corporation and the Company, dated
December 1, 1995, previously filed as Exhibit 10.18 to the Fiscal
1996 Annual Report, is hereby incorporated herein by reference.
10.14 Stock Purchase and Settlement and Release Agreement by and among the
Company, Jonathan Ungar and Alan Henry Woods, dated September 27,
1996, previously filed as Exhibit 2.1 to the Company's Current
Report on Form 8-K dated October 1, 1996, filed with the Commission
on October 1, 1996 (File No. 0-11532) (the "October 1, 1996 Current
Report"), is hereby incorporated herein by reference.
10.15 Promissory Note dated September 30, 1996 in favor of Jonathan Ungar
in the principal amount of $1,768,550, previously filed as Exhibit
2.2 to the October 1, 1996 Current Report, is hereby incorporated
herein by reference.
10.16 Promissory Note dated September 30, 1996 in favor of Alan Henry
Woods in the principal amount of $1,731,450, previously filed as
Exhibit 2.3 to the October 1, 1996 Current Report, is hereby
incorporated herein by reference.
10.17 Promissory Note dated September 15, 1997 in favor of Jonathan Ungar
in the principal amount of $1,000,000, previously filed as Exhibit
10.19 to the Fiscal 1998 Annual Report, is hereby incorporated by
reference.
10.18 Promissory Note dated September 15, 1997 in favor of Alan Henry
Woods in the principal amount of $1,000,000, previously filed as
Exhibit 10.20 to the Fiscal 1998 Annual Report, is hereby
incorporated by reference.
77
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<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<S> <C>
10.19 Promissory Note dated September 15, 1998 in favor of Jonathan Ungar
in the principal amount of $1,000,000, previously filed as Exhibit
10.21 to the Fiscal 1998 Annual Report, is hereby incorporated by
reference.
10.20 Promissory Note dated September 15, 1998 in favor of Alan Henry
Woods in the principal amount of $1,000,000, previously filed as
Exhibit 10.22 to the Fiscal 1998 Annual Report, is hereby
incorporated by reference.
10.21 Promissory Note dated September 15, 1999 in favor of Jonathan Ungar
in the principal amount of $1,000,000.
10.22 Promissory Note dated September 15, 1999 in favor of Alan Henry
Woods in the principal amount of $1,000,000.
10.23 Settlement Agreement dated January 3, 1997 by and between the
Company and the National Indian Gaming Commission, previously filed
as Exhibit 99 to the Company's Current Report on Form 8-K dated
January 7, 1997, filed with the Commission on January 7, 1997 (File
No. 0.11532), is hereby incorporated herein by reference.
10.24 Lease Agreement dated September 27, 1997, by and between the Company
and Rancho Bernardo Associates, previously filed as Exhibit 10.1 to
the Company's Quarterly Report on Form 10-QSB for the Quarterly
Period Ended September 30, 1997, filed with the Commission on
November 13, 1997 (File No. O-11532), is hereby incorporated herein
by reference.
10.25 Software Support and Supply Agreement dated as of March 13, 1998, by
and between Worldwide Media Holdings N.V. and Intertainet Overseas
Licensing Limited, previously filed as Exhibit 10.5 to the March
1998 Quarterly Report, is hereby incorporated herein by reference.
10.26 Appointment of Marketing Representative dated as of March 13, 1998,
by and between Worldwide Media Holdings N.V., Intertainet Overseas
Licensing Limited, Cyberluck Curacao N.V. and Berdenac Holdings
N.V., previously filed as Exhibit 10.6 to the March 1998 Quarterly
Report, is hereby incorporated herein by reference.
10.27 Consulting and Marketing Agreement dated as of March 12, 1998 by and
between the Company and Worldwide Media Holdings, N.V.
10.28 Loan and Security Agreement by and among the Company, L. Donald
Speer II and Kelly Jacobs Speer, dated April 22, 1999.
10.29 Letter Agreement amending the Loan and Security Agreement dated
April 30, 1999, by and among the Company, L. Donald Speer II and
Kelly Jacobs Speer.
10.30 Consulting Agreement dated February 13, 1998, by and between the
Company and Torrey Pines Consultants, Inc.
10.31 Inland Entertainment Corporation Confidentiality and Non-Disclosure
Agreement dated February 13, 1998, by and between the Company and Arthur R.
Pfizenmayer.
10.32 First Amendment to Consulting Agreement dated May 30, 1998, by and
between the Company and Torrey Pines Consultants, Inc.
10.33 Addendum to Consulting Agreement dated February 24, 1999, by and
between the Company and Torrey Pines Consultants, Inc.
10.34 Loan and Security Agreement dated December 19, 1997, by and between
the Company and Christopher Wm. Voisin.
10.35 Promissory Note dated December 19, 1997, in favor of the Company in
the principal amount of $49,462.
10.36 Amendment "A" to Loan and Security Agreement dated May 1, 1999, by
and between the Company and Christopher Wm. Voisin.
10.37 Negotiable Secured Promissory Note dated August 5, 1999, in favor of
the Company in the principal amount of $49,462.
21 Subsidiaries of Registrant.
23 Consent of Grant Thornton LLP.
27 Financial Data Schedule.
</TABLE>
78
<PAGE> 1
EXHIBIT 10.28
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT (Agreement) is dated this 22nd day of April,
1999, by and between Inland Entertainment Corporation, a Utah corporation, whose
principal place of business is located at 16868 Via Del Campo Court, Suite 200,
San Diego, CA 91217, as Lender and Secured Party (Lender), and L. Donald Speer,
II, and Kelly Jacobs Speer, Husband and Wife (Debtors).
Recitals
Lender hereby agrees to provide Debtors with a bridge loan in the
amount of One-Hundred & Ten-Thousand ($110,000.00) Dollars to be used for
purpose of purchasing a residence, said loan which the Debtors has agreed to
secure by the equity interest in Debtor's condominium located at 3209 Via Marin,
La Jolla, CA, the proceeds which will be used to satisfy the obligation
hereunder.
That the condominium is currently subject to sale and is in escrow.
That Lender and Debtors enter into this written agreement to
memorialize the terms and conditions of the loan agreement and to more fully set
forth the terms and conditions thereof.
That for good and valuable consideration, the same acknowledged hereby,
the parties agree as follows:
1. Loan Amount: ONE HUNDRED & TEN-THOUSAND DOLLARS ($110,000.00).
2. Obligation to Pay. Debtors agrees to repay the loan amount in accordance with
the terms and conditions of this Agreement or as may be modified from time to
time in writing by the parties hereto.
3. Collateral. The Debtors enter into this agreement for the purpose of creating
a security interest in favor of Lender as secured party, in the real property
located at 3209 Via Marin, La Jolla, CA, and in all additions and accessions
thereto, substitutions thereof and all proceeds of their sale or disposition
(all hereinafter referred to collectively as "collateral").
4. Creation of Security Interest. In order to secure payment of the debt
evidenced hereby including renewals and extensions thereof Debtors hereby grants
to the Lender a security interest in the collateral described herein.
5. Escrow Instruction. Concurrently with the execution and delivery of this
agreement, Debtors will forward a copy of this Agreement together with escrow
instructions to South Coast Title, Attn: Ms. Tiffany Reid directing said title
company and escrow agent to encumber the proceeds of the sale of the collateral
in favor of Lender and to pay the same over unto Lender
1
<PAGE> 2
upon closing of escrow and to prepare any and all documents necessary in
furtherance thereof.
6. Care, Use and Disposition of Collateral. Debtors shall use reasonable care in
maintaining the collateral and shall be entitled to the sole and exclusive
possession, use, and enjoyment of the collateral including the right to lease,
rent, or sell said real property. In all other cases, the Debtor shall not
encumber, dispose, hypothecate, collateralize, or transfer the collateral or any
part or interest therein except in accordance with the terms and provisions of
this Agreement.
7. Default and Remedies. In the event that the Debtors breaches this Agreement
Lender may, on ten days notice to the Debtors, foreclose on said collateral,
sell said real property and take such further action as will be sufficient to
satisfy the loan created hereby including any expenses related to the collection
thereof. At Lender's option, Lender may elect to extinguish this loan obligation
by taking possession of said collateral and in such event Debtors shall execute
any and all documents of title necessary to transfer complete ownership of said
collateral to Lender, said transfer subject only to any or all encumbrances of
record. Should Lender elect to foreclose and sell the collateral, the proceeds
of any such sale shall be retained by the Lender and applied in the following
order: principal, interest, expenses; and shall pay any balance of the proceeds
to the Debtors. In the event that the proceeds of sale are insufficient to pay
the Lender in full, the Debtors shall remain liable to the Lender for any
deficiency. In addition to the remedies set forth above, upon default, Lender
shall have any and all rights and remedies at law and in equity as may be
recognized at the time of default and which are not inconsistent with the terms
hereof.
8. Title and Warranties. Debtors warrants that they have good, marketable and
clear title to the collateral, subject to any and all encumbrances and liens of
record, lease and/or rental agreements, and subject to any and all community or
quasi-community property interest in said property.
9. Merger. The terms and conditions of this agreement shall merge with and
become part of any and all subsequent and collateral agreements entered into by
and between the parties as if more fully set forth herein.
10. Governing Law. The terms and conditions of this agreement shall be governed,
construed, and enforced in accordance with the laws of the State of California,
regardless of the laws that may be applicable under the principles of conflicts
of law.
11. Recitals. The recitals to this agreement shall constitute part of this
agreement.
12. Binding Effect. The parties hereby agree that the terms and conditions of
this agreement shall inure to the benefit of and shall be binding upon the
parties hereto, their successors, heirs, transferees, and assigns.
13. Entire Agreement. This agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter described.
All prior or contemporaneous
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<PAGE> 3
agreements, understandings, representations, warranties, and statements, oral or
written, relating to the subject matter are superseded and without effect. No
modification to this agreement shall be binding unless in writing and executed
by the parties or their lawful representatives.
14. Counterparts. This agreement may be signed in multiple counterparts, each of
which shall have the same effect as originals, but all such counterparts
collectively shall constitute the same instrument.
This agreement shall become effective and binding upon the parties
hereto on the date and year first above written.
Lender: Debtor:
Inland Entertainment Corporation L. Donald Speer
a Utah corporation Kelly Jacobs Speer
By: /s/ A B LAUB By: /s/ L. DONALD SPEER
--------------------------- ------------------------
Title: Chief Financial Officer By: /s/ KELLY SPEER
------------------------ ------------------------
3
<PAGE> 1
EXHIBIT 10.29
L. DONALD SPEER, II AND KELLY JACOBS SPEER
P.O. BOX 5005-131
RANCHO SANTA FE, CALIFORNIA 92067
April 30, 1999
Inland Entertainment Corporation
16868 Via Del Campo Court
Suite 200
San Diego, California 92127
Attn: Andrew B. Laub, Executive Vice President,
Chief Financial Officer and Treasurer
Re: LOAN AND SECURITY AGREEMENT
Ladies and Gentlemen:
Reference is made to that certain Loan and Security Agreement (the
"Agreement"), dated April 22, 1999, by and among Inland Entertainment
Corporation, a Utah corporation, L. Donald Speer, II, and Kelly Jacobs Speer.
In order to clarify certain terms of the Agreement, the undersigned
wish to amend the Agreement as follows:
1. Section 2 of the Agreement is hereby amended and restated in its
entirety to read as follows:
"1. Obligation to Pay. The Debtors agree to repay the loan's
principal amount on or before July 22, 1999 (the "Due Date"), in
accordance with the terms and conditions of this Agreement or as may be
modified from time to time in writing by the parties hereto, by wire
transfer of immediately available funds to an account specified by
Lender. The loan shall bear simple interest at the rate of seven (7)
percent per annum, to accrue from the date hereof until the loan is
paid in full, and payable within ninety (90) days from the Due Date, in
cash or by a personal check."
2. Section 3 of the Agreement is hereby amended by adding the following
sentence at the end:
"The Debtors represent and warrant to Lender that the Debtors' equity
in the collateral is equal to or greater than the full amount of
principal and interest due to the Company pursuant to the Agreement."
<PAGE> 2
Capitalized terms used but not defined herein shall have the respective
meanings given to such terms in the Agreement.
Very truly yours,
L. DONALD SPEER, II
/s/ L. DONALD SPEER, II
-----------------------------
L. Donald Speer, II
KELLY JACOBS SPEER
/s/ KELLY JACOBS SPEER
-----------------------------
Kelly Jacobs Speer
cc: Christopher Wm. Voisin,
Corporate Secretary
Inland Entertainment Corporation
Accepted and Agreed to this 4th day of May, 1999.
INLAND ENTERTAINMENT CORPORATION
By: /s/ ANDREW B. LAUB
---------------------------------
Andrew B. Laub
Executive Vice President,
Chief Financial Officer
and Treasurer
2
<PAGE> 1
EXHIBIT 10.30
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement"), is made and entered into
as of February 13, 1998, by and among Inland Entertainment Corporation, a Utah
corporation (the "Company"), and Torrey Pines Consultants, Inc., a California
corporation (the "Consultant").
1. Consulting Services.
1.1 Scope and Term. During the period from the February 13, 1998,
through February 13, 1999, (the "Consultation Period"), the Consultant agrees to
provide consulting services from time to time to the Company. During the
Consultation Period, the Consultant shall be engaged by the Company in a
consulting capacity to render such advisory services and projects as the
Consultant may be assigned from time to time by the Chairman of the Board of the
Company for matters specifically relating to the Barona Casino and the Barona
Band of Mission Indians. The Consultant shall submit a written report regarding
the project assignments and/or services rendered within 15 days of the end of
each month of the Consultation Period (the "Due Date"). If Consultant fails to
submit this written report to the Chairman of the Board within 30 days of the
Due Date, payments to the Consultant under Section 2 shall be suspended. It is
further agreed that either party may terminate this agreement upon 30 days prior
written notice. In the event that Company terminates this agreement prior to end
of the Consultation Period, the Consultant shall receive all unpaid compensation
still due as set forth in Section 2 and shall also receive vesting in the Stock
options as set forth in Section 2.1 as if this agreement was not terminated by
Company.
1.2 Devotion of Time and Effort. The time that the Consultant shall
be obligated to devote to such services shall not exceed reasonable limits, and
to the extent reasonably practicable, the Company on the one hand, and the
Consultant, on the other hand, shall schedule the times at which its services
shall be required to suit their mutual convenience. The Consultant's inability
to be reasonably available to discharge its duties under Section 1.1 due to the
physical or mental disability of its sole shareholder, its other business or
travel commitments, or other causes beyond its reasonable control, including
without limitation, any force majeure, shall not in any instance or instances be
deemed to be a breach of Section 1.1
1.3 Continued Availability and Cooperation. During the Consultation
Period and for the balance of the time referred to in the last sentence of this
Section 1.3, the Consultant and its sole shareholder shall cooperate fully with
the Company and the Company's counsel in connection with any present or future,
actual or threatened, litigation, or administrative proceeding involving its
officers, directors, agents, employees, stockholders, successors or assigns and
relating to events or conduct occurring (or claimed to have occurred) during the
period of the Consultant's service with the Company. This cooperation shall
include but not be limited to (a) making himself reasonably available for
interviews and discussions with the Company and the
<PAGE> 2
Company's counsel as well as for depositions and trial testimony, (b) if
depositions or trial testimony are to occur, making himself reasonably available
and cooperating in the preparation for them and to the extent that the Company
or the Company's counsel reasonably request, (c) refraining from impeding in any
way prosecution or defense of such litigation or administrative proceeding, and
(d) cooperating fully in the development and presentation of the prosecution or
defense of such litigation or administrative proceeding. The Consultant shall be
reimbursed by the Company for his reasonable travel, telephone and similar
expenses incurred in connection with such cooperation, which the Company or the
Company's counsel shall reasonably endeavor to schedule at times not conflicting
with the reasonable requirements of any future employer of the Consultant or
with the requirements or any third party with whom the Consultant has a business
relationship that provides remuneration for the Consultant, and not conflicting
with the Consultant's other business or travel commitments. The Consultant shall
not unreasonably withhold his availability for such cooperation.
2. Compensation During Consultation Period. During the Consultation
Period, so long as its sole shareholder is physically and mentally able, the
Consultant shall render consultative services to the Company as provided in
Section 1 of this Agreement. The Company shall pay the Consultant as
compensation for its services for the one (1) year period commencing on February
13, 1998, and ending February 13, 1999. The amount is $12,500 for the first six
(6) months and $8,000 for the second six (6) months. A retainer in the amount of
$5,500 and the payment for February 13, 1998, to March 31,1998, will be paid
upon Consultant's execution of this Consulting Agreement. All subsequent
payments will be paid on the 10th day following the end of each month of the
Consultation period. Such payments shall not be made in the event of the death
of the Consultant's sole shareholder or his disability during the Consultation
Period. Furthermore, compensation shall cease upon the termination of this
Agreement, except as provided above. The Consultant shall not be entitled to any
payments other than as set forth in this Section 2.
2.1 Stock Options. As additional consideration, the Company
acknowledges that the Consultant's sole shareholder, Arthur R. Pfizenmayer (the
"Executive"), prior to his voluntary resignation (Resignation date) of
employment with the Company, had vested stock options( the "options") which
enabled the then executive and employee, to purchase 210,000 shares of common
stock, par value $.001 per share, of the Company ("Common Stock"). Prior to the
resignation date as set forth in the Settlement and Release Agreement, the
executive had options that were not vested which enable the same to purchase
290,000 shares of common stock, par value $.001 per share, of the Company stock.
Accordingly, and in consideration hereof, each of the executive's "Stock Option
Agreements" under the Company's 1995 Stock Option Plan shall be amended to
extend all provisions of the Stock Option Agreements through the period of time
the Consultant is engaged as a consultant for the company under this agreement.
Upon termination of this agreement the options herein shall terminate.
3. Confidential Information. The Consultant understands and agrees that
in the course of providing services to the Company, the consultant will acquire
proprietary and confidential information related to the Company's trade secrets,
intellectual property
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<PAGE> 3
rights, its future plans and its methods of doing business. The Consultant
agrees and understands that it would be extremely damaging to the Company if the
Consultant disclosed such information to a competitor or made it available to
any other person or company. Consultant further agrees to keep and hold all such
confidential information in trust and confidence, to observe the strictest
secrecy with respect to all information presented by the Company or obtained by
Consultant pursuant to this agreement, and to take all reasonable precautions
and measures to protect the secrecy of and avoid the disclosure or use of the
Confidential Information by any unauthorized persons or in any unauthorized
manner and to prevent it form falling into the public domain or the possession
of persons other than those persons authorized by the Company to have any such
information. Accordingly, as a material condition of this agreement, Consultant
and Consultant's sole shareholder agree to enter into and execute a
Confidentiality and Non-Disclosure Agreement, the same which is attached hereto
and incorporated by reference herein as Exhibit "A".
Except to the extent that this Agreement becomes publicly available
because of a legal requirement that it be filed with a governmental
instrumentality or agency, all provisions of this Agreement and the
circumstances giving rise hereto are and shall remain confidential and shall not
be disclosed by either party to any person not a party hereto except as
necessary to carry out or enforce the provisions of this Agreement or as may be
required by law. Notwithstanding the foregoing, Consultant may disclose the
terms, amounts and fact of this Agreement to Consultant's spouse, attorney,
financial or tax advisor, or taxing authorities. Before Consultant discloses to
his spouse, attorney, financial or tax advisor or taxing authorities anything
about this Agreement, he will inform them of this confidentiality clause and
they must agree (or in the case of any taxing authority, use its best efforts)
to comply with it. Upon request by the Consultant, the Company will make
reasonable efforts to confirm the compensation terms described in Section 2 to
lending institutions which are considering extensions of credit to Consultant.
Each of the parties has read this Agreement, has had the opportunity to consult
with counsel, fully understand this Agreement's terms and enter into this
Agreement freely and voluntarily and intending to be bound hereby.
4. Covenant Not to Compete. During the Consultation Period, the
Consultant shall not, without the written consent of the Chairman of the Board
of the Company and the President of the Company, participate in any business
enterprise providing consulting services to Viejas Casino and Turf Club and or
Sycuan Casino, located in San Diego County, State of California, if such
enterprise engages in direct competition with the Company as the business of the
Company currently is being conducted, with Barona Casino and the Barona Band of
Mission Indians This covenant not to compete shall not preclude the ownership or
acquisition of securities in any enterprise or the exercise of rights
appurtenant thereto, provided that such securities are listed on a national
securities exchange or are regularly quoted in an established over-the-counter
market and provided further that the securities so owned or acquired comprise
less than 5% percent of the total outstanding voting securities of such
enterprise and do not give the Consultant any meaningful voice in the management
or operation of such enterprise. In addition, this covenant not to compete shall
not preclude the Consultant from (a) serving as an officer or director of the
Consultant's personal investment holding company, (b) service as a director on
the board of a corporation which is not a competitor to the Company or (c)
engagement as a bona fide part-time consultant to a person or entity which is
not a competitor to the Company ("Permissible Employment").
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<PAGE> 4
5. Settlement and Release. Notwithstanding anything to the contrary
here, the company's obligation to make any payments under Section 2 herein shall
be dependent on the Consultant executing the Settlement and Release Agreement
and all periods of revocation having lapsed thereunder.
6. Successors and Binding Agreement. (a) This Agreement shall be
binding upon and inure to the benefit of the Consultant and any successor of or
to the Company, including, without limitation, any persons acquiring directly or
indirectly all or substantially all of the business and/or assets of the Company
whether by purchase, merger, consolidation, reorganization or otherwise (and
successor shall thereafter be deemed included in the definition of the Company
for purposes of this Agreement), but shall not otherwise be assignable or
delegable by the Company. Unless the Consultant otherwise agrees the Company's
obligations hereunder shall not be terminated by any such acquisition of all or
substantially all of the business and/or assets of the Company.
(b) This Agreement shall inure to the benefit of and be enforceable
by the Consultant's and its sole shareholder's personal or legal
representatives, executors, administrators, successors, heirs, distributees
and/or legatees.
(c) This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other, assign, transfer or delegate
this Agreement or any rights or obligations hereunder except as expressly
provided in subparagraph (a) of this Paragraph.
(d) This Agreement is intended to be for the exclusive benefit of
the parties hereto, and no third party shall have any rights hereunder.
7. Publicity. The Consultant shall obtain prior approval from the
Company of the content of any public announcements made by the Consultant with
respect to this Agreement or the transactions contemplated hereby, which
approval shall not be unreasonably withheld or delayed (either as to time or
substance); provided, however, that nothing herein shall prevent the Consultant
from making such announcement to any person or persons (including without
limitation potential future employers, creditors, and others) as the Consultant
may consider necessary in order to satisfy (upon the written advice of counsel)
the Consultant's legal, contractual or other obligations.
8. Injunctive Relief. The Consultant recognizes that any breach or
threatened breach of Sections 3 or 4 of this Agreement is likely to result in
immediate and irreparable harm to the Company for which money damages are likely
to be inadequate. Accordingly, the Consultant consents to injunction and other
appropriate equitable relief, subject to the notice requirements of the
applicable rules of civil procedure, upon the institution of proceedings
therefore by the Company in order to protect the Company's rights under any of
such Sections. Such relief shall be in addition to any other relief to
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<PAGE> 5
which the company be entitled at law or in equity. Nothing herein shall be
construed as prohibiting the Company from pursuing any other remedies for such
breach or threatened breach.
9. Authority. The individual(s) executing this Agreement on behalf of
the Company represent and warrant to the Consultant that the performance of this
Agreement and consummation of the transactions contemplated hereby have been
duly authorized by all requisite action and that each has the power and
authority to execute this Agreement.
10. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be given by hand delivery, telecopy,
overnight, courier service, or by United States certified or registered mail,
return receipt requested. Each such notice, request, demand or other
communication shall be effective (a) if delivered by hand or by overnight
courier service, when delivered at the address specified in this Section; (b) if
given by telecopy, when such telecopy is transmitted to the telecopy number
specified in this Section and confirmation is received; and (c) if given by
certified or registered mail, three (3) days after the mailing thereof.
Address for notices (unless and until written notice is given of any other
address):
If to the Company: INLAND ENTERTAINMENT CORPORATION
16868 Via del Campo Court, Suite 200
San Diego, CA 92127
Attn: Mary Jo Boring
Controller and Chief Accounting Officer
If to the Consultant: TORREY PINES CONSULTANTS, INC.
947 Olive Crest Drive
Encinitas, CA 92024
Attn: Arthur R. Pfizenmayer
President
11. Further Documents and Acts. Each of the parties hereto agrees to
cooperate in good faith with the other and to execute and deliver such further
instruments and perform such other acts as may be reasonably necessary or
appropriate to consummate and carry into effect the transactions contemplated
under this Agreement.
12. Financial Reporting. Any computation pertaining to the Company's
financial affairs to be made hereunder or referenced herein shall be based on
generally accepted accounting principles, applied on a consistent basis.
13. Attorneys' Fee. In any action, litigation or proceeding between the
parties arising out of or in relation to this Agreement, the prevailing party in
such action shall be awarded, in addition to any damages, injunctions or other
relief, and without regard to whether or not such matter be prosecuted to final
judgment, such party's costs and expenses, including reasonable attorneys' fees.
Such award shall include post-judgment attorneys' fees and costs and the same
shall not be deemed as merged into the final judgment.
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<PAGE> 6
14. California Law. This Agreement has been negotiated and executed in
the State of California. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California, including all matters of
construction, validity, performance and enforcement, without giving effect to
principles of conflict of laws. Any dispute, action, litigation or other
proceeding concerning this Agreement shall be instituted, maintained, heard and
decided in the State of California.
15. Amendments/Waiver. This Agreement may be amended, supplemented,
modified and/or rescinded only through an express written instrument signed by
all the parties or their respective successors and assigns. Any party may
specifically and expressly waive in writing any portion of this Agreement or any
breach hereof, but no such waiver shall constitute a further or continuing
waiver of any preceding or succeeding breach of the same or any other provision.
The consent by one party to any act for which such consent was required shall
not be deemed to imply consent or waiver of the necessity of obtaining such
consent for the same or similar acts in the future.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one of the same instruments.
17. Severability. In the event that any one or more of the provisions
contained herein (or parts thereof), or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected, it being intended that all of the rights and privileges shall be
enforceable to the fullest extent permitted by law. Notwithstanding anything to
the contrary, in the event Sections 3 or 4 or any part thereof was held to be
invalid, illegal or unenforceable, the obligation of the Company to make payment
to the Consultant under Section 2 herein would terminate and any amounts paid to
the Consultant shall be returned to the Company, with interest at 7% per annum,
such interest calculated from the time of such payment.
18. Entire Agreement. With the exception of the Settlement and Release
Agreement by and among the parties entered into concurrently herewith, this
Agreement contains the entire and complete understanding among the parties
concerning its subject matter and all representations, agreements, arrangements
and understandings between or among the parties, whether oral or written, have
been fully merged herein and are superseded hereby.
19. Remedies. All rights, remedies, undertakings, obligations, options,
covenants, conditions and agreements contained in this Agreement shall be
cumulative and no one of them shall be exclusive of any other.
20. Interpretation. The language in all parts of this Agreement shall
be in all cases construed simply according to its fair meaning and not strictly
for or against any party. Whenever the context requires, all words used in the
singular will be construed to have been used in the plural, and vice versa, and
each gender will include any other gender. The captions of the Sections of this
Agreement are for convenience only and shall not affect the construction or
interpretation of any of the provisions herein.
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21. Miscellaneous. Each provision of this Agreement to be performed by
a party hereto shall be deemed both a covenant and condition, and shall be a
material consideration for the other party's performance hereunder, and any
breach thereof by the party shall be deemed a material default hereunder. The
recitals and all other documents referenced in this Agreement are fully
incorporated into this Agreement by reference. Unless expressly set forth
otherwise, all references herein to a "day" shall be deemed to be a reference to
a calendar day. Unless expressly stated otherwise, cross-references herein shall
refer to provisions within this Agreement, and shall not be deemed to be
references to the overall transaction or to any other document. Time is of the
essence in the performance of this Agreement.
22. Withholding of Taxes; Tax Reporting. The Company may withhold from
any amounts payable under this Agreement all such Federal, state, city and other
taxes, and may file with appropriate governmental authorities all such
information returns or other reports with respect to the tax consequences
attendant to any amounts payable under this Agreement, as may, in its reasonable
judgment, be required by law.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement.
INLAND ENTERTAINMENT CORPORATION
Dated: 3/31/98 A Utah Corporation
By: /s/ L. Donald Speer, II
--------------------------
L. Donald Speer, II
Chairman of the Board
Dated: 3/6/98 TORREY PINES CONSULTANTS, INC.
A California Corporation
By: /s/ Arthur R. Pfizenmayer
--------------------------
Arthur R. Pfizenmayer
President
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<PAGE> 8
EXHIBIT "A"
INLAND ENTERTAINMENT CORPORATION
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT ("Agreement") is
dated this _____ day of _______________, 1998 by and between ARTHUR R.
PFITZENMAYER, and TORREY PINES CONSULTANTS, INC. A CALIFORNIA CORPORATION,
("CONSULTANT") and INLAND ENTERTAINMENT CORPORATION, A UTAH CORPORATION
("COMPANY").
WHEREAS the COMPANY is the owner of information relating to
intellectual property matters including but not limited to patents, trademarks,
copyrights, and similar trade secrets (hereinafter referred to collectively as
"CONFIDENTIAL INFORMATION" as more fully defined hereinbelow); and
WHEREAS the COMPANY is desirous of disclosing said information to
CONSULTANT for purposes of obtaining consulting and related services as more
fully set forth in that certain Consulting Agreement entered into on February
13, 1998; and
WHEREAS the COMPANY wishes to maintain in confidence said CONFIDENTIAL
INFORMATION; and
WHEREAS the parties recognize the necessity of maintaining the
strictest confidence with respect to said CONFIDENTIAL INFORMATION.
NOW THEREFORE, CONSULTANT and the COMPANY hereby agrees as follows:
1. CONSULTANT acknowledges that in connection with services to be provided by
the Consultant pursuant to the above-referenced Consulting Agreement between
COMPANY and CONSULTANT, COMPANY may disclose to CONSULTANT CONFIDENTIAL
INFORMATION belonging to COMPANY. As a material inducement for COMPANY
disclosing such information to CONSULTANT, and in accordance with the terms of
the Consulting Agreement, CONSULTANT has agreed to execute and deliver this
Agreement.
2. CONSULTANT agrees to hold and shall hold said CONFIDENTIAL INFORMATION in
trust and confidence, observe the strictest secrecy with respect to all
information presented by the COMPANY and CONSULTANT evaluation and use thereof,
and shall take all reasonable precautions and measures to protect the secrecy of
and avoid the disclosure or use of the CONFIDENTIAL INFORMATION by any
unauthorized persons or in any unauthorized manner and to prevent it from
falling into the public domain or the possession of persons other than those
persons authorized by the COMPANY to have any such information, which measures
shall at a minimum include the highest degree of care that CONSULTANT utilizes
to protect its own information of similar nature
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<PAGE> 9
but no less than a reasonable degree of care. CONSULTANT shall disclose such
information only to persons authorized to receive the same by the COMPANY.
CONSULTANT shall be responsible for any damage resulting from any breach of this
Agreement by CONSULTANT.
3. CONSULTANT shall neither make use of nor disclose to any third party during
the period of this Agreement and thereafter any such CONFIDENTIAL INFORMATION
accept in accordance with the terms and conditions of this Agreement. CONSULTANT
agrees to notify the Company immediately in writing of any misuse or
misappropriation of the CONFIDENTIAL INFORMATION which may come to Consultant=s
attention.
4. Nothing in this Agreement is intended to grant any right, interest, or
license to CONSULTANT under any patent, patent application, or any copyright or
trademark heretofore granted or filed in which the COMPANY has or subsequently
obtains any right, title, or interest; nor shall this Agreement grant CONSULTANT
any rights in the CONFIDENTIAL INFORMATION. CONSULTANT agrees that all rights to
the CONFIDENTIAL INFORMATION as defined hereinbelow shall be the sole and
exclusive property of the COMPANY.
5. This Agreement covers only information not previously known to CONSULTANT
from other sources or otherwise in the public domain. If CONSULTANT has prior
knowledge of any alleged CONFIDENTIAL INFORMATION disclosed by the COMPANY,
CONSULTANT will notify the COMPANY of such knowledge within thirty (30) days,
specifically identifying in writing the alleged CONFIDENTIAL INFORMATION
involved and the source of any such public information while maintaining
confidence with regard to information owned by others.
6. For purpose of this Agreement, "CONFIDENTIAL INFORMATION" is defined as any
corporate documentation, financial or accounting information, trade secrets,
business plans, customer lists, vendor lists, products, analysis, formulas,
written materials, test results, descriptions, drawings, materials, records
relating to research and development, inventions, pricing methods, marketing
techniques, methods of operation, computer programs, computer codes or entry
codes, proprietary computer data or programs, employee manuals, internal and
external memoranda, engineering document or data, and any and all similar
materials, information, and intellectual property including any and all patents,
copyrights, and trademarks as the same may be defined under Title 35, Title 17,
and Title 15 of the United States Code; whether said information is written,
oral, magnetic or other machine-readable format. CONFIDENTIAL INFORMATION does
not include information, knowledge or factual data which (i) is in the
possession of the CONSULTANT prior to the time of disclosure; or (ii) becomes
part of the public knowledge or literature other than by reason of any inaction
or action of CONSULTANT, (iii) was disclosed to CONSULTANT without restriction
by a third party having the right to disclose the same, or (iv) is approved for
release by the COMPANY.
7. Upon completion of the services performed by CONSULTANT, or upon request by
the COMPANY, CONSULTANT shall promptly return to the COMPANY any and all
original materials provided by the COMPANY and any and all documents, papers,
memorandum, drawings, specifications, data, film, tape, conceptual renderings,
disks, and any other tangible materials of any description containing
CONFIDENTIAL INFORMATION, including all copies and notes or other documents that
are in the CONSULTANT'S possession pertaining thereto.
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<PAGE> 10
8. CONSULTANT agrees not to use said CONFIDENTIAL INFORMATION for purposes of
consulting, advising, lobbying, or collaborating with any third party without
the prior express written consent of the COMPANY. If CONSULTANT determines that
it must consult third parties for purposes of performing services related to
this Agreement, all such third parties must enter into a separate agreement
directly with COMPANY prior to any disclosure of said CONFIDENTIAL INFORMATION
to said third parties by CONSULTANT.
9. CONSULTANT warrants that all of CONSULTANT'S employees who come into contact
with said CONFIDENTIAL INFORMATION have signed or will sign agreements
consistent with the terms and conditions of this Agreement before they are
allowed to have any contact whatsoever with said CONFIDENTIAL INFORMATION.
10. This Agreement and the covenants and obligations hereunder shall survive the
termination of any discussion and/or business relationship between the COMPANY
and CONSULTANT.
11. The terms, conditions, and covenants of this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, their successors, heirs,
and assigns. Failure to insist upon strict performance of any term or condition
of this Agreement shall not constitute a waiver of such term, or of any other
term of this Agreement.
12. This Agreement constitutes the entire agreement and understanding between
the parties with respect to the subject matter herein. All prior or
contemporaneous agreements, understanding, representations, warranties, and
statements, oral or written, relating to the subject matter are superseded and
without effect. No modification of or amendment to this Agreement shall be
binding unless in writing and executed by the parties hereto or their lawful
representatives.
13. This Agreement shall be governed, construed and enforced in accordance with
the laws of the State of California, regardless of the laws that otherwise may
be applicable under the principles of conflicts of law. The court and
authorities of the State of California and the Federal District Court for the
District of the County of San Diego, State of California, shall have sole
jurisdiction and venue over all controversies that may arise with respect to the
execution, interpretation, and compliance with the Agreement. In the event of
any litigation or dispute regarding or arising form this Agreement, and in
addition to any and all remedies at law and in equity, the prevailing party
shall be entitled to recover its reasonable attorney=s fees, expenses, and costs
of suit incurred therein or in the enforcement or collection of any judgment or
award rendered therein.
14. It is further understood, acknowledged, and agreed that monetary damages
alone would not be a sufficient remedy for any breach of this Agreement by
CONSULTANT. Accordingly, in addition to any and all remedies at law, the COMPANY
shall be entitled to any and all equitable
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remedies including but not limited to specific performance, injunctive and any
other equitable relief as a partial remedy for any such breach. CONSULTANT
expressly waives any requirement for the securing or posting of any bond in
connection with such remedy. Such relief shall not be deemed to be the exclusive
remedy for any breach of this Agreement, but shall be in addition to all other
remedies available at law or in equity to the COMPANY. The prevailing party in
such action shall be entitled to reimbursement of reasonable attorney's fees and
costs from the other party.
This Agreement shall become effective and binding upon CONSULTANT'S
execution hereof without the necessity of execution by the COMPANY.
DATED THIS _________ DAY OF ______________________, 1998.
INLAND ENTERTAINMENT CORPORATION TORREY PINES CONSULTANTS, INC.
A UTAH CORPORATION A CALIFORNIA CORPORATION
By: By:
------------------------------ --------------------------
Title: Title:
---------------------------- -----------------------
------------------------------
Arthur R. Pfizenmayer
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EXHIBIT 10.31
INLAND ENTERTAINMENT CORPORATION
CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
This CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT ("Agreement") is
dated this 13th day of February, 1998 by and between ARTHUR R.
PFITZENMAYER, and TORREY PINES CONSULTANTS, INC. A CALIFORNIA CORPORATION,
("CONSULTANT") and INLAND ENTERTAINMENT CORPORATION, A UTAH CORPORATION
("COMPANY").
WHEREAS the COMPANY is the owner of information relating to
intellectual property matters including but not limited to patents, trademarks,
copyrights, and similar trade secrets (hereinafter referred to collectively as
"CONFIDENTIAL INFORMATION" as more fully defined hereinbelow); and
WHEREAS the COMPANY is desirous of disclosing said information to
CONSULTANT for purposes of obtaining consulting and related services as more
fully set forth in that certain Consulting Agreement entered into on February
13, 1998; and
WHEREAS the COMPANY wishes to maintain in confidence said CONFIDENTIAL
INFORMATION; and
WHEREAS the parties recognize the necessity of maintaining the
strictest confidence with respect to said CONFIDENTIAL INFORMATION.
NOW THEREFORE, CONSULTANT and the COMPANY hereby agrees as follows:
1. CONSULTANT acknowledges that in connection with services to be provided by
the Consultant pursuant to the above-referenced Consulting Agreement between
COMPANY and CONSULTANT, COMPANY may disclose to CONSULTANT CONFIDENTIAL
INFORMATION belonging to COMPANY. As a material inducement for COMPANY
disclosing such information to CONSULTANT, and in accordance with the terms of
the Consulting Agreement, CONSULTANT has agreed to execute and deliver this
Agreement.
2. CONSULTANT agrees to hold and shall hold said CONFIDENTIAL INFORMATION in
trust and confidence, observe the strictest secrecy with respect to all
information presented by the COMPANY and CONSULTANT evaluation and use thereof,
and shall take all reasonable precautions and measures to protect the secrecy of
and avoid the disclosure or use of the CONFIDENTIAL INFORMATION by any
unauthorized persons or in any unauthorized manner and to prevent it from
falling into the public domain or the possession of persons other than those
persons authorized by the COMPANY to have any such information, which measures
shall at a minimum include the highest degree of care that CONSULTANT utilizes
to protect its own information of similar nature
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but no less than a reasonable degree of care. CONSULTANT shall disclose such
information only to persons authorized to receive the same by the COMPANY.
CONSULTANT shall be responsible for any damage resulting from any breach of this
Agreement by CONSULTANT.
3. CONSULTANT shall neither make use of nor disclose to any third party during
the period of this Agreement and thereafter any such CONFIDENTIAL INFORMATION
accept in accordance with the terms and conditions of this Agreement. CONSULTANT
agrees to notify the Company immediately in writing of any misuse or
misappropriation of the CONFIDENTIAL INFORMATION which may come to Consultant=s
attention.
4. Nothing in this Agreement is intended to grant any right, interest, or
license to CONSULTANT under any patent, patent application, or any copyright or
trademark heretofore granted or filed in which the COMPANY has or subsequently
obtains any right, title, or interest; nor shall this Agreement grant CONSULTANT
any rights in the CONFIDENTIAL INFORMATION. CONSULTANT agrees that all rights to
the CONFIDENTIAL INFORMATION as defined hereinbelow shall be the sole and
exclusive property of the COMPANY.
5. This Agreement covers only information not previously known to CONSULTANT
from other sources or otherwise in the public domain. If CONSULTANT has prior
knowledge of any alleged CONFIDENTIAL INFORMATION disclosed by the COMPANY,
CONSULTANT will notify the COMPANY of such knowledge within thirty (30) days,
specifically identifying in writing the alleged CONFIDENTIAL INFORMATION
involved and the source of any such public information while maintaining
confidence with regard to information owned by others.
6. For purpose of this Agreement, "CONFIDENTIAL INFORMATION" is defined as any
corporate documentation, financial or accounting information, trade secrets,
business plans, customer lists, vendor lists, products, analysis, formulas,
written materials, test results, descriptions, drawings, materials, records
relating to research and development, inventions, pricing methods, marketing
techniques, methods of operation, computer programs, computer codes or entry
codes, proprietary computer data or programs, employee manuals, internal and
external memoranda, engineering document or data, and any and all similar
materials, information, and intellectual property including any and all patents,
copyrights, and trademarks as the same may be defined under Title 35, Title 17,
and Title 15 of the United States Code; whether said information is written,
oral, magnetic or other machine-readable format. CONFIDENTIAL INFORMATION does
not include information, knowledge or factual data which (i) is in the
possession of the CONSULTANT prior to the time of disclosure; or (ii) becomes
part of the public knowledge or literature other than by reason of any inaction
or action of CONSULTANT, (iii) was disclosed to CONSULTANT without restriction
by a third party having the right to disclose the same, or (iv) is approved for
release by the COMPANY.
7. Upon completion of the services performed by CONSULTANT, or upon request by
the COMPANY, CONSULTANT shall promptly return to the COMPANY any and all
original materials provided by the COMPANY and any and all documents, papers,
memorandum, drawings, specifications, data, film, tape, conceptual renderings,
disks, and any other tangible materials of any description containing
CONFIDENTIAL INFORMATION, including all copies and notes or other documents that
are in the CONSULTANT'S possession pertaining thereto.
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8. CONSULTANT agrees not to use said CONFIDENTIAL INFORMATION for purposes of
consulting, advising, lobbying, or collaborating with any third party without
the prior express written consent of the COMPANY. If CONSULTANT determines that
it must consult third parties for purposes of performing services related to
this Agreement, all such third parties must enter into a separate agreement
directly with COMPANY prior to any disclosure of said CONFIDENTIAL INFORMATION
to said third parties by CONSULTANT.
9. CONSULTANT warrants that all of CONSULTANT'S employees who come into contact
with said CONFIDENTIAL INFORMATION have signed or will sign agreements
consistent with the terms and conditions of this Agreement before they are
allowed to have any contact whatsoever with said CONFIDENTIAL INFORMATION.
10. This Agreement and the covenants and obligations hereunder shall survive the
termination of any discussion and/or business relationship between the COMPANY
and CONSULTANT.
11. The terms, conditions, and covenants of this Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, their successors, heirs,
and assigns. Failure to insist upon strict performance of any term or condition
of this Agreement shall not constitute a waiver of such term, or of any other
term of this Agreement.
12. This Agreement constitutes the entire agreement and understanding between
the parties with respect to the subject matter herein. All prior or
contemporaneous agreements, understanding, representations, warranties, and
statements, oral or written, relating to the subject matter are superseded and
without effect. No modification of or amendment to this Agreement shall be
binding unless in writing and executed by the parties hereto or their lawful
representatives.
13. This Agreement shall be governed, construed and enforced in accordance with
the laws of the State of California, regardless of the laws that otherwise may
be applicable under the principles of conflicts of law. The court and
authorities of the State of California and the Federal District Court for the
District of the County of San Diego, State of California, shall have sole
jurisdiction and venue over all controversies that may arise with respect to the
execution, interpretation, and compliance with the Agreement. In the event of
any litigation or dispute regarding or arising form this Agreement, and in
addition to any and all remedies at law and in equity, the prevailing party
shall be entitled to recover its reasonable attorney=s fees, expenses, and costs
of suit incurred therein or in the enforcement or collection of any judgment or
award rendered therein.
14. It is further understood, acknowledged, and agreed that monetary damages
alone would not be a sufficient remedy for any breach of this Agreement by
CONSULTANT. Accordingly, in addition to any and all remedies at law, the COMPANY
shall be entitled to any and all equitable
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remedies including but not limited to specific performance, injunctive and any
other equitable relief as a partial remedy for any such breach. CONSULTANT
expressly waives any requirement for the securing or posting of any bond in
connection with such remedy. Such relief shall not be deemed to be the exclusive
remedy for any breach of this Agreement, but shall be in addition to all other
remedies available at law or in equity to the COMPANY. The prevailing party in
such action shall be entitled to reimbursement of reasonable attorney's fees and
costs from the other party.
This Agreement shall become effective and binding upon CONSULTANT'S
execution hereof without the necessity of execution by the COMPANY.
DATED THIS 13TH DAY OF FEBRUARY, 1998.
INLAND ENTERTAINMENT CORPORATION TORREY PINES CONSULTANTS, INC.
A UTAH CORPORATION A CALIFORNIA CORPORATION
By: /s/ AB LAUB By: /s/ ARTHUR R. PFIZENMEYER
------------------------------ --------------------------
AB Laub Arthur R. Pfizenmeyer
Title: EVP/CFO Title: President
----------------------------
/s/ ARTHUR R. PFIZENMEYER
------------------------------
Arthur R. Pfizenmayer
4
<PAGE> 1
EXHIBIT 10.32
FIRST AMENDMENT TO CONSULTING AGREEMENT
This FIRST AMENDMENT TO CONSULTING AGREEMENT, ("Amendment") is made and
entered into as of May 30, 1998, by and among Inland Entertainment Corporation,
a Utah corporation (the "Company"), and Torrey Pines Consultants, Inc., a
California corporation (the "Consultant").
RECITALS
WHEREAS the parties hereto have previously entered into that certain Consulting
Agreement (the "Agreement") dated February 13, 1998; and
WHEREAS the parties desire and intend to amend and modify the Agreement as set
forth herein.
NOW THEREFORE, for good and valuable consideration, receipt of which is
acknowledged hereby, Company and Consultant hereby agree as follows:
1. Incorporation by Reference. The parties hereto incorporate by reference
herein each and every covenant, term and condition contained in the Agreement as
if more fully set forth herein, subject only to the amendment and modifications
contained in this Amendment.
2. Amendment & Modification. In accordance with the provisions of Section 15 of
the Agreement, the parties hereby amend and modify the Agreement as follows:
(A) Consulting Services. Section 1.1 is amended as follows:
"1.1 Scope and Term. During the period from February 13, 1998, through
February 13, 1999, the ("Consultation Period"), the Consultant agrees to provide
consulting services from time to time to the Company. During the Consultation
Period, the Consultant shall be engaged by the Company in a consulting capacity
to tender such advisory services and projects as the Consultant may be assigned
from time to time by the Chairman of the Board of the Company for matters
specifically relating to the Barona Casino and the Barona Band of Mission
Indians. The Consultant shall submit a written report regarding the project
assignment and/or services rendered within 15 days of the end of each month of
the Consultation Period (the "Due Date"). If Consultant fails to submit this
written report to the Chairman of the Board within 30 days of the Due Date,
payment to the Consultant under Section 2 shall be suspended. It is further
agreed that either party may terminate this agreement upon 30 days prior written
notice. In the event that Company terminates this agreement prior to the end of
the Consultation Period, the Consultant shall receive all unpaid compensation
due as set forth in Section 2 and shall also receive vesting in the Stock
options as set forth in Section 2.1 as if this agreement was not terminated by
Company. THE PARTIES HERETO SHALL HAVE THE OPTION TO RENEW AND/OR EXTEND THIS
AGREEMENT BEYOND THE INITIAL CONSULTATION PERIOD. THE PARTY SEEKING THE
EXTENSION OR RENEWAL OF THIS AGREEMENT SHALL PROVIDE THE OTHER PARTY WITH
WRITTEN NOTICE OF THE SAME 30 DAYS PRIOR TO
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THE EXPIRATION OF THE INITIAL CONSULTATION PERIOD. UPON RECEIPT OF SUCH WRITTEN
NOTICE, THE PARTIES SHALL ENDEAVOR IN GOOD FAITH TO REACH AN AGREEMENT REGARDING
THE EXTENSION OR RENEWAL OF THIS AGREEMENT. HOWEVER, NEITHER PARTY IS HEREBY
OBLIGATED TO EXTEND OR RENEW THIS AGREEMENT AND ANY SUCH EXTENSION OR RENEWAL
SHALL BE UPON TERMS AND CONDITIONS AS MAY BE AGREED BY THE PARTIES."
(B) Compensation. Section 2 is hereby amended as follows:
2. "Compensation During Consultation Period. During the Consultation Period, so
long as its sole shareholder is physically and mentally able, the Consultant
shall render consultative services to the Company as provided in Section 1 of
this Agreement. The Company shall pay the Consultant as compensation for its
services for the one (1) year period commencing on February 13, 1998, and ending
February 13, 1999 THE SUM OF $12,500 PER MONTH TOGETHER WITH A RETAINER OF
$5,500. ALL PERIODIC PAYMENTS HEREIN SHALL BE PAID on the 10th day following the
end of each month of the Consultation Period. Such payments shall not be made in
the event of the death of the Consultant's sole shareholder or his disability
during the Consultation Period. Furthermore, compensation shall cease upon the
termination of this Agreement, OR ANY EXTENSION OR MODIFICATION HEREOF, except
as provided above. The Consultant shall not be entitled to any payments other
than as set forth in this Section 2."
3. Entire Agreement/Merger. This Amendment together with the Agreement contains
the entire and complete understanding among the parties concerning its subject
matter and all representations , agreements, arrangements and understandings
between or among the parties, whether oral or written, have been fully merged
herein and are superceded hereby.
4. Severability. In the event that any one or more of the provisions contained
herein (or parts thereof), or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected, it
being intended that all of the rights and privileges shall be enforceable to the
fullest extent permitted by law.
5. Binding Effect. (a) This Amendment shall be binding upon and inure to the
benefit of the Consultant and any successor of or to the Company, including,
without limitation, any persons acquiring directly or indirectly all or
substantially all of the business and/or assets of the Company whether by
purchase, merger, consolidation, reorganization or otherwise (and successor
shall thereafter be deemed included in the definition of the Company for
purposes of this Amendment), but shall not otherwise be assignable or delegable
by the Company. Unless the Consultant otherwise agrees the Company's obligations
hereunder shall not be terminated by any such acquisition of all or
substantially all of the business and/or assets of the Company.
(b) This Amendment shall inure to the benefit of and be
enforceable by the Consultant's and its sole shareholder's personal or legal
representatives, executors, administrators, successors, heirs, distributees
and/or legatees.
(c) This Amendment is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign, transfer or
delegate this Amendment or any rights or obligations hereunder except as
expressly provided in subparagraph (a) of this Paragraph.
(d) This Amendment is intended to be for the exclusive
benefit of the parties hereto, and no third party shall have any rights
hereunder.
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6. Amendment/Waiver. This Amendment may be modified, amended, supplemented,
and/or rescinded only through an express written instrument signed by all of the
parties or their respective successors and assigns. Any party may specifically
and expressly waive in writing any portion of this Amendment or any breach
hereof, but no such waiver shall constitute a further or continuing waiver of
any preceding of succeeding breach of the same or any other provision. The
consent by one party to any act for which such consent was required shall not be
deemed to imply consent or waiver of the necessity of obtaining such consent for
the same or similar acts in the future.
IN WITNESS WHEREOF, the parties have executed and delivered this FIRST
AMENDMENT TO CONSULTING AGREEMENT.
Dated: 6/24/98 Inland Entertainment Corporation
------------------------------- a Utah corporation
By: /s/ L. DONALD SPEER, II
----------------------------
L. Donald Speer, II
Chairman of the Board
Dated: 6/26/98 Torrey Pines Consultants, Inc.
------------------------------ a California corporation
By: /s/ ARTHUR R. PFIZENMAYER
----------------------------
Arthur R. Pfizenmayer
President
(Signature Page to First Amendment to Consulting Agreement)
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EXHIBIT 10.33
ADDENDUM TO
CONSULTING AGREEMENT
This addendum is made and entered into as of February 24, 1999, by and
among Inland Entertainment Corporation, a Utah corporation (the "Company"), and
Torrey Pines Consultants, Inc., a California corporation (the "Consultant").
WITNESSED
Company and Consultant have previously entered into a CONSULTING
AGREEMENT (the "Agreement"), dated as of February 13, 1998, and
Company and Consultant desire to extend said Agreement upon the
following terms and conditions:
1. The Term of the extension shall be the period from February 13,
1999, through February 13, 2000 (the Extension Period).
2. The two sentences in paragraph 1.1 of the Agreement beginning with
"The Consultant shall . . ." and ending with " . . . under Section 2 shall be
suspended." found in lines 7 through 11, are deleted during the Extension
Period.
3. Paragraph 2 of the Agreement is deleted and replaced with the
following during the Extension Period:
"Compensation During Extension Period. Company shall pay to Consultant
a non refundable retainer of Fifty Thousand Dollars ($50,000.00) (the
Retainer Amount). Consultant shall invoice Company, on a pre-approved
basis, for its consulting services at the rate of One Hundred and
Twenty Five Dollars ($125.00) per hour. If and when the Consultant=s
pre-approved consulting services exceed the Retainer Amount during the
term of this Addendum, then Consultant will continue to invoice Company
and Company shall pay to Consultant for said services at the rate of
One Hundred Twenty Five Dollars ($125.00) per hour. If, at the end of
the Extension Period, Consultant has not invoiced Company for the
entire amount of the Retainer Amount, then Consultant shall be entitled
to keep said amount without any liability to Company.
In addition to the compensation for its services, Consultant
shall invoice Company and Company shall reimburse to Consultant its
reasonable travel and subsistence (food and lodging) costs."
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4. Paragraph 10, Notices, shall be amended for notices to Company by
deleting "Mary Jo Boring, Controller and Chief Accounting Officer" and replacing
said notice to be "Attn.: L. Donald Speer, II, Chairman of the Board" during the
Extension Period.
5. All other terms and conditions of the Agreement, except as herein
modified shall remain in full force and effect during the Extension Period.
IN WITNESS WHEREOF, the parties have executed and delivered this
ADDENDUM.
Inland Entertainment Corporation
A Utah Corporation
Dated: February 24, 1999 By: /s/ L. DONALD SPEER, II
------------------------------
L. Donald Speer, II
Chairman of the Board
Torrey Pines Consultants, Inc.,
A California Corporation
Dated: February 19, 1999 By: /s/ ARTHUR R. PFIZENMAYER
------------------------------
Arthur R. Pfizenmayer
President
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EXHIBIT 10.34
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT ("agreement") is dated this 19th day of
December, 1997, by and between Inland Entertainment Corporation, a Utah
corporation, whose principal place of business is located at 16868 Via Del Campo
Court, Suite 200, San Diego, CA 91217, as Lender and Secured Party (Lender), and
Christopher Wm. Voisin, residing at 6808 Watercourse Drive, Carlsbad, CA. 92009
(Debtor).
Recitals
The Lender, on or about August 25, 1997 and November 20, 1997, loaned
to the Debtor the sums of Four-Thousand Four-Hundred and Sixty-Two ($4,462.00)
Dollars and Forty-Five Thousand ($45,000.00) Dollars, respectively, totaling
Forty-Nine Thousand, Four-Hundred and Sixty-Two ($49,462.00) Dollars, said sums
which the Debtor has agreed to repay with interest at the rate of 8 percent per
annum, as evidenced by the Debtor' promissory note attached hereto and
incorporated by reference herein as Exhibit "A".
That Lender and Debtor enter into this written agreement to memorialize
the terms and conditions of the loan agreement and to more fully set forth the
terms and conditions thereof.
It is Therefore Agreed:
1. Obligation to pay - Execution and delivery of promissory note. The Debtor,
concurrently with the execution and delivery of this agreement, will execute and
deliver to the Lender a promissory note in favor of the Lender evidencing the
combined loan amount of $49,462.00 and the terms and conditions of payment
including principal and interest.
2. Collateral. The Debtor desires to enter into this agreement for the purpose
of creating a security interest in favor of Lender as Secured Party, in the real
and personal property listed and described in Exhibit "B", the same attached
hereto and incorporated by reference herein, and in all additions and accessions
thereto, substitutions thereof and all proceeds of their sale or disposition
(all hereinafter referred to collectively as "collateral").
3. Creation of security interest. The Debtor, in order to secure (1) payment of
the debt evidenced by the note, including renewals and extensions thereof; (2)
all costs and expenses incurred in collection of the note; and (3) all future
advances made by the Lender, hereby grants to the Lender a security interest in
the collateral described in Exhibit "B".
4. Care, use and disposition of collateral. The Debtor shall use reasonable care
in maintaining the collateral and until and unless default occurs hereunder, the
Debtor shall be entitled to the sole and exclusive possession, use, and
enjoyment of the collateral including, in the case of any and all real property
collateralized hereby, the right to lease, rent, or sell said real property. In
all other cases, the Debtor shall not encumber, dispose, hypothecate,
collateralize, or transfer the collateral or any part or interest therein except
in accordance with the terms and provisions set forth in paragraph 5
hereinbelow.
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5. Sale, transfer, or other disposition of real property collateral. The Debtor
shall have the right to sell the real property and/or any interest therein
during the term of this agreement. It is agreed that in the case of any such
sale the Debtor shall have the option of applying the proceeds of the sale
towards the purchase of other real property or towards and against the principal
amount owed and outstanding. In any instance in which the Debtor sells the real
property and/or any interest therein and does not elect to apply the proceeds of
the sale towards the purchase of other real property, then the net proceeds
thereof shall be paid over to the Lender to be applied against the principal
amount owed and outstanding. To the extent that the net proceeds exceed the
principal amount owed, the balance shall be retained by the Debtor.
The Debtor shall also have the right to transfer, will, devise, or
bequeath his interest in the real property to his spouse for purposes of
protecting her interest in their marital estate including any and all community
or quasi-community property rights and interests; however, any such transfer
shall be subject the terms and conditions of this agreement and the promissory
note attached hereto. If so desired by the Lender and prior to any such transfer
or testimonial disposition of the real property, the Debtor shall require the
spouse to execute an addendum to this agreement deemed reasonably necessary to
protect the Lender=s security interest therein.
The Debtor shall not otherwise encumber, pledge, hypothecate, transfer,
create any security interest therein, collateralize, or otherwise dispose of the
collateral or any of Debtor=s rights or interests therein without the prior
written consent of the Lender or as allowed under this agreement.
6. Default and remedies. In the event that the Debtor defaults in the payment of
the principal or interest of the loan, or in the payment of the expenses
mentioned in paragraph 3, the Lender may, on ten days= notice to the Debtor,
sell such of the real property, and/or garnish and attach the wages of the
Debtor, as will be sufficient to pay such principal, interest, and expenses, and
the Lender may become the purchaser at any such sale. The proceeds of any such
sale shall be retained by the Lender and applied in the following order:
principal, interest, expenses; and shall pay any balance of the proceeds to the
Debtor. In the event that the proceeds of sale are insufficient to pay the
Lender in full, the Debtor shall remain liable to the Lender for any deficiency.
In addition to the remedies set forth above, upon default, Lender shall have any
and all rights and remedies at law and in equity as may be recognized at the
time of default and which are not inconsistent with the terms hereof.
7. Title and warranties. Debtor warrants that he has good, marketable and clear
title to the real property, subject to any and all encumbrances and liens of
record, lease and/or rental agreements, and subject to any and all community or
quasi-community property interest in said property. It is expressly agreed and
understood by the parties hereto that the real property is currently subject to,
and will continue to be subject to a lease and/or rental agreement with an
option to purchase
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by the Lessee, and that the Debtor shall have the sole and exclusive right to
renew, extend, release, or relet the real property on terms and conditions
agreeable to the Debtor and Lessee provided the same does not materially
jeopardize or damage the Lenders= security interests therein.
8. Merger. The terms and conditions of this agreement shall merge with and
become part of any and all subsequent and collateral agreements entered into by
and between the parties as if more fully set forth herein.
9. Governing law. The terms and conditions of this agreement shall be governed,
construed, and enforced in accordance with the laws of the State of California,
regardless of the laws that may be applicable under the principles of conflicts
of law.
10. Recitals. The recitals to this agreement shall constitute part of this
agreement.
11. Binding effect. The parties hereby agree that the terms and conditions of
this agreement shall inure to the benefit of and shall be binding upon the
parties hereto, their successors, heirs, transferees, and assigns.
12. Entire agreement. This agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter described.
All prior or contemporaneous agreements, understandings, representations,
warranties, and statements, oral or written, relating to the subject matter are
superseded and without effect. No modification to this agreement shall be
binding unless in writing and executed by the parties or their lawful
representatives.
13. Counterparts. This agreement may be signed in multiple counterparts, each of
which shall have the same effect as originals, but all such counterparts
collectively shall constitute the same instrument.
This agreement shall become effective and binding upon the parties
hereto on the date and year first above written.
Lender: Debtor:
Inland Entertainment Corporation Christopher Wm. Voisin
a Utah corporation
By: /s/ L. DONALD SPEER, II By: /s/ CHRISTOPHER WM. VOISIN
------------------------------ ---------------------------------
L. Donald Speer, II Christopher Wm. Voisin
Title: President
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EXHIBIT "A"
PROMISSORY NOTE
For value received, and in accordance with the terms and conditions of
the Loan and Security Agreement (the "loan agreement"), the undersigned
("Promisor") promises to pay to Inland Entertainment Corporation, a Utah
corporation (the "Corporation"), or order, at 16868 Via Del Campo Court, Suite
200, San Diego, CA. 91217 the sum of FORTY-NINE THOUSAND, FOUR-HUNDRED AND
SIXTY-TWO ($49,462.00) DOLLARS with 8 percent interest, fixed rate, per annum,
payable in monthly installments of equal amounts on the same date of each month
thereafter until paid in full, said installments payable on interest and
principal as follows:
1. INTEREST ONLY PAYMENT - INSTALLMENT PERIOD. Promisor shall make interest only
payments to the CORPORATION in equal monthly installments of $329.75, the same
due and payable on the fifteenth day of each month commencing January 15, 1998
and continuing thereafter until October 15, 1998. At the expiration of said
installment period, Promisor and the Corporation may agree to extend the period
of interest only installment payments for an additional six (6) months. If the
parties elect not to extend said period, the Promisor shall thereafter make
payments in accordance with paragraph 2 herein. At any time during this period,
Promisor may elect to make additional payments, the same to be applied towards
the outstanding principal only.
2. PRINCIPLE AND INTEREST - MONTHLY INSTALLMENTS. Subsequent to the expiration
of the interest only payment installment period, Promisor shall pay to the
Corporation, in equal monthly installments, the sum of $1,000.00 per month
including principal and interest, for a period of thirty-six (36) months
commencing November 15, 1998 and continuing through October 15, 2001.
3. BALLOON PAYMENT. That on or about November 15, 2001, Promisor shall
pay-in-full, to the Corporation, any and all balance due and owed to the
Corporation under the terms and conditions of this promissory note and the loan
agreement.
4. LATE CHARGE. Whenever payment of any installment is in default for at least
ten (10) days, a penalty in the amount of five (5%) percent on the unpaid
installment shall be assessed; and
5. COLLECTION COSTS. Should legal proceedings be instituted to collect any
amount due hereunder, a sum equal to all collection costs and expenses,
including attorney=s fees shall be assessed and due hereunder.
6. ACCEPTANCE OF LATE PAYMENT. The acceptance by the Corporation of any
installment after any default shall not operate to extend the time of payment of
any amount then remaining unpaid or constitute a waiver of any of the other
rights of the Corporation.
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7. COLLATERAL. To secure payment of this note, and of any liability of
liabilities of the Promisor to the Corporation, due or to become due, or that
may hereafter be contracted or existing, the Promisor has entered into a loan
and security agreement with the Corporation, granting the Corporation a security
interest in any and all real and personal property set forth and listed on
Exhibit "B" to said loan agreement.
8. PREPAYMENT. Promisor, at its election, may make additional payments as
against the principal amount due and owed under the terms of the loan agreement
and this promissory note. In doing so Promisor shall suffer no prepayment
penalty.
9. DEFAULT REMEDIES. In case of default in the payment of this promissory note,
the Corporation shall have all rights in the collateral given under the terms
and conditions of the loan agreement together with any and all rights and
remedies at law or in equity, not inconsistent with the terms and conditions of
the loan agreement, existing at the time of said default and as may be
enforceable in the State of California.
10. ACCELERATION, WAIVERS. The Corporation may accelerate the due date of this
instrument and demand immediate payment whenever default shall occur and the
Corporation in good faith believe that the prospect of payment is impaired. The
Promisor waives presentment demand, notice of dishonor, protest, and all other
notices or demands in connection with the delivery, acceptance, performance,
default, or endorsement of this promissory note.
11. MERGER. The terms and conditions of this promissory note shall merge with
and become part of any and all previous, subsequent, and collateral agreements,
including the loan agreement entered into by and between the Promisor and the
Corporation.
12. GOVERNING LAW. The terms and conditions of this promissory note shall be
governed, construed, and enforced in accordance with the laws of the State of
California, regardless of the laws that may be applicable under the principle of
conflicts of law.
DATED THIS 19TH DAY OF DECEMBER, 1997.
------------------------------
A-2
<PAGE> 6
EXHIBIT "B"
TO
LOAN AND SECURITY AGREEMENT
COLLATERAL SUBJECT TO LOAN AND SECURITY AGREEMENT
The following real and personal property ("Collateral") is hereby subject to
that certain Loan and Security Agreement ("Agreement") entered into on the 19th
day of December, 1997 by and between Inland Entertainment Corporation ("Lender")
and Christopher Wm. Voisin ("Debtor"):
1. Real Property:
(a) Debtor's residence located at 7716 Pine Falls Dr., Las Vegas,
Nevada 89121
2. Personal Property:
(a) None
B-1
<PAGE> 1
EXHIBIT 10.35
PROMISSORY NOTE
For value received, and in accordance with the terms and conditions of
the Loan and Security Agreement (the "loan agreement"), the undersigned
("Promisor") promises to pay to Inland Entertainment Corporation, a Utah
corporation (the "Corporation"), or order, at 16868 Via Del Campo Court, Suite
200, San Diego, CA. 91217 the sum of FORTY-NINE THOUSAND, FOUR-HUNDRED AND
SIXTY-TWO ($49,462.00) DOLLARS with 8 percent interest, fixed rate, per annum,
payable in monthly installments of equal amounts on the same date of each month
thereafter until paid in full, said installments payable on interest and
principal as follows:
1. INTEREST ONLY PAYMENT - INSTALLMENT PERIOD. Promisor shall make interest only
payments to the CORPORATION in equal monthly installments of $329.75, the same
due and payable on the fifteenth day of each month commencing January 15, 1998
and continuing thereafter until October 15, 1998. At the expiration of said
installment period, Promisor and the Corporation may agree to extend the period
of interest only installment payments for an additional six (6) months. If the
parties elect not to extend said period, the Promisor shall thereafter make
payments in accordance with paragraph 2 herein. At any time during this period,
Promisor may elect to make additional payments, the same to be applied towards
the outstanding principal only.
2. PRINCIPLE AND INTEREST - MONTHLY INSTALLMENTS. Subsequent to the expiration
of the interest only payment installment period, Promisor shall pay to the
Corporation, in equal monthly installments, the sum of $1,000.00 per month
including principal and interest, for a period of thirty-six (36) months
commencing November 15, 1998 and continuing through October 15, 2001.
3. BALLOON PAYMENT. That on or about November 15, 2001, Promisor shall
pay-in-full, to the Corporation, any and all balance due and owed to the
Corporation under the terms and conditions of this promissory note and the loan
agreement.
4. LATE CHARGE. Whenever payment of any installment is in default for at least
ten (10) days, a penalty in the amount of five (5%) percent on the unpaid
installment shall be assessed; and
5. COLLECTION COSTS. Should legal proceedings be instituted to collect any
amount due hereunder, a sum equal to all collection costs and expenses,
including attorney=s fees shall be assessed and due hereunder.
6. ACCEPTANCE OF LATE PAYMENT. The acceptance by the Corporation of any
installment after any default shall not operate to extend the time of payment of
any amount then remaining unpaid or constitute a waiver of any of the other
rights of the Corporation.
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7. COLLATERAL. To secure payment of this note, and of any liability of
liabilities of the Promisor to the Corporation, due or to become due, or that
may hereafter be contracted or existing, the Promisor has entered into a loan
and security agreement with the Corporation, granting the Corporation a security
interest in any and all real and personal property set forth and listed on
Exhibit "B" to said loan agreement.
8. PREPAYMENT. Promisor, at its election, may make additional payments as
against the principal amount due and owed under the terms of the loan agreement
and this promissory note. In doing so Promisor shall suffer no prepayment
penalty.
9. DEFAULT REMEDIES. In case of default in the payment of this promissory note,
the Corporation shall have all rights in the collateral given under the terms
and conditions of the loan agreement together with any and all rights and
remedies at law or in equity, not inconsistent with the terms and conditions of
the loan agreement, existing at the time of said default and as may be
enforceable in the State of California.
10. ACCELERATION, WAIVERS. The Corporation may accelerate the due date of this
instrument and demand immediate payment whenever default shall occur and the
Corporation in good faith believe that the prospect of payment is impaired. The
Promisor waives presentment demand, notice of dishonor, protest, and all other
notices or demands in connection with the delivery, acceptance, performance,
default, or indorsement of this promissory note.
11. MERGER. The terms and conditions of this promissory note shall merge with
and become part of any and all previous, subsequent, and collateral agreements,
including the loan agreement entered into by and between the Promisor and the
Corporation.
12. GOVERNING LAW. The terms and conditions of this promissory note shall be
governed, construed, and enforced in accordance with the laws of the State of
California, regardless of the laws that may be applicable under the principle of
conflicts of law.
DATED THIS 19TH DAY OF DECEMBER, 1997.
/s/ CHRISTOPHER WM. VOISIN
---------------------------
Christopher Wm. Voisin
2
<PAGE> 1
EXHIBIT 10.36
AMENDMENT "A"
TO
LOAN AND SECURITY AGREEMENT
This AMENDMENT "A" ("Amendment") to that certain LOAN AND SECURITY AGREEMENT
("Agreement") dated December 19, 1997, is dated this 1st day of May, 1999 by and
between Inland Entertainment Corporation, a Utah corporation, whose principal
place of business is located at 16868 Via Del Campo Court, Suite 200, San Diego,
CA 91217, as Lender and Secured Party (Lender), and Christopher Wm. Voisin,
residing at 7565 Charmant Dr., #503, San Diego, CA 92122 (Debtor), is hereby
amended as follows:
Recitals
The Lender, on or about August 25, 1997 and November 20, 1997, loaned
to the Debtor the sums of Four-Thousand Four-Hundred and Sixty-Two ($4,462.00)
Dollars and Forty-Five Thousand ($45,000.00) Dollars, respectively, totaling
Forty-Nine Thousand, Four-Hundred and Sixty-Two ($49,462.00) Dollars, said sums
which the Debtor has agreed to repay with interest at the rate of eight (8)
percent per annum, as evidenced by the Debtor's promissory note attached thereto
and incorporated by reference as Exhibit "A".
That Lender and Debtor have agreed to modify and amend the Agreement in
accordance with the terms set forth herein.
NOW, THEREFORE the parties agree as follows:
1. Reaffirmation and Restatement of Loan and Security Agreement of
December 19, 1997. The parties agree that except for the modifications set forth
in this Amendment, the terms and conditions of the Agreement entered into and
dated December 19, 1997 shall remain in full force and effect and incorporate
herein the terms and conditions thereof as if more fully set forth herein.
2. Principle and interest - monthly installments. Debtor and Lender
agree that Debtor shall make monthly installment payments on the outstanding
loan in the amount of $500.00 per month, commencing May 15, 1999 and continuing
until May 1, 2000 at which time Debtor shall commence making payments in the
amount of $1,000.00 per month, said payments to continue through October 15,
2001.
3. Sale, transfer, or other disposition of real property collateral.
The Debtor shall have the right to sell the real property and/or any interest
therein during the term of the Agreement. It is agreed that in the case of any
such sale the Debtor shall have the option of applying the proceeds of the sale
towards the purchase of other real property, to costs and expenses related to
medical care, or towards and against the principal amount owed and outstanding.
In any instance in which the Debtor sells the real property and/or any interest
therein and does not elect to apply the proceeds of the sale towards the
purchase of other real property or medical costs and expenses, then the net
proceeds thereof shall be paid over to the Lender to be applied against the
principal amount owed and outstanding. To the extent that the net proceeds
exceed the principal amount owed, the Debtor shall retain the balance.
1
<PAGE> 2
4. Merger. The terms and conditions of this Amendment shall merge with
and become part of any and all subsequent and collateral agreements or
amendments entered into by and between the parties as if more fully set forth
herein.
5. Governing law. The terms and conditions of this Amendment shall be
governed, construed, and enforced in accordance with the laws of the State of
California, regardless of the laws that may be applicable under the principles
of conflicts of law.
6. Recitals. The recitals to this Amendment shall constitute part of
this Amendment.
7. Binding effect. The parties hereby agree that the terms and
conditions of this Amendment shall inure to the benefit of and shall be binding
upon the parties hereto, their successors, heirs, transferees, and assigns.
8. Entire Agreement. This Amendment together with the Agreement dated
December 19, 1997 constitutes the entire Agreement and understanding between the
parties with respect to the subject matter described. Except for the Agreement
all prior or contemporaneous Agreements, understandings, representations,
warranties, and statements, oral or written, relating to the subject matter are
superseded and without effect. No modification to this Amendment or the
Agreement shall be binding unless in writing and executed by the parties or
their lawful representatives.
9. Counterparts. This Amendment may be signed in multiple counterparts,
each of which shall have the same effect as originals, but all such counterparts
collectively shall constitute the same instrument.
This Amendment shall become effective and binding upon the parties
hereto on the date and year first above written.
Lender: Debtor:
Inland Entertainment Corporation Christopher Wm. Voisin
By: /s/ AB LAUB By: /s/ CHRISTOPHER WM. VOISIN
--------------- --------------------------
AB Laub Christopher Wm. Voisin
Title: CFO
2
<PAGE> 1
EXHIBIT 10.37
NEGOTIABLE SECURED
PROMISSORY NOTE
THIS NEGOTIABLE PROMISSORY NOTE (THE "NOTE") AUGUST 5, 1999 IS BEING
DELIVERED IN CONNECTION WITH THAT CERTAIN LOAN AGREEMENT, DATED AS OF
DECEMBER 19, 1997 (THE "LOAN AGREEMENT") BY AND BETWEEN CHRISTOPHER WM.
VOISIN ("MAKER"), ON THE ONE HAND, AND INLAND ENTERTAINMENT
CORPORATION, A UTAH CORPORATION, FORMALLY KNOWN AS INLAND CASINO
CORPORATION, A UTAH CORPORATION ("HOLDER"), ON THE OTHER HAND. UNLESS
OTHERWISE DEFINED HEREIN, ALL CAPITALIZED TERMS NOT DEFINED HEREIN
SHALL HAVE THE MEANING SET FORTH IN THE AGREEMENT
1. Restatement and Incorporation by Reference. For value received, and in
accordance with the terms and conditions hereof, the undersigned ("Maker")
promises to pay to Inland Entertainment Corporation, a Utah corporation (the
"Holder"), or order, at 16868 Via Del Campo Court, Suite 200, San Diego, CA.
91217 the sum of Forty-Nine Thousand, Four-Hundred and Sixty-Two ($49,462.00)
Dollars with eight (8.00 %) percent interest, fixed rate, per annum, payable in
monthly installments of equal amounts on the same date of each month thereafter
until paid in full, said installments payable on interest and principal as
follows:
2. Installment Period. Maker shall make payments to the Holder in equal monthly
installments of $500.00, the same due and payable on the fifteenth day of each
month commencing May 15, 1999 and continuing thereafter until May 15, 2000 at
which time Maker shall commence making payment in the amount of $1,000.00 per
month until November 15, 2001. At the expiration of said installment period,
Maker and the Holder may agree to extend the period of this note. If the parties
elect not to extend said period, the Maker shall thereafter make payments in
accordance with paragraph 2 herein. At any time during this period, Maker may
elect to make additional payments, the same to be applied towards the
outstanding principal only.
3. Balloon Payment. That on or about November 15, 2001, Maker shall pay-in-full,
to the Holder, any and all balance due and owed to the Holder under the terms
and conditions of this promissory note.
4. Late Charge. Whenever payment of any installment is in default for at least
ten (10) days, a penalty in the amount of five (5%) percent on the unpaid
installment may be assessed; and
5. Collection Costs. Should legal proceedings be instituted to collect any
amount due hereunder, a sum equal to all collection costs and expenses,
including attorney=s fees shall be assessed and due hereunder.
1
<PAGE> 2
6. Acceptance of Late Payment. The acceptance by the Holder of any installment
after any default shall not operate to extend the time of payment of any amount
then remaining unpaid or constitute a waiver of any of the other rights of the
Holder.
7. Collateral. To secure payment of this note, and of any liability or
liabilities of the Maker to the Holder, due or to become due, or that may
hereafter be contracted or existing, the Maker hereby grants the Holder a
security interest in any and all salary, bonus, stock options and shares of
stock in the Company to which Promissor is entitled.
8. Prepayment. Maker, at its election, may make additional payments as against
the principal amount due and owed under the terms of this promissory note. In
doing so Maker shall suffer no prepayment penalty.
9. Default Remedies. In case of default in the payment of this promissory note,
the Holder shall have all rights in the collateral given under the terms and
conditions of this promissory note together with any and all rights and remedies
at law or in equity, not inconsistent with the terms and conditions hereof,
existing at the time of said default and as may be enforceable in the State of
California.
10. Acceleration, Waivers. The Holder may accelerate the due date of this
instrument and demand immediate payment whenever default shall occur and the
Holder in good faith believe that the prospect of payment is impaired. The Maker
waives presentment demand, notice of dishonor, protest, and all other notices or
demands in connection with the delivery, acceptance, performance, default, or
indorsement of this promissory note.
11. Attachment. This Negotiable Secured Promissory Note shall be attached to the
Note dated December 19, 1997 and shall merge with and become part of the Note
and shall supercede any other note and all other terms inconsistent herewith.
12. Merger. The terms and conditions of this promissory note shall merge with
and become part of any and all previous, subsequent, and collateral agreements
entered into by and between the Maker and the Holder.
13. Governing law. The terms and conditions of this promissory note shall be
governed, construed, and enforced in accordance with the laws of the State of
California, regardless of the laws that may be applicable under the principle of
conflicts of law.
Dated this 5th day of August, 1999.
/s/ CHRISTOPHER WM. VOISIN
----------------------------
Christopher Wm. Voisin
2
