EXECUTION VERSION
MUTUAL S
ETTLEMENT AND RELEASE AGREEMENT
THIS MUTUAL SETTLEMENT AND RELEASE AGREEMENT (“Agreement
”), effective as
of the Settlement Date (as defined below), is entered into on July 2, 2010 by and among the following
persons and entities:
1. Munish Krishan (“Krishan
”), individually and on behalf of all beneficiaries of the MMSK
Trust, a trust organized and established under the laws of the Cook Islands (the “MMSK
Trust”), Seema Krishan, individually, Mahnik Krishan, individually, Amani Krishan,
individually, Manila Industries, Inc., a California corporation (“Manila
”), and Netsphere,
Inc., a Michigan corporation (“Netsphere
”) (hereinafter collectively referred to as the
“Manila Parties
”);
2. Jeffrey Baron, individually and as a beneficiary of and on behalf of all beneficiaries of: (i)
the Village Trust, a trust organized and established under the laws of the Cook Islands
(the “Village Trust
”); (ii) Equity Trust Company IRA 19471; (iii) the Daystar Trust (sole
member of Ondova); and (iv) the Belton Trust (sole member of Domain Jamboree, LLC);
Jeffrey Baron as Trustee of the Daystar Trust, a trust organized and established under the
laws of Texas; and Jeffrey Baron, as Trustee of the Belton Trust, a trust organized and
established under the laws of Texas (hereinafter collectively referred to as “Baron
”);
3. Biju Mathew, Amir Asad, Rohit Krishan, Manish Aggarwal, and Amer Zaveri
(hereinafter jointly referred to as the “Manila Related Parties
”);
4. Ondova Limited Company d/b/a Compana, LLC, a Texas limited liability company
(“Ondova
” or “Debtor”), debtor in Bankruptcy Case No. 09-34784-SGJ-11 (the
“Bankruptcy Case
”) pending in the United States Bankruptcy Court for the Northern
District of Texas, Dallas Division (the “Bankruptcy Court
”);
5. Daniel J. (Corky) Sherman, Chapter 11 Bankruptcy Trustee of Ondova (“Sherman
” or the
“Chapter 11 Trustee
”);
6. HCB, LLC, a Delaware limited liability company, and HCB, LLC, a USVI limited
liability company (individually or collectively, “HCB
”), Realty Investment Management,
LLC, a Delaware limited liability company, Realty Investment Management, LLC, a
USVI limited liability company (individually or collectively, “RIM
”), Simple Solutions,
LLC, a USVI limited liability company (“Simple Solutions
”), Search Guide, LLC, a
USVI limited liability company (“Search Guide
”) and Blue Horizon Limited Liability
Company, a USVI limited liability company (“Blue Horizon
”) (hereinafter jointly
referred to as the “USVI LLCs
”);
7. Four Points Management, LLLP, a USVI limited liability limited partnership and sole
member of each of the USVI LLCs (“Four Points
”);
8. Marshden, LLC, a USVI limited liability company and general partner of Four Points
(“Marshden
”);
9. Novo Point, Inc., a USVI corporation (“Novo Point
”), Iguana Consulting, Inc., a USVI
corporation (“Iguana Consulting
”), and Quantec, Inc., a USVI corporation (“Quantec”)
(hereinafter collectively referred to as the “USVI corporations
”) (USVI LLCs, Four
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EXECUTION VERSION
Points, Marshden, and
USVI corporations hereinafter collectively referred to as the
“USVI Entities
”);
10. Jeanne Hudson (“Hudson
”), Denis Kleinfeld (“Kleinfeld”), individually and on behalf of
all officers, directors, managers, members and employees of each of the USVI Entities
(hereinafter collectively referred to as the “USVI Officers
”) (USVI Entities and USVI
Officers, inclusive of Hudson, are hereinafter collectively referred to as the “USVI
Parties”);
11. Charla Aldous (“Aldous
”), Jeff Rasansky (“Rasansky”), and Ron Sheridan (“Sheridan”)
(hereinafter collectively referred to as the “Interested Parties
”);
12. Shiloh, LLC, a Delaware limited liability company (“Shiloh
”), the member of which is
Quantec LLC and the manager of which is Novquant LLC;
13. Manassas, LLC, a Texas limited liability company (“Manassas
”);
14. Byron Dean, sole member of Manassas (“Dean
”);
15. Bud Branstetter, manager of Manassas (“Branstetter
”);
16. Javelina, LLC, a Delaware limited liability company (“Javelina
”), the member of which
is Novo Point LLC and the manager of which is Novquant LLC;
17. Diamond Key, LLC, a Texas limited liability company (“Diamond Key
”);
18. Nina deVassal, sole member and manager of Diamond Key (“deVassal
”);
19. The Village Trust and Asiatrust Limited as Trustee of the Village Trust, a trust organized
and established under the laws of the Cook Islands (hereinafter collectively referred to as
the “Trustee of the Village Trust
”);
20. The MMSK Trust and Asiatrust Limited as Trustee of the MMSK Trust, a trust organized
and established under the laws of the Cook Islands (hereinafter collectively referred to as
the “Trustee of the MMSK Trust
”);
21. Iguana Consulting LLC, a Cook Islands limited liability company, Novo Point LLC, a
Cook Islands limited liability company, and Quantec LLC, a Cook Islands limited
liability company (hereinafter collectively referred to as the “Trust LLCs
”) (Shiloh,
Manassas, Javelina, Diamond Key, the Trust LLCs, Dean, Branstetter, deVassal, Trustee
of the Village Trust, and Asiatrust Limited are hereinafter collectively referred to as the
“Trusts
”);
22. Equity Trust Company, a South Dakota trust company, as Custodian of IRA 19471 and as
successor in interest of Mid Ohio Securities as Custodian of IRA 19471 (“Equity Trust
”);
23. Manoj Krishan, individually;
24. CallingCards.com, LLC, a Texas limited liability company (“CC.com
”);
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EXECUTION VERSION
25. Do
main Jamboree, LLC, a Wyoming limited liability company (“DJ
”) and the Belton
Trust as the sole member of DJ (hereinafter collectively referred to as “Domain Jamboree
Parties”); and
26. ID Genesis, LLC, a Utah limited liability company (“ID
”) and Netsphere, Inc. as the sole
member of ID (hereinafter collectively referred to as “ID Genesis Parties
”).
The aforementioned parties may also sometimes be collectively referred to in this Agreement as
the “Parties
” and each, individually as a “Party”.
I
RECITALS:
WHE
REAS, on November 14, 2006, Baron and Ondova filed a civil cause in the District Court,
Dallas County, Texas, 68
th
Judicial District, styled, Ondova Limited Company, et al., vs. Manila
Industries, Inc., Cause No. 06-11717, in which Baron and Ondova alleged claims more fully described in
Plaintiffs’ Petition and First through Sixth Amended Petitions (which claims are incorporated herein by
reference for all purposes and are collectively referred to herein as the “Baron Claims
” and/or “Texas
Case”); and
WHEREAS, on November 15, 2006, Manila, Netsphere and Krishan filed a civil cause against
Ondova, RIM, HCB and Baron in the United States District Court for the Central District of California,
Southern Division, styled Manila Industries, Inc, Netsphere, Inc., and Munish Krishan vs. Ondova,
Limited Co., d/b/a Compana, LLC; Realty Investment Management, LLC, HCB, LLC; and Jeffrey Baron,
Case No. SACV 06-1105 AG (ANx) (which claims are incorporated herein by reference for all purposes
and are collectively referred to herein as the “Manila Claims
” and/or “California Case”); and
WHEREAS, on September 27, 2007, Simple Solutions filed a civil cause against Ondova in the
District Court of the Virgin Islands, Division of St. Thomas & St. John, styled Simple Solutions, LLC vs.
Ondova Limited Co, LLC d/b/a Compana, LLC, No. 3:07-CV-123 (which claims are incorporated herein
by reference for all purposes and are collectively referred to herein as the “Simple Solutions Claims
”
and/or “VI Case
”); and
WHEREAS, on May 28, 2009, Krishan, Manila and Netsphere filed a civil cause against Ondova
and Baron in the United States District Court for the Northern District of Texas, Dallas Division, in which
Aldous and Rasansky have intervened and the Trust LLCs have requested leave to intervene, styled,
Netsphere, Inc., et al. vs. Jeffrey Baron, et al., Case No. 3:09-CV-0988-F (which claims are incorporated
herein by reference for all purposes and are collectively referred to herein as the “Dallas Federal Case
”);
and
WHEREAS, on July 27, 2009 Ondova filed for Chapter 11 protection under the Bankruptcy
Code (as defined below) in the Bankruptcy Court (the “Petition Date
”). Sherman was appointed Chapter
11 Trustee on September 17, 2009; and
WHEREAS, on February 12, 2007, HCB and Simple Solutions filed a civil cause against
Oversee.net in the District Court of the Virgin Islands, Division of St. Thomas-St. John, styled HCB, LC
and Simple Solutions, LLC, v. Oversee.net, Case No. 3:07-CV-00029-CVG (which claims are
incorporated herein by reference for all purposes and are collectively referred to herein as the “USVI
Oversee Lawsuit”); and
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WHEREAS, on November 6, 2009 Oversee.net filed a claim for breach of contract and fraud
against Simple Solutions, LLC, a USVI limited liability company, HCB, LLC, a Delaware Limited
Liability Company and Does 1 to 10 in the United States District of California, Case No. CV09-08154-
OOW (RZx) (“Cal. Oversee Suit
”); and
WHEREAS, on November 12, 2009, Manila and Netsphere filed a civil cause against
Oversee.net and Doe 1 through Doe 10 in the Superior Court of the State of California, styled Manila
Industries, Inc. a California corporation; Netsphere, Inc., a Michigan corporation vs. Oversee.net, a
California corporation; and DOE 1 through DOE 10, inclusive, Case No. BC425821 (which claims are
incorporated herein by reference for all purposes and are collectively referred to herein as the “Manila
Oversee Lawsuit”); and
WHEREAS, on November 2, 2008, Equity Trust Company, f/k/a Mid Ohio Securities, Custodian
FBO IRA 19471 and Jeffrey Baron as Beneficiary of Equity Trust Company FBO IRA 19471 filed a civil
case in the 68
th
Judicial District, Dallas County, Texas, against Rohit Krishan, Individually and d/b/a
Callingcards.com, Munish Krishan and Manoj Krishan, styled Equity Trust Company, f/k/a Mid Ohio
Securities, Custodian FBO IRA 19471 and Jeffrey Baron As Beneficiary of Equity Trust Company FBO
IRA 19471 vs. Rohit Krishan, Individually and d/b/a Callingcards.com, Munish Krishan and Manoj
Krishan, Cause No. DC08-13925-C (which claims are incorporated herein by reference for all purposes
and are collectively referred to herein as the “Phonecards.com Case
”) (the Texas Case, California Case,
VI Case, Dallas Federal Case and Phonecards.com Case are collectively referred to herein as the
“Underlying Cases
”); and
WHEREAS, all Parties generally and/or specifically have denied the allegations made against
them and asserted various defenses and other matters as described more fully in their responsive
pleadings, all of which are incorporated by reference for all purposes into this Agreement; and
WHEREAS, the Parties to this Agreement desire to avoid the necessity, expense, inconvenience
and uncertainty of further litigation and fully and finally resolve all matters by and among them and all
known and unknown claims, counterclaims and cross-claims that have, or could have been, plead in the
past by any of the Parties hereto, arising out of, or in any way related to, the cases, lawsuits and disputes
among them; and
WHEREAS, it is the desire of the Parties to separate any and all business by, between and
among themselves;
NOW, THEREFORE, for and in consideration of the above recitals, which recitals are
contractual in nature, the mutual promises, mutual general releases and agreements herein contained, and
for other good and valuable consideration, the receipt of which are hereby acknowledged, the Parties
hereto do hereby covenant, agree and contract as follows:
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EXECUTION VERSION
II
AGREEMENTS:
1. Payment of Cash
. In consideration of the provisions of this Agreement, including, without
limitation, the Recitals and general releases, at the direction of the Village Trust, Manila will
deliver One Million Two Hundred Fifty Thousand Dollars ($1,250,000) by wire transfer to the
Chapter 11 Trustee (the “Cash Payment
”), which delivery shall be made on behalf of the Village
Trust in accordance with the wire instructions provided by Raymond J. Urbanik to John MacPete
by email dated June 7, 2010, as may be updated with written notice from the Chapter 11 Trustee
to Netsphere at least thirty (30) days prior to any date on which payment is due (the “Cash
Payment Instructions”), on the later of: (i) the date which is thirty (30) days after the Settlement
Date or ninety (90) days after a 9019 motion is filed with the Bankruptcy Court to approve this
Agreement (such applicable date, the “Transfer Date
”). The Chapter 11 Trustee will use the Cash
Payment and the Deferred Payment (as defined below) to pay creditors, administrative costs and
any and all other expenses associated with Ondova’s bankruptcy estate (the “Estate
”).
2. Deferred Payment and Unsecured Claim
.
A. Manila hereby promises to pay the Village Trust the su
m of Six Hundred Thousand
Dollars ($600,000) (“Deferred Payment
”), together with simple interest thereon calculated
as provided in this subsection A. The following provisions are applicable to the Deferred
Payment:
(i) The Deferred Payment and interest thereon is due and
payable in full on or before
the second anniversary of the Transfer Date (such date, the “Maturity Date
”).
(ii) Noncompounding simple interest shall accrue at the rate of ten per
cent (10%) per
annum (computed on the basis of a three hundred sixty-five (365) day year and
the actual number of days elapsed in a year) on the unpaid principal amount of
the Deferred Payment outstanding from time to time, or (if less) the highest rate
then permitted under Texas law. Any accrued interest which for any reason has
not theretofore been paid shall be paid in full on the Maturity Date.
(iii) Manila may, at any time and from time to tim
e without premium or penalty,
prepay all or a portion (in whole number multiples of $1,000 only) of the
outstanding principal amount (and any accrued and unpaid interest thereon) of
the Deferred Payment.
(iv) Payments made by Manila shall be applied (a) first, to the pa
yment of all accrued
and unpaid interest, (b) second, to the payment of principal of the Deferred
Payment), and (c) the balance, if any, to Manila.
(v) Interest payable on the outstanding principal balance of the Deferred Pay
ment
starts as of the first day of the fourth (4
th
) full calendar month after the Transfer
Date (the “Payment Commencement Date
”) and shall be paid on a quarterly
basis, commencing on the Payment Commencement Date (and the first quarterly
payment will be for the period between the Transfer Date and the day
immediately preceding the Payment Commencement Date), and continuing on
the first day of each quarter thereafter until the Maturity Date, at which time all
outstanding principal and interest shall be due and payable in full.
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EXECUTION VERSION
(vi) Manila’s obligations to pay the Deferred Pay
ment to the Village Trust shall be
secured by a pledge of the domain name FreeSex.com pursuant to the Security
Agreement (as defined below).
(vii) All payments to be made pursuant to the provisions
of this Section 2 by Manila
to the Village Trust shall be made in the lawful money of the United States of
America in immediately available U.S. funds by wire transfer in accordance with
the wire instructions provided by Craig Capua to John MacPete by email dated
June 7, 2010, and as may be updated with written notice from the Village Trust
to Manila at least thirty (30) days prior to any date on which payment is due.
Furthermore, the Village Trust may direct Manila to pay Equity Trust, which
payments shall be made on behalf of the Village Trust, pursuant to an agreement
between Equity Trust and the Village Trust; provided, the Village Trust must
provide Manila at least thirty (30) days prior written notice of the wiring
instructions for such payment to Equity Trust.
B. On the Transfer Date, Manila will execute and deli
ver to the Village Trust a security
agreement (the “Security Agreement
”) in the exact form attached hereto as Exhibit A.
C. The Chapter 11 Trustee hereby grants Aldous and Rasansky (hereinafter collectively
referred to as
the “Rasansky Parties
”) a general unsecured claim in the amount of Two
Hundred Thousand Dollars ($200,000) against the Estate. In the event the Rasansky
unsecured claim is not paid in full by the Estate, within thirty (30) days of a written
request from the Rasansky Parties, Jeffrey Baron agrees to pay the Rasansky Parties an
amount equal to the difference between Two Hundred Thousand Dollars ($200,000) and
the actual amount paid on the unsecured claim by the Estate (and, if requested by Jeffrey
Baron, the Village Trust agrees to make a distribution to Jeffrey Baron for such purpose).
3. Split of Disputed Domain Names
.
A. Each of the Manila Parties represent and warrant to Baron, the Trusts, the
Chapter 11
Trustee and Ondova that the Even Group Portfolio of domain names (as defined in
Paragraph 3 of the June 26, 2009, Preliminary Injunction in the Dallas Federal Case
[“Preliminary Injunction
”]) and the domain names in the Restore List (as defined in
Paragraph 5(e) of the Preliminary Injunction) collectively represent the accurate list of
domain names referred to herein as the “Even Group Portfolio
.”
B. Each of Baron, the Trusts, the Chapter 11 Trustee and Ondova represent
and warrant to
the Manila Parties that the Odd Group Portfolio (as defined in Paragraph 3 of the
Preliminary Injunction
) and the domain names in the Allocated Names List (as defined in
Paragraph 5(d) of the Preliminary Injunction) that have not expired, been deleted, or been
transferred to an unrelated third party by the Manila Parties, as of the Transfer Date (the
“Remaining Allocated Names
”) collectively represent the accurate list of domain names
referred to herein as the “Odd Group Portfolio
”.
C. As of the Settlement Date, each of the Manila Parti
es (except for Manila), the Manila
Related Parties, the Trustee of the MMSK Trust, Baron, the Interested Parties, the USVI
Parties, the Trusts, the Chapter 11 Trustee, Ondova and each other Party to this
Agreement (the “Even Group Portfolio Quitclaiming Parties
”) quitclaim any interest in
the Even Group Portfolio to Manila, and make an express quitclaim to Manila and
disavow all rights of every kind, nature and description, if any, they may have, or ever
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EXECUTION VERSION
had, in
and to all rights related to the Even Group Portfolio, including, without limitation,
property rights, contract rights, copyright interests and any other intellectual property
interests, the value of goodwill, and any income that may be derived from and after the
Settlement Date from the domain names and related rights in the Even Group Portfolio.
All rights granted, if any, and the related abandonment of claims and interests in the Even
Group Portfolio are irrevocable.
D. As of the Settlement Date, each of the Manila Parties, the Manila Related Parties, the
Trustee of the MMSK Trust, Baron, the Interested Parties, the USVI Parties, the Trusts
(except for Quantec LLC),
the Chapter 11 Trustee, Ondova and each other Party to this
Agreement (the “Odd Group Portfolio Quitclaiming Parties
”) quitclaim any interest in the
Odd Group Portfolio to Quantec LLC, and make an express quitclaim to Quantec LLC,
and disavow all rights of every kind, nature and description, if any, they may have, or ever
had, in and to all rights related to the Odd Group Portfolio, including, without limitation,
property rights, contract rights, copyright interests and any other intellectual property
interests, the value of goodwill, and any income that may be derived from and after the
Settlement Date from domain names and related rights in the Odd Group Portfolio. All
rights granted, if any, and the related abandonment of claims and interests in the Odd
Group Portfolio are irrevocable. Further, on or before the Transfer Date, Manila shall (i)
provide a list of Remaining Allocated Names to the Village Trust and Jeffrey Baron
through their attorneys, Craig Capua at craig.c@WestLLP.com and Gerrit Pronske at
gpronske@pronskepatel.com, (ii) e-mail Gay Nee (gaynee@webnic.cc) with the list of
Remaining Allocated Names, and (iii) request Gay Nee to update the Whois information
for the Remaining Allocated Names with the following contact information:
Whois Identity Shield
Post Office Box 152
Britton’s Hill
St. Michael, Barbados
Phone: (604) 484-4206
E-mail:
8cGRuPjmxwuKTbEIXkcvQzHx+nKvp1NduvKTpOpDGTDCITozwGM=@2010.identit
yshield.com
The Manila Parties are not required to incur any out-of-pocket expenses in connection
with any transfer of the Remaining Allocated Names to Quantec LLC.
Fifteen (15) days after the Transfer Date shall be referred to as the “Transfer
Implementation Period.” Quantec LLC will pay funds sufficient to the registrar for the
purposes of transferring and renewing the Remaining Allocated Names. Ondova, or other
registrar appointed by Quantec LLC, agrees to insure that the Remaining Allocated
Names will be transferred to the registrar during the Transfer Implementation Period and
implement such transfer.
E. From and after the Settlement Date, the Estate shall continue to own t
he domain name
servers.com, which domain name shall, if necessary, be liquidated, pursuant to Section
363(b) of the Bankruptcy Code (as defined below) or pursuant to a plan, to fund costs of
administration of the Bankruptcy Case and amounts needed with respect to a plan of
reorganization or liquidation, if feasible, with respect to Ondova (the “Ondova Plan
”).
Additionally, it is expressly understood and agreed by the Parties that at no time prior to
the Settlement Date does the Chapter 11 Trustee waive any claim of ownership or
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EXECUTION VERSION
otherwise to other dom
ain names in the Odd Group Portfolio, the Blue Horizon Portfolio
and the Excluded Disputed Domains (as defined below). As used herein, “Excluded
Disputed Domains” means the list of twelve (12) domain names identified in an e-mail
from Raymond J. Urbanik to Gerrit Pronske on June 2, 2010.
4. Blue Horizon Names
. As of the Settlement Date, each of the Manila Parties, the Manila Related
Parties, the Trustee of the MMSK Trust, Baron, the Interested Parties, the USVI Parties, the
Trusts (except for Novo Point LLC), the Chapter 11 Trustee, Ondova and each other Party to this
Agreement (the “Blue Horizon Quitclaiming Parties
”) quitclaim any interest in any and all
domain names that previously were registered through Ondova, exclusive of the Even Group
Portfolio, the Odd Group Portfolio and any domain name not registered through or at Ondova as
of February 22, 2010, and exclusive of pokerstar.com (which is addressed in Section 6 below),
servers.com and the Excluded Disputed Domains (the “Blue Horizon Portfolio
”), to Novo Point
LLC and make an express quitclaim to Novo Point LLC, and disavow all rights of every kind,
nature and description, if any, they may have, or ever had, in and to all rights related to the Blue
Horizon Portfolio, including, without limitation, property rights, contract rights, copyright
interests and any other intellectual property interests, the value of goodwill, and any and all
income that may be derived from and after the Settlement Date from domain names and related
rights in the Blue Horizon Portfolio. All rights granted, if any, and the related abandonment of
claims and interests in the Blue Horizon Portfolio are irrevocable.
5. Searchguide.com
. As of the Settlement Date, each of the Manila Parties, the Manila Related
Parties, the Trustee of the MMSK Trust, Baron, the Interested Parties, the USVI Parties, the
Trusts (except for Novo Point LLC), the Chapter 11 Trustee and Ondova (the “SearchGuide.com
Quitclaiming Parties”) quitclaim any interest in the domain name searchguide.com to Novo Point
LLC and make an express quitclaim to Novo Point LLC, and disavow all rights of every kind,
nature and description, if any, they may have, or ever had, in and to all rights related to the
domain name searchguide.com, including, without limitation, property rights, contract rights,
copyright interests and any other intellectual property interests, the value of goodwill, and the
income that may be derived from searchguide.com from and after the Settlement Date; provided,
such quitclaim is strictly limited to the domain name itself and excludes: (i) any website that
appeared on searchguide.com, (ii) any software associated with seachguide.com, and (iii) any
other content or intellectual property related to searchguide.com (collectively “Searchguide
Software”). All rights granted, if any, and the related abandonment of claims and interests in the
domain name searchguide.com are irrevocable.
6. Pokerstar.com
.
A. As of the Settlement Date, each of the Manila Parties, the Manila Related Parties, the
Trustee of the MMSK Trust, Baron, the Interested Parties, the USVI Parties, the Trusts
(except for the Village Tru
st), the Chapter 11 Trustee, Ondova and each other Party to this
Agreement (the “Pokerstar.com Quitclaiming Parties
”) quitclaim any interest in the
domain name pokerstar.com to the Village Trust, and make an express quitclaim to the
Village Trust and disavow all rights of every kind, nature and description, if any, they
may have, or ever had, in and to all rights related to the domain name pokerstar.com,
including, without limitation, property rights, contract rights, copyright interests and any
other intellectual property interests, the value of goodwill, and the income that may be
derived from pokerstar.com from and after the Settlement Date, provided, such quitclaim
is strictly limited to the domain name itself and excludes: (i) any website that appeared on
pokerstar.com developed in whole or in part by the Manila Parties or the Manila Related
Parties; (ii) any software associated with pokerstar.com developed in whole or in part by
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the Manila Parties or the
Manila Related Parties; and (iii) any other content or intellectual
property related to pokerstar.com developed in whole or in part by the Manila Parties or
the Manila Related Parties (collectively “Pokerstar Software
”). All rights granted, if any,
and the related abandonment of claims and interests in the domain name pokerstar.com
are irrevocable.
B. As consideration for, and contem
poraneously with execution of this Agreement, Manila
and the Village Trust shall enter into a license agreement for pokerstar.com (the “License
Agreement”) in the exact form attached as Exhibit B. Within five (5) business days after
the Settlement Date, Netsphere shall remit in escrow to the Chapter 11 Trustee fifty
percent (50%) of the gross revenue actually received by Netsphere for operation of
pokerstar.com (“Old Pokerstar Revenue
”) during the period commencing April 1, 2009,
and ending June 30, 2010, such remittance to be made by wire transfer in accordance with
the Cash Payment Instructions. Commencing on the date which is thirty (30) days after
the Settlement Date, and continuing on the same day of each month thereafter until the
Transfer Date, Netsphere shall remit in escrow to the Chapter 11 Trustee fifty percent
(50%) of the gross revenue actually received by Netsphere for operation of the
pokerstar.com website (the “Additional Pokerstar Revenue
” and, together with the Old
Pokerstar Revenue, the “Combined Pokerstar Revenue
”), such remittance to be made by
wire transfer in accordance with the Cash Payment Instructions (with the first such
payment covering the period July 1, 2010, through the Transfer Date). The Chapter 11
Trustee agrees to hold the Combined Pokerstar Revenue in escrow until the earlier of, as
applicable: (i) the date of the Settlement Date, in which event the Chapter 11 Trustee shall
pay the Combined Pokerstar Revenue to the Village Trust in accordance with the wire
instructions provided by Craig Capua to Raymond J. Urbanik by email dated June 7,
2010, as may be updated with written notice from the Village Trust to the Chapter 11
Trustee at least thirty (30) days prior to any date on which payment is due (ii) the date the
Bankruptcy Court fails to approve the Final Settlement Order, in which event the Chapter
11 Trustee shall pay the Combined Pokerstar Revenue to Netsphere within three (3) days
of such disapproval in accordance with the wire instructions provided by Ravi Puri to
Raymond J. Urbanik by email dated June 7, 2010, as may be updated with written notice
from Netsphere to the Chapter 11 Trustee at least thirty (30) days prior to any date on
which payment is due (the “Pokerstar Payment Instructions
”) or (iii) the fourth (4
th
) day
after the date the Chapter 11 Trustee receives written notice from Netsphere that any of
the Parties failed to perform any of the material provisions of this Agreement, identified
with specificity, in the event such failure is not cured within three (3) days after the date
of such notice, in which event the Chapter 11 Trustee shall pay the Combined Pokerstar
Revenue to Netsphere in accordance with the Pokerstar Payment Instructions.
Notwithstanding the foregoing, such return of the Combined Pokerstar Revenue shall not
operate to recharacterize the legal ownership of the funds nor be a waiver by any Party of
any claim to such funds.
C. The Village Trust hereby agrees to pay the Chapter 11 Trustee Four Hundred Fifty
Thousand Dollars ($450,000) (the “Additional Pa
yment
”). The Additional Payment shall
be paid to the Chapter 11 Trustee by the Village Trust in the following manner: (i) One
Hundred Twenty-Five Thousand Dollars ($125,000) (the “Lump Sum Payment
”) shall be
paid to the Chapter 11 Trustee within ten (10) business days after the Settlement Date (the
“Additional Lump Sum Payment Due Date
”) in accordance with the wire instructions
provided by Raymond J. Urbanik to Craig Capua by email dated June 7, 2010, as may be
updated with written notice from the Village Trust to the Chapter 11 Trustee at least thirty
(30) days prior to any date on which payment is due (the “Lump Sum Payment
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Instructions
”); and (ii) thirty (30) days after the Additional Lump Sum Payment Due Date
(and continuing on the same day of each month thereafter until the Additional Payment
has been paid in full) (each a “Monthly Installment
”) , Fifty Thousand Dollars ($50,000)
shall be paid to the Chapter 11 Trustee as follows: (a) up to Eighteen Thousand Dollars
($18,000) per month paid by Netsphere directly to the Chapter 11 Trustee from the
revenue of Pokerstar if sufficient funds are available from fifty (50%) of the revenue owed
to the Village Trust as generated by pokerstar.com during the particular month the
payment is due; and (b) Thirty-Two Thousand Dollars ($32,000) per month from the
Trusts directly to the Chapter 11 Trustee from domain name monetization of the Blue
Horizon Portfolio and the Odd Group Portfolio (collectively, the “Portfolios
”). With
respect to the Monthly Installments being paid by the Trusts from the domain name
monetization of the Portfolios, each Monthly Installment shall be considered an advance
made to the Trustee for payment of administrative costs of the Estate and payment of
creditor claims. In the event there are surplus funds from such advances available in the
Estate after the payment of administrative costs and an eighty percent (80%) distribution
to general unsecured creditors of Ondova pursuant to a Plan of Reorganization, the
Chapter 11 Trustee shall return to the Trusts an amount equal to the surplusage. In no
other instance shall the Chapter 11 Trustee have any obligation to return any of such
advances. To secure the obligation of the Village Trust to the Chapter 11 Trustee with
respect to the Additional Payment, on the Settlement Date, (x) the Village Trust shall:
(i) grant the Chapter 11 Trustee a first lien security interest in the domain name
pokerstar.com, which is subordinate to the License Agreement attached as
Exhibit B
and which security interest shall be evidenced by a security agreement
(the “Pokerstar Security Agreement
”) in the exact form attached hereto as Exhibit
C; (y) the Village Trust and the Chapter 11 Trustee will each execute three (3)
partially executed originals of an escrow agreement in the exact form attached
hereto as Exhibit D
(the “Pokerstar Escrow Agreement”), which escrow
agreement shall name and be delivered to Gracy Title Company, 100 Congress
Avenue, Suite 100, Austin, Texas 78701 (Attn: Elizabeth Young) as “Escrow
Agent” for the purposes of holding and dealing with the assignment of the domain
name pokerstar.com; and (b) in connection with the Pokerstar Escrow Agreement,
the Village Trust shall execute and deliver an original of an assignment (the
“Pokerstar Assignment
”), which shall be in the exact form attached hereto as
Exhibit E
;
(ii) execute and deliver to the Chapter 11 Trustee prior to the Settlement Date a new
domain registration agreement with Ondova for each of the Portfolios (each a
“New Domain Name Registration Agreement
”) which, until the Additional
Payment has been paid in full, is non-cancelable without the prior written consent
of the Chapter 11 Trustee (which consent may be withheld, conditioned or
delayed in the sole discretion of the Chapter 11 Trustee), provides that (as
applicable), exclusive of the Disposed Names (as defined below) and Released
Names (as defined below), there shall be no change in monetization from
hitfarm.com and contains a provision that upon an Uncured Default (as defined
below), the Chapter 11 Trustee is authorized to immediately seek to be paid, and
hitfarm.com shall pay to the Chapter 11 Trustee promptly after receipt of a
Default Notice (as defined below), the revenue generated from the Portfolios by
hitfarm.com;
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EXECUTION VERSION
(iii) execute
and deliver to the Chapter 11 Trustee prior to the Settlement Date a new
monetization agreement with hitfarm.com for each of the Portfolios (each a “New
Monetization Agreement”) which, until the Additional Payment has been paid in
full, is non-cancelable without the prior written consent of the Chapter 11 Trustee
(which consent may be withheld, conditioned or delayed in the sole discretion of
the Chapter 11 Trustee), provides that there shall be no change in monetization
from hitfarm.com and contains hitfarm.com’s agreement, in accordance with the
revenue payment provisions of subsection (ii) above, to directly pay the Chapter
11 Trustee the revenue generated from the Portfolios by hitfarm.com from and
after receipt of the Default Notice; and
(iv) Grant the Chapter 11 Trustee a first lien security interest in the Blue Horizon
Portfolio, which security interest shall be evidenced by a security agreement (the
“Blue Horizon Security Agreement
”) in the exact form attached hereto as Exhibit
F.
In addition to the above, (i) the Trusts, Baron and each Party hereto which in any way has control
or ownership in the Blue Horizon Portfolio agree to execute an Agreed Order in the form attached
hereto as Exhibit G
providing that, upon an uncured payment default with respect to the
Additional Payment, it directs hitfarm.com and each other business used to monetize the domain
names in the Blue Horizon Portfolio to pay all monetization revenue earned thereon directly to
the Chapter 11 Trustee; and (ii) the Trusts and Baron agree to provide monthly reports to the
Trustee which state the name of the registrar and monetization company for the names in the
Portfolios, and the failure to do, or the report of an unauthorized registrar or monetization
company, shall constitute a material default in payment of the Additional Payment.
The Village Trust further agrees that, from and after the Settlement Date, the domain name
pokerstar.com will not be transferred, re-registered or otherwise conveyed without the prior
written consent of the Chapter 11 Trustee and, in such regard, the Trustee of the Village Trust
agrees to reasonably cooperate with the registrar of such name and counsel for the Chapter 11
Trustee to insure compliance with such agreement.
As used above, (i) “Disposed Names
” means names in the Blue Horizon Portfolio which are
reasonably determined by the Village Trust, and agreed in writing by the Chapter 11 Trustee, to
be of nominal value and/or, based on intellectual property claims or potential intellectual property
claims, to present significant or potentially significant liability to the owner thereof and, therefore
allowed to lapse; (ii) “Released Names
” means specific names in the Blue Horizon Portfolio
which are released in writing by the Chapter 11 Trustee in consideration for the Village Trust’s
payment of an amount equal to fifty percent (50%) of the greater of the (a) fair market value
thereof, as agreed in writing by the Village Trust and the Chapter 11 Trustee, or (b) the sales price
paid by a bona fide third party purchaser for value (provided, releases shall not be made if there
exists an Uncured Default, releases shall occur no more frequently than once per calendar month,
each release request shall be signed by the Village Trust, specify the name(s) requested to be
released, the fair market value and (if applicable) sale price of each name and the method of
valuation, and at no time shall the remaining value of the names in the Blue Horizon Portfolio be
less than an amount equal to one hundred fifty percent (150%) multiplied by a sum equal to the
then-outstanding unpaid Lump Sum Payment Monthly Installments); (iii) “Uncured Default
”
means a breach of any covenant or agreement by Village Trust pursuant to this Section 6, a New
Domain Name Registration Agreement or a New Monetization Agreement which is not cured
within fifteen (15) days of the date of the Chapter 11 Trustee’s notice thereof; and (iv) “Default
Notice” means a written notice delivered by the Chapter 11 Trustee which states that an Uncured
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Default exists and directs
payment of the revenue from the Portfolios to made to the Chapter 11
Trustee.
7. Domainjamboree.com and IDGenesis.com
.
A. As of the Settlement Date, each of the Manila Parties, the Manila Related Parties, the
Trustee of the MMSK Trust, Baron (except for the Belton Trust), the Interested Parties,
the USVI Parties, the Trusts, the Chapter 11 Trustee and Ondo
va (the “Domain Jamboree
Quitclaiming Parties”) quitclaim any interest to the domain name domainjamboree.com
and the ICANN Accredited registrar, Domain Jamboree, LLC (collectively “Domain
Jamboree”) to the Belton Trust and make an express quitclaim to the Belton Trust and
disavow all rights of every kind, nature and description, if any, they may have, or ever
had, in and to all rights related to Domain Jamboree, including, without limitation,
property rights, contract rights, copyright interests and any other intellectual property
interests, the value of goodwill, and the income that may be derived from Domain
Jamboree from and after the Settlement Date; provided, such excludes: (i) any website
that appeared on domainjamboree.com, (ii) any software associated with
domainjamboree.com, and (iii) any other content or intellectual property related to
Domain Jamboree, (collectively “Domain Jamboree Software
”). All rights granted, if any,
and the related abandonment of claims and interests in Domain Jamboree are irrevocable.
B. As of the Settlement Date, each of the Manila Parties (except for Netsphere), the Manila
Related Parti
es, the Trustee of the MMSK Trust, Baron, the Interested Parties, the USVI
Parties, the Trusts, the Chapter 11 Trustee and Ondova (the “ID Genesis Quitclaiming
Parties”) quitclaim any interest to the domain name idgenesis.com and the ICANN
Accredited registrar ID Genesis, LLC, (collectively “ID Genesis
”) to Netsphere, and make
an express quitclaim to Netsphere and disavow all rights of every kind, nature and
description, if any, they may have, or ever had, in and to all rights related to ID Genesis,
including, without limitation, property rights, contract rights, copyright interests and any
other intellectual property interests, the value of goodwill, and the income that may be
derived by ID Genesis from and after the Settlement Date. All rights granted, if any, and
related abandonment of claims and interests in ID Genesis shall be irrevocable.
8. Oversee Lawsuit.
A. As of the Settlement Date, each of the USVI Parties on behalf
of themselves and their
legal and beneficial owners (the “Oversee Lawsuit Assignors”)
hereby quitclaim all
rights, title and interest which may be held by the Oversee Lawsuit Assignors in the
claims and causes of action that are or could be asserted by the USVI Parties in the USVI
Oversee Lawsuit to Manila, and make an express quitclaim to Manila and disavow all
rights of every kind, nature and description, if any, they may have, or ever had, in
and to all proceeds derived from the USVI Oversee Lawsuit, including, without
limitation, any proceeds collected from a settlement or a judgment in the USVI
Oversee Lawsuit. All rights granted by the USVI Parties, if any, and related
abandonment of claims and interests in the USVI Oversee Lawsuit shall be irrevocable.
The Oversee Lawsuit Assignors represent that no oth
er Party has any interest in the USVI
Oversee Lawsuit. If any of the Manila Parties acquire an interest in Oversee’s claims
against Ondova, Baron or the Trusts, the Manila Parties and any of their assignees are
estopped from prosecuting such claims from and after the Settlement Date and such
claims are forever waived.
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Any proceeds derived from any counterclaims, rights of set-off, recoupment, remedies,
rights or defenses asserted by the Oversee Lawsuit Assignors in any case against Oversee
which are based upon the same subject matter as the affirmative claims and/or causes of
action of the Oversee Lawsuit Assignors in the USVI Oversee Lawsuit are hereby
quitclaimed and assigned by the Oversee Lawsuit Assignors to Manila.
B. The Oversee Lawsuit Assignors agree that the USVI
Oversee Lawsuit will be prosecuted
by the Oversee Lawsuit Assignors at the direction of Manila; provided, such agreement
does not constitute an assumption by Manila of any liability of the Oversee Lawsuit
Assignors and the Oversee Lawsuit Assignors remain liable for any cause(s) of action or
claim(s) that have been or may be brought by Oversee.
Furthermore, each Party, excluding Manila, the Estate and the Chapter 11 Trustee , but
includin
g Ondova, from and after the date of confirmation of the Ondova Plan if a Plan is
filed and confirmed by the Bankruptcy Court (the “Confirmation Date
”), agrees that if
Oversee grants it a general release for any and all claims Oversee has against it related to
the monetization of the Blue Horizon Portfolio and/or the Even Portfolio and/or the Odd
Portfolio domain names by Oversee, such Party shall give a reciprocal general release of
any and all claims it has against Oversee related to the monetization of the Blue Horizon
Portfolio and/or the Even Portfolio and/or the Odd Portfolio domain names by Oversee.
Notwithstanding the foregoing, each and every
Party (except for the USVI Parties)
specifically retains any and all of its own: (i) defenses, (ii) rights, (iii) remedies, (iv)
counterclaims, (v) rights of setoff, and (vi) recoupment which it may have in the event it is
in the future added as a party to any of the lawsuits involving Oversee or Oversee’s
assignee(s). Subject to Section 8.A. above, the USVI Parties specifically retain any and all
of their own: (a) defenses, (b) rights, (c) remedies, (d) counterclaims, (e) rights of setoff,
and (f) recoupment which they may have against Oversee or any Oversee assignee.
9. USVI Entities
. As of the Settlement Date, each of the Manila Parties, in partial consideration for
this Agreement, the Manila Related Parties, the Trustee of the MMSK Trust, Baron, the Interested
Parties, the Trusts, the Chapter 11 Trustee, the USVI Parties and Ondova agree that:
A. All capital accounts, other accounts, interest in, distributive shares of, and liquidations
shares of
USVI corporations, in or of Four Points are deemed by all Parties to stand at
Zero Dollars ($0.00), and all interest in, distributive shares of, and liquidations interests of
USVI corporations in Four Points are deemed by all Parties to be equal to zero percent
(0%);
B. In consideration of this Agreement, (i) each USVI co
rporation has, previously and as of
the Settlement Date, no interest in Four Points, (ii) any interest in Four Points owned by a
USVI corporation is hereby renounced, and (iii) each USVI corporation is discharged,
withdrawn and terminated as a limited partner, partner, associate or affiliate in or with
Four Points;
C. All present and past officers, directors, employees, agents and representatives of each of
USVI corporations are deem
ed to have, and are hereby, resigned and discharged from
their respective positions, roles and capacities; and
D. All Parties to this Agreement (except the USVI P
arties) quitclaim any and all interests in
or to Four Points and all USVI LLCs to Four Points.
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EXECUTION VERSION
10. Abatement and Dismissal of Existing Cases
. The Parties acknowledge that the California Case
is closed in that the dismissal was appealed but affirmed on June 3, 2009, by the appellate court
via Manila Industries Inc., et al. v. Ondova Limited Co. d/b/a Compana LLC, et al., No. 07-55232
(9th Cir. Ct. of Appeals), and any claims brought pursuant to such case are released pursuant to
this Agreement and the terms herein. In such regard, each of the Parties agrees, within two (2)
business days after the Transfer Date, to execute and deliver to Munsch Hardt Kopf & Harr, P.C.,
in escrow for filing, and it shall promptly file, Agreed Orders of Dismissal and/or Joint
Stipulations of Dismissal with Prejudice in the Texas Case, VI Case, Phonecards.com Case and
Dallas Federal Case in the exact form attached hereto as Exhibits H
, I, J and K, respectively.
11. Bankruptcy Court Approval
. This Agreement, and its validity, (i) is subject to the Bankruptcy
Court’s entry of the Final Settlement Order pursuant to Federal Rule of Bankruptcy Procedure
9019, and each of the Parties agrees to cooperate in obtaining the same through a motion seeking
such approval; (ii) is subject to the delivery of the Cash Payment to the Chapter 11 Trustee on or
before the Transfer Date (herein “Funding
”); and (iii) notwithstanding anything to the contrary
herein, shall not be binding on any of the Parties until the date of the Final Settlement Order and
Funding. As used herein:
A. “Final Settlement Order
” shall mean an order approving this Agreement: (1) as to which
the time to appeal, petition for certiorari, or move for reargument or rehearing has expired, and as
to which no appeal, petition for certiorari, stay or other proceeding for reargument or rehearing
has been sought or ordered; (2) as to which a timely appeal, petition for certiorari, stay,
reargument or rehearing thereof has been sought, but such request resulted in one of the
following: (a) the request has been withdrawn, (b) the relief requested has been denied, or (c) the
Bankruptcy Court’s order shall have been otherwise affirmed by the highest court to which such
order was appealed, or from which reargument or rehearing was sought, and no further timely
request for appeal, reargument or rehearing may be made; or (3) which the Parties unanimously
agree in writing, each in their own discretion, to rely upon following the Bankruptcy Court’s
entry of the order in question, notwithstanding any timely appeal, petition for certiorari, stay,
reargument or rehearing sought with respect to such order by any third party.
B. “Settlement Date
” shall mean the day after the date on which the Bankruptcy Court’s
order approving this Agreement becomes a Final Settlement Order.
C. Effectiveness.
For avoidance of doubt, nothing whatsoever contained in this Agreement
shall be binding on the Parties prior to the receipt by the Chapter 11 Trustee of the Cash Payment
from Manila; and any provisions of this Agreement which are effective or occur prior to receipt
of the Cash Payment are null and void if the Cash Payment is not received by the Chapter 11
Trustee.
12. Intellectual Property
.
A. The following shall be referred to as
the “Netsphere Software”: (a) domain names
registered by Netsphere and/or Krishan and/or their privacy service that are not currently
registered via Ondova, excluding the Remaining Allocated Names; (b) any search engine
software developed in whole or in part by any of the Manila Parties or Manila Related
Parties (hereinafter collectively referred to as the “Netsphere Parties
”), including, but not
limited to, the website, content and search engine software developed for
searchguide.com, (herein, the “Search Engine Software
”), (c) any software used to
identify domain names to register developed in whole or in part by any of the Netsphere
Parties (the “Registration Software
”); (d) any trademark filtering software developed in
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EXECUTION VERSION
whole or in part by
any of the Netsphere Parties (the “Filtering Software
”); (e) any
monetization/domain name parking software developed in whole or in part by any of the
Netsphere Parties; (f) the content of any and all websites developed in whole or in part by
any of the Netsphere Parties, including, but not limited to, Searchguide Software,
Pokerstar Software, and Domain Jamboree Software; and (g) all intellectual property
developed in whole or in part by any of the Netsphere Parties. Any software developed in
whole or in part by the Netsphere Parties belongs to Netsphere and is freely transferable
by Netsphere. It is explicitly agreed that any trademark filtering software or code
developed in whole or in part by any of the Netsphere Parties; any registration software or
code developed in whole or in part by any of the Netsphere Parties; any search engine
software or code developed in whole or in part by any of the Netsphere Parties; and any
monetization software or code developed in whole or in part by any of the Netsphere
Parties that is in any of the Netsphere Parties’ possession belongs to Netsphere and is
freely transferable by Netsphere.
B. Except as expressly provided in this Section 12, effective as of the Settlement
Date, each
of the Parties, including, but not limited to, the Netsphere Parties (except for Netsphere),
the Trustee of the MMSK Trust, the USVI Parties, the Interested Parties, the Trusts, the
Chapter 11 Trustee, Baron and Ondova (the “Netsphere Software Quitclaiming Parties
”)
hereby assigns, transfers, and sets over all of its rights, title and interest in the Netsphere
Software, expressly quitclaims to Netsphere, and disavows all rights of every kind, nature
and description, if any, they may have, or ever had, in and to the Netsphere Software and
all rights related thereto, including, without limitation, property rights, contract rights,
copyright interests and any other intellectual property interests, the value of goodwill, and
the income that may be derived from and after the Settlement Date with respect to the
Netsphere Software. All rights granted, if any, and all related abandonment of claims and
interests in Netsphere Software are irrevocable.
C. Each of Baron, Ondova, the Estate (provided,
with respect to the Estate, such
representation and warranty is limited to the actual knowledge of the Chapter 11 Trustee
and people working for the Estate at the direction of the Chapter 11 Trustee) and the
Netsphere Parties represent, warrant and agree to each other that Baron, Ondova and the
Estate do not have any software or code in their possession that was developed in whole
or in part by the Netsphere Parties. Each of Baron, Ondova and the Estate (provided, with
respect to the Estate, such representation and warranty is limited to the actual knowledge
of the Chapter 11 Trustee and people working for the Estate at the direction of the Chapter
11 Trustee) and the Netsphere Parties further represent, warrant and agree to each other
that the Netsphere Parties do not have any software or code developed solely by Baron,
Ondova or the Estate. Each of Baron, Ondova and the Estate (provided, with respect to
the Estate, such representation and warranty is limited to the actual knowledge of the
Chapter 11 Trustee and people working for the Estate at the direction of the Chapter 11
Trustee) and the Netsphere Parties represent and warrant to each other that: (i) DP
Communications has not utilized any software or code from Baron or Ondova in
connection with any software development or other work DP Communications did for the
Netsphere Parties and has not transferred any software or code from Baron or Ondova to
the Netsphere Parties; and (ii) DP Communications has not utilized any software or code
from the Netsphere Parties in connection with any software development or other work
DP Communications did for Baron or Ondova and has not transferred any software or
code from the Netsphere Parties to Baron or Ondova.
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D. Based upon the foregoing representations in Section 12.C., t
he Netsphere Parties agree
that anything in Ondova or Baron’s possession is owned by Baron and is freely
transferable by Baron. Further, the Netsphere Parties explicitly agree that any software or
code previously or currently used by Ondova in connection with the registration of
domain names, including, but not limited to, (i) any software or code used to fulfill the
registrar’s obligations under paragraph 3 of the ICANN Registrar Accreditation
Agreement, as may be amended from time to time (currently located at:
http://www.icann.org/en/registrars/ra-agreement-21may09-en.htm), (ii) any software or
code necessary to interact with a domain name registry (which may include the
acceptance or refund of a fee for the registration, transfer or renewal of a domain name);
(iii) any software or code to provide access to an administrator or domain name registrant
to update the WHOIS information, nameserver information and/or IP address information
for a domain name; (iv) drop-catching software or code; (v) software or code used to
identify domain names to register; and (vi) software or code that performs a search
function on an internal registrar database; and explicitly excluding any (a) monetization
software; (b) search engine-related software; (c) trademark filtering software; and (d)
domain parking or pay-per-click software (said exclusions do not invalidate the explicit
inclusions in (i)-(vi) and said inclusions will control over the exclusions in the event of
conflict between said inclusions and exclusions), is Baron’s and is freely transferable by
Baron. Any software solely developed by Baron and/or Ondova is freely transferable by
such Party, excluding any software that was developed in part by Netsphere.
E. As of the Settlement Date, each of Baron, Ondova, and the Estate hereby
assigns, transfers
and sets over all of his or its rights, title and interest in any software or code solely
developed by Baron and/or Ondova that is in the Netsphere Parties’ possession (the
“Netsphere Additional Software
”), expressly quitclaims to Netsphere and disavows all
rights of every kind, nature and description, if any, he or it may have, or ever had, in and
to the Netsphere Additional Software and all rights related thereto, including, without
limitation, property rights, contract rights, copyright interests and any other intellectual
property interests, the value of goodwill and the income that may be derived from and
after the Settlement Date with respect to the Netsphere Additional Software. All rights
granted, if any, and all related abandonment of claims and interests in Netsphere
Additional Software are irrevocable.
F. As of the Settlement Date, Netsphere grants to Jeffrey Baron, Ondova and the Trust LLCs
a non-exclusi
ve, non-transferable, royalty-free, worldwide license (the “Baron License
”)
to use and reproduce the Netsphere Software and make derivative works based on the
Netsphere Software that, as of the Settlement Date, is lawfully in Ondova or Baron’s
possession
and has not been obtained by any fraudulent or illegal means, in
violation of any state’s or federal law, or by hacking into or otherwise illegally
accessing Netsphere’s servers or computers without Netsphere’s express
permission, as determined by a court of competent jurisdiction by a final order
;
provided, the Baron License excludes any right to distribute, sell, rent, lease and/or license
or sublicense the Netsphere Software and/or derivative works based on the Netsphere
Software for a period of thirty-one and one-half (31.5) months commencing on the
Settlement Date. Upon expiration of the thirty-one and one-half (31.5) month period, the
foregoing license in this Section 12.F. becomes freely transferable in whole or in part and
shall then include the right to distribute copies. The foregoing license in this Section 12.F.
may be extended at Baron’s option to up to six (6) to-be-formed entities for Jeffrey Baron
provided that Netsphere receives prior written notice of any such prospective extension of
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the license along with a confirm
ation in writing under oath from Jeffrey Baron that the
ownership of the new licensee comports with the ownership requirements of this Section
12.F, and, with respect to three (3) of such entities, the name and place of formation of
such entities to receive the license, provided that the ownership of such entities shall be
either: (i) wholly owned by Jeffrey Baron; (ii) owned directly through one or more wholly
owned subsidiaries of (a) an entity wholly owned by Jeffrey Baron or a trust of which any
of the Trusts, Ondova, Jeffrey Baron or a third party (who has no direct or indirect, legal
or beneficial, interest whatsoever in Baron or any entity or trust of which Baron has any
direct or indirect, legal or beneficial, interest of any kind) are the settlor and Jeffrey Baron
is the sole primary beneficiary (such trust may have one or more contingent beneficiaries
so long as such beneficiaries are 501(c)(3) charities or beneficiaries that are contingent
upon the death of Jeffrey Baron) or (b) a wholly owned subsidiary of an entity wholly
owned by Jeffrey Baron or a trust of which any of the Trusts, Ondova, Jeffrey Baron or a
third party (who has no direct or indirect, legal or beneficial, interest whatsoever in Baron
or any entity or trust of which Baron has any direct or indirect, legal or beneficial, interest
of any kind) are the settlor and Jeffrey Baron is the sole primary beneficiary (such trust
may have one or more contingent beneficiaries so long as such beneficiaries are 501(c)(3)
charities or beneficiaries that are contingent upon the death of Jeffrey Baron); or (iii)
identical to the current ownership of Ondova or the Trust LLCs. During the thirty-one and
one-half (31.5) month period commencing on the Settlement Date, any change in the
current ownership of Ondova, the Trust LLCs or in the initial ownership of the to-be-
formed entities shall be a sale or transfer in material breach of the license granted to that
entity in this Section 12.F and shall result in termination of that license (only with respect
to the entity in breach), except where the change in ownership comports with (i)-(iii) in
this Section 12.F, as confirmed in writing under oath by Jeffrey Baron. To the extent an
entity granted a license under this Section 12.F terminates the license prior to a change in
its ownership, the change in ownership shall not be a material breach of the license (the
Parties acknowledge and agree that any entity that has terminated its license under Section
12.F has done so permanently and cannot obtain another such license).
G. As of the Settlement Date, Netsphere grants to Jeffrey Baron, Ondova and the Trust LLCs
a non-exclusive, transferable, roy
alty-free, worldwide license to use, reproduce, and
distribute copies of the Netsphere Additional Software and make derivative works based
on the Netsphere Additional Software.
13. Phonecards Settlement
.
A. In order to resolve the claims in the Phonecards.com
Case, the Parties agree that: (i)
CC.com shall retain its fifty percent (50%) ownership interest in the domain name
phonecards.com (the “CC Interest
”) until the second anniversary of the Transfer Date (the
“Anniversary Date
”); and (ii) effective as of the first day following the Anniversary Date
and continuing for a period of sixty (60) days thereafter (the “Option Period
”), Equity
Trust shall have the option (“Option
”) to purchase the CC Interest for Ten Thousand
Dollars ($10,000.00) (the “PC Purchase Price
”). In the event Equity Trust desires to
purchase the CC Interest, Equity Trust shall exercise the Option by delivering written
notice to CC.com (the “Notice
”) of Equity Trust’s exercise of the Option and a wire
transfer of the PC Purchase Price in accordance with the wire instructions provided by
Ravi Puri to Eric Taube, Craig Capua and Elizabeth Schurig by email dated June 7, 2010,
as may be updated with written notice from CC.com to Jeffrey Baron (via the email
address provided by email from Gary Lyon to Ravi Puri on June 22, 2010) at least thirty
(30) days prior to any date on which payment is due (the “Phonecards Payment
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EXECUTION VERSION
Instructions
”), on or before 5:00 p.m., Dallas, Texas, time on the last day of the Option
Period. In the event Equity Trust exercises the Option by timely delivery of the Notice
and payment of the PC Purchase Price, CC.com shall promptly deliver to Equity Trust an
assignment of the CC Interest in substantially the form attached hereto as Exhibit L
.
Time is of the essence with respect to the Option and, in the event Equity Trust fails to
timely deliver the Notice and pay the PC Purchase Price, effective immediately upon
expiration of the Option Period, the Option shall lapse and be of no further and effect and
Equity Trust shall have no right to purchase the CC Interest.
B. CC.com is aware that Equity Trust hired Speedypin in August 2009 to operate the
phonecards.com website
and that Equity Trust is not operating the phonecards.com
website. Equity Trust shall (i) provide CC.com with the login username and password for
the phonecards.com account(s) with Speedypin within five (5) business days after the date
the 9019 motion is filed with the Bankruptcy Court (the “9019 Filing Date
”), and (ii)
notify CC.com of any updates to such login username an password within five (5)
business days of any change. Equity Trust shall further pay and deliver to CC.com fifty
percent (50%) of the revenue for phonecards.com and supporting documentation for such
revenue (which documentation is available via speedypin.com’s website as of the date of
this Agreement) (collectively, the “PC Items
”) on a monthly basis commencing on the
9019 Filing Date and continuing through the Option Period until such time as CC.com no
longer retains its CC Interest. Equity Trust shall use its best efforts to have Speedypin, or
any other such operator of phonecards.com, within two (2) months of the 9019 Filing
Date, (a) send any outstanding and future PC Items directly to CC.com, and (b) on the
same day any revenue is sent to Equity Trust, deliver such revenue to CC.com pursuant to
the Phonecards Payment Instructions (or by check to CC.com at 9821 Katy Freeway,
Suite 101, Houston, TX 77024). If Speedypin, or any other such operator of
phonecards.com, does not agree to send CC.com any of the PC Items within two (2)
months of the 9019 Filing Date, the obligations shall remain with Equity Trust to do so by
the fifth (5
th
) business day of each month, with revenue to be paid pursuant to the
Phonecards Payment Instructions. The Parties agree that this Agreement (including the
releases contained herein) does not replace any existing or future continuing obligations
that may exist, if any, under the terminated phonecards.com agreement that was effective
as of August 1, 2001 (“Phonecards.com Agreement”), including, but not limited to, the
last sentence of paragraph 9 of the Phonecards.com Agreement. Equity Trust and CC.com
will submit an order to the 68
th
District Court directing CC.com to provide certain
information from the Phonecards.com database to Equity Trust. Compliance with that
order will be in full satisfaction of any of CC.com’s obligations under paragraph 9 of the
Phonecards.com Agreement to produce or provide information from the even numbered
records in the Phonecards.com database.
14. Proofs of Claim
. As consideration for this Agreement, including, without limitation, the
cooperation of the Chapter 11 Trustee, any and all proofs of claim filed in the Bankruptcy Case
by the Parties hereto or debts listed in Ondova’s bankruptcy schedules are hereby waived and
withdrawn as of the Settlement Date. Upon the request of the Chapter 11 Trustee, each Party
agrees to promptly execute and deliver to the Chapter 11 Trustee a release of proof of claim form
or other appropriate document evidencing the withdrawal of such Party’s proof of claim.
15. Mutual General Release
.
A. As part of the consideration for the promi
ses exchanged herein, from the beginning of
time to the date of the Final Settlement Order, except as specifically provided herein
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EXECUTION VERSION
regarding the
enforcement of this Agreement, each Party and its respective heirs, family
members, executors, divisions, affiliates, subsidiaries, parents, branches, predecessors,
successors, assigns, and, with respect to such persons, their past, present and future
officers, directors, managers, trustees, employees, servants, agents, shareholders,
members, investors, administrators, general or limited partners, representatives, insurers,
fiduciaries, advisors, attorneys, affiliates, and other agents fully, completely,
unconditionally and forever, RELEASES and DISCHARGES each other Party and its
respective heirs, family members, executors, divisions, affiliates, subsidiaries, parents,
branches, predecessors, successors, assigns, and, with respect to such persons and
individuals (inclusive of any and all capacities, including, without limitation, professional,
fiduciary, representational, individual and personal) their past, present and future officers,
directors, managers, trustees, employees, servants, agents, shareholders, members,
investors, administrators, general or limited partners, representatives, insurers, fiduciaries,
advisors, attorneys, affiliates, and other agents, from any and all agreements,
compensation, complaints, controversies, costs, damages, debts, demands, expenses,
grievances, losses of service, promises, claims, causes of action, rights, remedies, duties,
obligations, actions, omissions, loss, or liability whatsoever, whether known or unknown,
directly or indirectly arising from or out of, growing out of, based upon, in whole or in
part, or attributable to, events, acts or omissions occurring in whole or part from the
beginning of time through to the date of the Final Settlement Order, regardless of whether
any such claims or causes of action have yet accrued.
B. Further, notwithstanding that no Party intends to release
its own attorneys as a result of
the releases set forth in this Section 15, because and to the extent that Baron, Ondova, the
Trusts, Domain Jamboree Parties and/or any of their affiliated entities (collectively, the
“Baron Parties
”) claim, or have claimed in the past, that certain opposing attorneys have
also allegedly acted as his, her, its or their legal counsel, agent or representative in any
other capacity, which allegations are understood by all of the undersigned as disputed fact
issues to be compromised by this Agreement, the Baron Parties and all other Parties state,
represent and agree that each of the following have never been attorneys, agents or
representatives of, or represented in any professional capacity, the Baron Parties for any
purpose and are receiving complete releases in any and all capacities, including, without
limitation, professional, fiduciary, representational, individual and personal: John
MacPete, Paul Storm, any attorneys at Storm LLP, Dean Hinderliter, any attorneys at
Locke, Liddell & Sapp, LLP, any attorneys at Locke Lord Bissell & Liddell, LLP, A.J.
Stone, any attorneys at Bolt & Nagi, Frank Perry, any attorneys at Payne & Blanchard,
Denis Kleinfeld, any attorneys at The Kleinfeld Firm, any attorneys at Rothstein,
Rosenfeld & Adler, Melissa Hayward, any attorneys at Flynn, Skierski, Lovell &
Hayward, Ravi Puri, Sharon Hotchkiss, Daniel J. Sherman, any attorneys at Sherman &
Yaquinto, Raymond J. Urbanik and any attorneys at Munsch Hardt Kopf & Harr, P.C.
Further, and to the same effect, the Manila Parties state, represent and agree that each of
the following have never been attorneys, agents or representatives or represented in any
professional capacity the Manila Parties for any purpose and are receiving complete
releases in any and all capacities, including, without limitation, professional, fiduciary
representational, individual and personal: West & Associates, LLP, Craig Capua,
Hohmann, Taube & Summers, LLP, Eric Taube, Raymond J. Urbanik, M’Lou Patton
Bell, Munsch Hardt Kopf & Harr P.C., Jeff Hall, Gerrit Pronske, Pronske Patel, LLC,
John M. Cone and Hitchcock Everet, LLP. Additionally, and to the same effect, Baron,
Ondova and the Domain Jamboree Parties state, represent and agree that each of the
following have never been attorneys, agents or representatives or represented in any
professional capacity Baron, Ondova and/or the Domain Jamboree Parties for any purpose
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EXECUTION VERSION
and are receiving com
plete releases in any and all capacities, including, without
limitation, professional, fiduciary representational, individual and personal: West &
Associates, LLP, Craig Capua, Hohmann, Taube & Summers, LLP, Eric Taube, John M.
Cone and Hitchcock Everet, LLP.
C. The Manila Parties hereby RELEASE and DISCHARGE Rosh Alger, Tom Bolt &
Associat
es, Adrian Taylor, Asiatrust Limited as Trustee for the MMSK Trust, Elizabeth
Schurig and her past and present firms in any and all capacities from the beginning of time
to the date of the Final Settlement Order, regardless of whether such claims or causes of
action has yet accrued, notwithstanding any allegations of fact that at some point Rosh
Alger, Tom Bolt & Associates, Adrian Taylor, Asiatrust Limited as Trustee for the
MMSK Trust, Elizabeth Schurig and her past or present firms may have served as
attorneys for the Manila Parties.
D. Baron, Ondova and the Domain Jamboree Parties hereby
RELEASE and DISCHARGE
Rosh Alger, Tom Bolt & Associates, Adrian Taylor, Asiatrust Limited as Trustee for the
Village Trust, Elizabeth Schurig and her past and present firms in any and all capacities
from the beginning of time to the date of the Final Settlement Order, regardless of whether
such claims or causes of action has yet accrued, notwithstanding any allegations of fact
that at some point Rosh Alger, Tom Bolt & Associates, Adrian Taylor, Asiatrust Limited
as Trustee for the Village Trust, Elizabeth Schurig and her past or present firms may have
served as attorneys for Baron, Ondova and/or the Domain Jamboree Parties.
E. Each releasing Party does specifically waive any
claim or right to assert any cause of
action or alleged cause of action or claim or demand which has, through oversight or
error, intentionally or unintentionally or through a mutual mistake, been omitted from this
Release and which is based in whole or in part on any act or omission occurring from the
beginning of time to the date of the Final Settlement Order, regardless of whether such
claim or cause of action has yet accrued.
F. The foregoing provisions notwithstanding, all Parties represent, agree and confirm
to the
other Parties that they have no reason to believe any other third party (that is not a
signatory hereunder) has any right, ownership, claim and/or other interest in and to any of
the items discussed in this Agreement. Accordingly, each Party to this Agreement
represents to each other Party that all necessary parties to effectuate this Agreement with
respect to the signing Party have agreed to the terms of this Agreement and have signed
(or granted authority in writing to be signed on their behalf) this Agreement. The
foregoing representations are material representations, and any breach of such
representations shall be a material breach of this Agreement.
G. For avoidance of doubt, the releases given herein by
the Chapter 11 Trustee are made
solely in his capacity as trustee for Ondova. Additionally, notwithstanding any provision
of this Agreement to the contrary, nothing contained herein shall, in any way limit,
reduce, waive, impair or otherwise restrict any and all other claims the Chapter 11 Trustee
may have against persons or entities which are not Parties to this Agreement, all of which
such rights and claims are specifically reserved.
16. Delivery of Tax Documents
. On or before the Settlement Date, the Village Trust shall deliver
the following tax documents to Manila, and Manila shall have no obligation to make the Cash
Payment or to execute and deliver Exhibit A
until such documents are delivered to Manila:
Internal Revenue Service Form W-8IMY executed by the Village Trust and Form W-9 executed
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EXECUTION VERSION
by
each beneficial owner of the Village Trust. Within five (5) days after the Settlement Date, the
USVI Entities shall deliver the 2006, 2007, 2008, 2009, and 2010 tax filings for each of the USVI
corporations to Manila and the Village Trust, including all notices and other communication
received by the USVI Entities, or on behalf of the USVI Entities, from governmental agencies
related thereto, and all correspondence responding to the same. Manila agrees that it will issue or
cause to be issued a Form 1099 or Schedule K-1 to the Village Trust, and not to Jeffrey Baron, in
connection with the Cash Payment, the Deferred Payment and the amount of the Combined
Pokerstar Revenue that is wired to the Village Trust or at the direction of the Village Trust.
Netsphere agrees that it will issue or cause to be issued a Form 1099 or Schedule K-1 to the
Licensor identified in the License Agreement in connection with payments made pursuant to the
License Agreement. The Baron Parties agree that there shall be no income attributable to the
MMSK Trust as a result of the payments required to be made under this Agreement; and no Party
shall issue or cause to be issued a Form 1099 or Schedule K-1 to the MMSK Trust, the Manila
Parties, and/or the Manila Related Parties in connection with such payments. Except as otherwise
provided in this Agreement, no Form 1099 or Schedule K-1 (or other tax form reporting an
amount of taxable income to another Party) shall be issued by any Party to the other Parties for
2009 and prior tax years (or for 2010 and subsequent years, except with the consent or agreement
of the recipient) or as required by a final settlement or closing agreement entered into with the
United States Internal Revenue Service or any United States state or local taxing authority.
17. Dauben Disclaimer
. Joey Dauben, on behalf of himself, Dauben, Inc., d/b/a Texas International
Property Associates and Privacy Protection Services, Inc., d/b/a Oakwood Services, Inc., and his
and their respective affiliates, has executed and delivered to the Parties a disclaimer of interest in
substantially the form (exclusive of exhibit reference) attached hereto as Exhibit M
.
18. Representations and Warranties
. Each Party makes the following representations and
warranties to each other Party, which representations and warranties shall survive the execution
of this Agreement:
A. Such Party has either been, or has had the reaso
nable opportunity to be, adequately
represented by independent and competent legal counsel of his, her or its own choosing in
connection with the negotiation and execution of this Agreement and in any and all
matters whatsoever relating or appertaining hereto;
B. In executing this Agreement, such Party has relied upon
his, her, or its own judgment
and/or upon the advice of his, her, or its own personal attorneys; that he, she, or it has not
been induced to sign or execute this Agreement by any promises, agreements, or
representations whatsoever which are not expressly stated herein; and that he, she, or it
has freely and willingly executed this Agreement and expressly denies and disclaims any
reliance upon any facts, promises, undertakings, or representations made by any other
Party or any other Party’s legal representatives, agents or advisors at any time prior to and
through the Settlement Date;
C. Such Party considers the terms of the Agreement
to be fair and reasonable and not
unconscionable in whole or in part, and such Party’s consent to this Agreement was not
procured, obtained, or induced in any way or manner by mistake, fraud, improper conduct,
or undue influence;
D. After investigation and consultation with his, her, or its own attorney
s, if any, such Party
agrees that this Agreement is satisfactory and is fully supported by good, valid, and
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EXECUTION VERSION
adequate consideration for all obligations, perform
ance and promises to perform herein,
the receipt of which is expressly acknowledged by such Party;
E. Such Party understands and agrees to all ter
ms, provisions and conditions of this
Agreement;
F. Such Party has the requisite legal authority, capacity
, and consent to execute this
Agreement, and this Agreement is binding upon such Party acting in the legal capacity or
capacities herein stated;
G. Such Party represents and warrants that in executing this Agree
ment, it, he or she is not
relying on any representation or warranty other than that which is specifically set forth in
writing in this Agreement;
H. Since the date of commencement of the Dallas
Federal Case, such Party has not
transferred or assigned any interest in any of its, his or her interest in any claim or
property interest affected by this Agreement (except for domain names identified in the
monthly reports required by February 8, 2010, Order Regarding Transparency in the
Transfer and Deletion of Domain Names by the Court in the Dallas Federal Case);
I. Since the commencement of the Dallas Federal Case, such Party has not transferred or
assigned all
or any portion in any of its, his or her interest in any claims or causes of
action that such Party may have against any other Party to this Agreement (except to his
or its attorneys in consideration for attorneys’ fees);
J. Each of the Parties hereto represents and warrants to e
ach other Party that at no time after
December 30, 2005, did Ondova or the Estate (i) own any interest, legally or beneficially
(including, without limitation, domain names), in the Blue Horizon Portfolio, the Odd
Group Portfolio or the Even Group Portfolio; or (ii) sell, assign, transfer or otherwise
exercise a remedy available to Ondova or the Estate with respect to the Blue Horizon
Portfolio, the Odd Group Portfolio or the Even Group Portfolio; and
K. Each of the Parties hereto represents and warrants to each other Party
that the USVI deal
was not consummated.
L. As of the date of the filing of the 9019 motion in the Bankruptcy Court, each of the
Trustee of the Village Tru
st and the Trustee of the MMSK Trust represent and warrant
that all beneficiaries of such trusts are Parties to this Agreement or that the beneficiaries
of such trusts that are Parties to this Agreement have the legal capacity to sign on behalf
of the other beneficiaries of such trusts.
M. As of the date of the filing of the 9019 motion in the Bankruptcy Court, Baron represents
and warrants that all beneficiaries of
The Village Trust, Equity Trust Company IRA
19471, the Daystar Trust, and the Belton Trust are signing this Agreement or that he has
the legal capacity to sign on behalf of the other beneficiaries of such trusts and IRAs.
N. As of the date of the filing of the 9019 motion in the Bankruptcy Court, each of Munish
Krishan and
Seema Krishan represent and warrant that all beneficiaries of The MMSK
Trust are signing this Agreement or that he or she, as applicable, has the legal capacity to
sign on behalf of the other beneficiaries of The MMSK Trust.
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19. Requested Findings
. The Parties agree to seek Bankruptcy Court approval in the order
approving this Agreement for the following findings (“Findings
”):
A. That in December 2005 Jeffrey Baron, directly or indirectly
through entities owned or
controlled by Jeffrey Baron, intended to transfer any domain name he or they owned to
the Village Trust and such intention to transfer was not conditional on whether or not the
USVI deal was consummated.
B. That Jeffrey Baron has not been the moving force behind monetization of the domain
nam
es in the “Odd Group Portfolio” since at least July 17, 2009.
C. That Jeffrey Baron has not been the moving force behind monetization of the domain
nam
es in the Blue Horizon Portfolio since at least April 25, 2009.
D. That neither Jeffrey Baron nor Ondova Li
mited Company have been listed as the
registrant of record for, or been the licensee of the listed registrant of record for, or holder
of record title to or in, the domain names in the Odd Group Portfolio.
The Parties acknowledge and understand that the Findings may not be approved by the
Bankruptcy Court. Since the Findings are not required, the Findings are not material to this
Agreement and the remaining terms of the Agreement are: (i) not affected; (ii) fully enforceable,
and (iii) shall be fully performed as required by this Agreement.
20. Taxes
.
A. After the Transfer Date, upon the reasonable request of any Party, each other Party shall
cooperate in
all reasonable respects in preparing for any audits of, or disputes with, taxing
authorities regarding any tax returns concerning the matters addressed in this Agreement.
Each Party shall be solely responsible for paying any taxes or penalties assessed against
them and, further, shall be responsible for all of its attorney fees and costs associated
therewith. The mutual general releases provided for in this Agreement include a release
of any claims for contribution or indemnity or monetary damages related to any taxes or
any penalties assessed against any Party. Subject to the agreement of the Parties set forth
in Section 20.A. hereof, each Party is free to take the tax position of its choosing and is
solely responsible for any consequences resulting from any such position taken.
B. The Parties agree that unanimous consent of Newco LLC (as defined below), Quantec
LLC, Iguana Consulting
LLC, and Novo Point LLC is required to engage in any
discussions with the USVI BIR concerning the tax liability of Quantec, Inc., Iguana
Consulting, Inc. or Novo Point, Inc., for taxable years beginning on or after January 1,
2006. The Parties further agree that:
(i) The Parties, as applicable, rescind any purported assignment of shares in the
USVI
corporations from MMSK Trust to the existing Trust LLCs and any
purported ownership interest in the existing Trust LLCs issued to MMSK Trust,
and such Parties further agree to treat such assignment and issuance as having
never occurred;
(ii) The Parties agree that the Manila Related Parties have never had any
ownership
interest in any of the Trust LLCs;
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(iii) On or before July 12, 2010, the Trustee of the MMSK Trust agrees to form
a new
Cook Islands LLC (“Newco LLC
”) owned by the MMSK Trust to hold the
MMSK Trust’s and Manila Related Parties’ shares of Quantec, Inc. and Iguana
Consulting, Inc; the Trustee of the MMSK Trust, Quantec LLC and Iguana
Consulting LLC agree to execute Exhibit N
acknowledging the
rescission/quitclaim of Quantec LLC’s and Iguana Consulting LLC’s purported
ownership of the MMSK Trust’s shares of Quantec, Inc. and Iguana Consulting,
Inc. and the MMSK Trust’s purported ownership interest in Quantec LLC and
Iguana Consulting LLC; the Trustee of the MMSK Trust agrees to execute
Exhibit O
assigning the MMSK Trust’s shares of Quantec, Inc. and Iguana
Consulting, Inc. to Newco LLC; and the Manila Related Parties agree to execute
Exhibit P
assigning the Manila Related Parties’ shares of Quantec, Inc. and
Iguana Consulting, Inc. to Newco LLC;
(iv) The current Protector of the MMSK Trust shall appoint Cook Islands Trust
Protectors Limited as
successor Protector of the MMSK Trust and resign as
Protector of the MMSK Trust in the exact form attached hereto as Exhibit P
(which has been executed and delivered to the attorney for the Trust LLCs by the
Protector via an email dated June 21, 2010, from Bernard Haissly to Craig
Capua). Within five (5) business days of the Settlement Date, the Trust LLCs
agree to: (i) take care of any outstanding fee owed to the Protector of the MMSK
Trust (the Protector has represented the amount of its full and final fee in an
email dated June 21, 2010, from Bernard Haissly to Craig Capua and Ravi Puri)
(Gerrit Pronske is personally contributing $10,000 to the Trust LLCs towards this
payment) and the Manila Parties agree that they will not authorize the Protector
to incur any further fees, expenses or costs for the MMSK Trust (which
authorization is required pursuant to the email dated June 21, 2010 from Bernard
Haissly to Craig Capua and Ravi Puri in order for fees to go above $20,000 in
total)(Craig Capua has also agreed in an email dated June 21, 2010 to Gerrit
Pronske and Ravi Puri not to authorize the Protector to incur any further fees,
expenses or costs for the MMSK Trust); and within five (5) business days of the
Settlement Date, the Trustee of the MMSK Trust agrees to: (ii) forward to the
Manila Parties a valid resignation from PN Management Limited as the Protector
of the MMSK Trust in the form attached as Exhibit Q
(exclusive of the exhibit
reference) (that has been executed by Bernard Haissly on behalf of the current
Protector of the MMSK Trust); and
(v) Within five (5) business days of the completion of actions in clause (iii) above,
(a) Asiatrust
Limited shall resign as Trustee of the MMSK Trust by executing
and delivering a resignation and appointment of successor notice in the exact
form attached hereto as Exhibit R
(exclusive of the exhibit reference, and (b) the
Protector of the MMSK Trust shall appoint Global Consultants and Services
(Cook Islands) Limited as successor Trustee of the MMSK Trust.
21. Jurisdiction
. The United States Bankruptcy Court for the Northern District of Texas (Dallas
Division) shall have the exclusive jurisdiction over all
disputes and/or matters whatsoever related
to this Agreement, which involve the Estate as a party or that may directly or indirectly impact
the Estate or any interest in property (within the meaning of title 11 of the United States Code, 11
U.S.C. §§ 101 et seq. (the ”Bankruptcy Code
”)) held by the Estate or the Chapter 11 Trustee (as
trustee for Ondova). Subject to the foregoing, the United States District Court for the Northern
District of Texas, The Honorable Royal Furgeson, shall have jurisdiction over any and all other
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EXECUTION VERSION
disputes and/or m
atters related to this Agreement, whether related to its consummation,
implementation, enforcement or otherwise. In the event that the Honorable Royal Furgeson is not
available to hear a case related to this Agreement, then any other judge of the United States
District Court for the Northern District of Texas shall have jurisdiction over such case.
22. Choice of Law
. This Agreement shall be governed by and construed in accordance with
applicable federal bankruptcy law, 11 U.S.C. §101 et seq., and the laws of the State of Texas,
without regard to its conflicts of law principles.
23. Attorneys’ Fees and Costs
. In each of the Underlying Cases, each of the Parties shall bear its
own respective attorneys’ fees and costs. In the event of a dispute, the prevailing Party in any
action to enforce this Agreement shall be entitled to reasonable attorneys’ fees and costs of
litigation.
24. Binding Agreement
. The Parties agree that this Agreement, inclusive of the Recitals in Article 1
hereof, is a totally binding agreement which may not be altered by any Party without the written
consent of all other Parties and will be in effect for all times, unless otherwise provided herein.
This Agreement shall inure to the benefit of, and shall be binding upon the Parties hereto, and
their respective heirs, distributees, beneficiaries, executors, administrators, successors, and
assigns.
25. Ondova Plan /Claims Objections
. Prior to the hearing on the motion to approve this
Agreement, the Chapter 11 Trustee intends to file the Ondova Plan, if feasible, to provide for,
inter alia, payment of claims of creditors of Ondova. With respect to proofs of claim and other
obligations of Ondova, the Chapter 11 Trustee agrees to allow the Daystar Trust to review and
object to claims (but only in an amount in excess of $10,000). The Chapter 11 Trustee reserves
the right to comment and/or oppose any objections to claims filed by the Daystar Trust. The
Chapter 11 Trustee does not object to Jeffrey Baron filing a competing reorganization plan and/or
liquidation plan for Ondova. Prior to filing the Ondova Plan, the Trustee agrees to meet with
Jeffrey Baron to confer regarding the Ondova Plan.
26. Claims for Breach of this Agreement Not Released
. IT IS EXPRESSLY UNDERSTOOD
AND AGREED AMONG THE PARTIES TO THIS AGREEMENT THAT THE TERMS
OF THIS AGREEMENT RELEASING AND DISCHARGING THE PARTIES ARE NOT
INTENDED TO RELATE TO, AND NONE OF THE PARTIES ARE RELEASING ANY
OTHER PARTY FROM, ANY CLAIM WHICH MAY HEREAFTER ACCRUE WHICH
IS BASED SOLELY UPON FACTS OCCURRING AFTER THE SETTLEMENT DATE
AND WHICH SOLELY RELATES TO OR ARISES DIRECTLY FROM OR OUT OF A
BREACH OF THIS AGREEMENT ITSELF. THIS SECTION 26 IS NOT INTENDED TO
LIMIT THE PROSPECTIVE RELEASE (WHICH IS SET FORTH IN SECTION 15) FOR
CLAIMS WHICH ARE BASED IN WHOLE OR IN PART ON FACTS OCCURRING
PRIOR TO THE EFFECTIVE DATE.
27. Waivers
. No waiver of any of the terms or provisions hereof shall be valid unless in writing and
signed by all Parties. No waiver of default of any provision hereof shall be deemed a waiver of
any subsequent breach or default of the same or similar nature.
28. Reviewed by Counsel
. By execution hereof, each of the Parties acknowledges and agrees that
this Agreement has been prepared and/or reviewed by the respective Parties and/or by the
attorneys for each of the Parties.
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29. Entire Agreement
. Each Party hereto acknowledges that he, she, or it has carefully read this
Agreement, including all documents or Exhibits that it incorporates and/or refers to, and that this
Agreement expresses the entire agreement among the Parties concerning the subject matters it
purports to cover; and that each Party has executed this Agreement freely and of his, her, or its
own accord. No Party is relying on any oral representation or any other representation not set
forth in writing in this Agreement. This Agreement supersedes all other agreements, whether
written or oral, between the Parties relating to the subject matter hereof.
30. Multiple Counterparts
. This Agreement may be executed in multiple counterparts, each of
which shall be of equal rank. The execution of one counterpart by a Party shall be deemed the
execution of all counterparts by such Party.
31. Injunctive Relief
. The Parties agree that monetary damages alone may not be adequate
recompense for any breach of this Agreement. In the event any Party breaches any of the terms,
conditions, covenants, obligations, responsibilities or warranties placed upon such Party in this
Agreement, then any other Party may seek only the remedies of specific performance and/or
injunctive relief (whether mandatory or by restraint) and/or monetary damages, and if such Party
is successful, then the Party breaching this Agreement agrees to pay all of the prevailing parties’
reasonable attorneys’ fees and costs of litigation in addition to any monetary damages awarded, if
any. The Parties agree that the Pokerstar.com License Agreement provides for its own remedies
and that the remedies available in this Agreement are not available under the Pokerstar.com
License Agreement unless otherwise agreed upon in writing
32. Time of Essence
. Time is of the essence in performing the provisions of this Agreement.
33. Survival
. The agreements, representations, and warranties set forth in this Agreement shall
survive the execution hereof. If any term or provision of this Agreement shall be held to be
invalid or unenforceable for any reason, such term or provision shall be ineffective to the extent
of such invalidity or unenforceability without invalidating the remaining terms and provisions
hereof. This Agreement shall be construed as if such invalid or unenforceable term or provision
had not been contained herein, provided, however, that the foregoing shall in no way be
interpreted or construed to affect the enforceability of the release provisions of this Agreement.
This Agreement has been duly authorized and constitutes a legal, valid, and binding obligation of
each Party hereto and is enforceable against each of them in accordance with its terms.
34. Notice
. Any notices required by this Agreement shall be sufficiently given only if in writing and
delivered personally or by a nationally recognized courier service, or mailed by prepaid registered
mail addressed to the party for whom it is intended, at the address noted below, provided that any
Party may notify the other Parties in writing of a change in such Party’s address for the purposes
hereof:
If to Baron:
Jeffrey Baron
P. O. Box 111501
Carrollton, Texas 75011
and
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EXECUTION VERSION
Gerrit Pronske
Pronske & Patel
2200
Ross Avenue, Suite 5350
Dallas, Texas 75201
If to Ondova: Daniel J. Sherman, Trustee
509 N. Montclair Avenue
Dallas, Texas 75208
and
Raymond J. Urbanik
Munsch Hardt Kopf & Harr, P.C.
500 North Akard Street
Suite 3800
Dallas, Texas 75201-6659
If to Manassas: Manassas, LLC
Craig Capua
West & Associates
320 South R.L. Thornton Freeway
Suite 300
Dallas, Texas 75203
If to Shiloh, LLC: Shiloh, LLC
c/o Quantec LLC
Level 2 BCI House
P.O. Box 822
Rarotonga
Cook Islands
If to Javelina, LLC:
Javelina, LLC
c/o Novo Point LLC
Level 2 BCI House
P.O. Box 822
Rarotonga
Cook Islands
If to Diamond Key:
Diamond Key, LLC
c/o Nina deVassal
3553 Asbury
Dallas, Texas 75205
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EXECUTION VERSION
If to the Trust
ee of The Village Trust: Asiatrust Limited
Level 2 BCI House
P.O. Box 822
Rarotonga
Cook Islands
and
Craig Capua
West & Associates
320 South R.L. Thornton Freeway
Suite 300
Dallas, Texas 75203
If to the USVI Representative Parties: Franklin H. Perry
Payne & Blanchard, LLP
700 N. Pearl Street, Suite 500
Dallas, Texas 75201
and
Denis A. Kleinfeld
Kopelowitz Ostrow
200 SW 1
st
Avenue, 12
th
Floor
Ft. Lauderdale, Florida 33301
If to Manila Parties and Manila Related
Parties:
John W. MacPete
Locke Lord Bissell & Liddell, LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
With a courtesy copy to: Ravi Puri, Esq.
Netsphere Inc.
1300 Bristol Street North, Suite 200
Newport Beach, CA 92660
35. Retention of Protected Materials
. With respect to any discovery materials that have been
produced under protective order in any of the Underlying Cases, such materials shall be preserved
in accordance with and remain subject to the subject protective orders. Gardere Wynne shall
maintain copies of the imaged computers produced to Special Master Peter Vogel by Equivalent
Data and any copies which are currently in Equivalent Data’s possession during the term of the
License Agreement, and no Party or third party shall have access to such imaged computers except
pursuant to legal process. To the extent any Party to this Agreement seeks access to copies of the
imaged computers via legal process, such Party shall concurrently provide notice of such request
to Baron and the Manila Parties. Special Master Peter Vogel has agreed to keep and maintain such
discovery materials at no cost. Baron and the Manila Parties agree to seek an order from The
Honorable Royal Furgeson which confirms that Gardere Wynne will maintain such copies during
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EXECUTION VERSION
the ter
m of the License Agreement, the form of such order to be substantially as set forth in
Exhibit Q
attached hereto.
IN WITNESS WHEREOF, the Parties have each signed this Agreement as of the Settlement
Date.
______________________________________
DANIEL J. SHERMAN, Chapter 11
Bankruptcy Trustee of Ondova Limited
Company
ONDOVA LIMITED COMPANY
By: ___________________________________
Daniel J. Sherman, Chapter 11 Bankruptcy
Trustee
______________________________________
MUNISH KRISHAN, Individually and on
behalf of Mahnik Krishan and Amani Krishan
______________________________________
SEEMA KRISHAN, Individually and on behalf
of Mahnik Krishan and Amani Krishan
______________________________________
BIJU MATHEW, Individually
______________________________________
AMIR ASAD, Individually
______________________________________
ROHIT KRISHAN, Individually
______________________________________
MANOJ KRISHAN, Individually
______________________________________
MANISH AGGARWAL, Individually
______________________________________
AMER ZAVERI, Individually
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EXECUTION VERSION
______________________________________
JEFFREY BARON, individually and as a
beneficiary of and on behalf of all beneficiaries
of The Village Trust, Equity Trust Company
IRA 19471, the Daystar Trust, and the Belton
Trust
DAYSTAR TRUST
By: ___________________________________
Jeffrey Baron, Trustee
BELTON TRUST
By: ___________________________________
Jeffrey Baron, Trustee
______________________________________
DENIS KLEINFELD, individually and on
behalf of all officers, directors, managers,
members and employees of the USVI Entities
______________________________________
JEANNE HUDSON, individually
______________________________________
BYRON DEAN, individually and as Sole
Member of Manassas
______________________________________
BUD BRANSTETTER, individually and as
Manager of Manassas
______________________________________
NINA DEVASSAL, individually and as Sole
Member and Manager of Diamond Key, LLC
SHILOH, LLC
By: ___________________________________
Name: ________________________________
Title: _________________________________
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EXECUTION VERSION
JAVELINA,
LLC
By: ___________________________________
Name: ________________________________
Title: _________________________________
THE MMSK TRUST
By: Asiatrust Limited, Its Trustee
By: ___________________________________
Name: ________________________________
Title: _________________________________
THE VILLAGE TRUST
By: Asiatrust Limited, Its Trustee
By: ___________________________________
Name: ________________________________
Title: _________________________________
MANILA INDUSTRIES, INC.
By: ___________________________________
Name: ________________________________
Title: _________________________________
NETSPHERE, INC.
By: ___________________________________
Name: ________________________________
Title: _________________________________
HCB, LLC, a Delaware limited liability
company
By: Four Points Management, LLLP
By: Marshden, LLC, General Partner of Four
Points Management LLLP
By:___________________________________
Name: ________________________________
Title: _________________________________
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EXECUTION VERSION
HCB, LL
C, a USVI limited liability company
By: Four Points Management, LLLP
By: Marshden, LLC, General Partner of Four
Points Management LLLP
By:___________________________________
Name: ________________________________
Title: _________________________________
REALTY INVESTMENT MANAGEMENT,
LLC, a Delaware limited liability company
By: Four Points Management, LLLP
By: Marshden, LLC, General Partner of Four
Points Management LLLP
By:___________________________________
Name: ________________________________
Title: _________________________________
REALTY INVESTMENT MANAGEMENT,
LLC, a USVI limited liability company
By: Four Points Management, LLLP
By: Marshden, LLC, General Partner of Four
Points Management LLLP
By:___________________________________
Name: ________________________________
Title: _________________________________
SIMPLE SOLUTIONS, LLC
By: Four Points Management, LLLP
By: Marshden, LLC, General Partner of Four
Points Management LLLP
By:___________________________________
Name: ________________________________
Title: _________________________________
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EXECUTION VERSION
SEARC
H GUIDE, LLC
By: Four Points Management, LLLP
By: Marshden, LLC, General Partner of Four
Points Management LLLP
By:___________________________________
Name: ________________________________
Title: _________________________________
BLUE HORIZON LIMITED LIABILITY
COMPANY
By: Four Points Management, LLLP
By: Marshden, LLC, General Partner of Four
Points Management LLLP
By:___________________________________
Name: ________________________________
Title: _________________________________
FOUR POINTS MANAGEMENT, LLLP
By: Marshden, LLC, General Partner of Four
Points Management LLLP
By:___________________________________
Name: ________________________________
Title: _________________________________
MARSHDEN, LLC
By: ___________________________________
Name: ________________________________
Title: _________________________________
NOVO POINT, INC.
By: ___________________________________
Name: ________________________________
Title: _________________________________
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EXECUTION VERSION
I
GUANA CONSULTING, INC.
By: ___________________________________
Name: ________________________________
Title: _________________________________
QUANTEC, INC.
By: ___________________________________
Name: ________________________________
Title: _________________________________
NOVO POINT LLC
By: Novquant, LLC, Manager
By: ___________________________________
Name: ________________________________
Title: _________________________________
IGUANA CONSULTING LLC
By: Novquant, LLC, Manager
By: ___________________________________
Name: ________________________________
Title: _________________________________
QUANTEC LLC
By: Novquant, LLC, Manager
By: ___________________________________
Name: ________________________________
Title: _________________________________
CALLINGCARDS.COM, LLC
By: ___________________________________
Name: ________________________________
Title: _________________________________
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EXECUTION VERSION
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ID GENESIS, LLC
By: Netsphere, Inc., Sole Member
By: ___________________________________
Name: ________________________________
Title: _________________________________
DOMAIN JAMBOREE, LLC
By: ___________________________________
Name:_________________________________
Title:__________________________________
EQUITY TRUST COMPANY, a South
Dakota trust company, as Custodian of IRA
19471 and as successor in interest of Mid Ohio
Securities as Custodian of IRA 19471
By: ___________________________________
Name: ________________________________
Title: _________________________________
______________________________________
CHARLES ALDOUS, individually
______________________________________
JEFF RASANKY, individually
______________________________________
RON SHERIDAN, individually
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EXECUTION VERSION
EXHIBIT A
Form of Security Agreement
NETSPHERE, INC.
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (“Security Agreement
”), effective as of __________, 2010
(the “Effective Date
”), is made by NETSPHERE, INC., a Michigan corporation (“Maker”), MANILA
INDUSTRIES, INC., a California corporation (“Manila”) and ASIATRUST LIMITED AS TRUSTEE
OF THE VILLAGE TRUST, a trust organized and operating under the laws of the Cook Islands
(“Payee
”).
RECITALS:
WHEREAS, pursuant to that certain Mutual Settlement and Release Agreement dated on or about
the Effective Date among Manila, Payee and other parties named therein (the “Settlement Agreement
”),
Manila agreed to make the Deferred Payment (as defined in the Settlement Agreement); and
WHEREAS, to secure the payment and performance of Manila’s obligations to make the
Deferred Payment, Maker has agreed to grant Payee a first lien and security interest in and to all of
Maker’s right, title and interest in the domain name FreeSex.com;
NOW, THEREFORE, in consideration of the Secured Obligations (as hereinafter defined) and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by
Maker, and to induce Payee to accept the Deferred Payment, the parties hereto agree as follows:
1. Definitions
. Capitalized terms shall have the meanings set forth therein. In addition to
any other terms defined elsewhere in this Security Agreement, the following terms shall have the
following meanings:
“Collateral” shall mean all of Maker’s right, title and interest in and to the domain name
FreeSex.com (the “Domain Name
”), but Collateral shall not include, and the Payee waives any right to,
any Proceeds and Contract Rights, insurance proceeds, unearned premiums, tax refunds, rents, profits and
products thereof or any content or other information which may be located at or appear on the website
using this Domain Name.
“Contract Rights” shall mean any right to payment related to the Collateral.
“Deferred Payment Default” shall mean Manila’s failure to pay the Deferred Payment in
accordance with the Settlement Agreement, which failure remains uncured for more than thirty (30) days
after written notice thereof by Payee to Maker and Manila.
“Event of Default” shall mean (i) any breach by Maker of any warranty, covenant, agreement or
term by Maker under this Security Agreement, in each instance which remains uncured for more than
thirty (30) days after written notice thereof by Payee to Maker and Manila, or (ii) a Deferred Payment
Default.
“GAAP” shall mean generally accepted accounting principles.
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“Person”
means an individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
“Proceeds” shall mean all proceeds (as that term is defined in the UCC) and any and all amounts
or items of property received by or owing to or generated by Maker or for the benefit of Maker when any
Collateral or proceeds thereof are sold, exchanged, collected or otherwise disposed of, both cash and non-
cash, including proceeds of insurance, indemnity, warranty or guarantee paid or payable on or in
connection with any Collateral.
“Secured Obligations” shall mean the obligation of Manila to pay the Deferred Payment and the
obligations of Maker under this Security Agreement, as the same may be amended, modified or
supplemented from time to time, together with any and all extensions, renewals, refinancings or
refundings thereof in whole or in part.
“UCC” shall mean the Uniform Commercial Code as in effect in the State of California.
“Post-Default Deposits” shall mean all Proceeds, Contract Rights, insurance proceeds, rents,
profits and revenue of any type or character actually received by Maker generated from the Collateral
(including but not limited to revenues generated from the lease or license of the Collateral) after the date
of a Noticed Default (as defined in paragraph 8 hereof).
2. Grant of the Security Interest
.
(a) Maker hereby grants to and creates in favor of Payee a continuing security
interest and lien under the UCC and all other applicable laws in and to all of the Collateral.
Maker’s grant of such security interest and lien as security for the full and timely payment,
observance and performance of the Secured Obligations in accordance with the terms thereof.
(b) In furtherance of the intent of the parties hereto, and notwithstanding any other
provision of this Security Agreement to the contrary, the security interests and liens granted
hereunder shall be treated as first priority security interests and liens granted to Payee as the
Payee under this Security Agreement (including, without limitation, in a bankruptcy proceeding).
3. Maker’s Covenants, Representations, Warranties and Continuing Obligations
.
(a) Restrictions.
So long as the Deferred Payment remains outstanding and except as
otherwise permitted under this Security Agreement, Maker shall not, without the prior written
consent of Payee, sell, transfer, assign or otherwise dispose of the Collateral; provided, however
that (i) Maker may, without Payee’s consent, sell, transfer, assign or otherwise dispose of the
Collateral if the proceeds of such transaction are used to pay the Deferred Payment in full and in
cash at the closing of any such transaction, and (ii) Maker may from time to time, without
Payee’s consent, lease and/or license the rights to the Collateral so long as such lease or license
remains subject to this Security Agreement and subordinate to Payee’s first lien on the Collateral.
(b) Maker Representations and Warranties.
Maker hereby represents and warrants
that as of the date of this Security Agreement:
(i) Organization and Corporate Power
. Maker is a corporation validly
existing and in good standing under the laws of Michigan.
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EXECUTION VERSION
(ii) Authorization; No Breach.
The execution, delivery and performance of
this Security Agreement have been duly authorized by all necessary corporate action on
the part of Maker. The execution and delivery by Maker of this Security Agreement, and
the fulfillment of and compliance with the respective terms hereof by Maker, do not and
shall not (A) conflict with or result in a breach of any of the terms, conditions or
provisions of, (B) constitute a default under, (C) result in the creation of any lien, security
interest, charge or encumbrance upon Maker’s capital stock or assets pursuant to, (D)
give any third party the right to modify, terminate or accelerate any material obligation
under, (E) result in a material violation of, or (F) require any authorization, consent,
approval, exemption or other action by or notice or declaration to, or filing with, any
court or administrative or governmental body or agency pursuant to, the charter or bylaws
of Maker, or any law or statute or rule, regulation, order, writ, judgment, injunction or
decree of any court or administrative governmental body or agency to which Maker is
subject, or any material agreement to which Maker is a party.
(iii) Maker’s Continuing Obligations
. Notwithstanding any provision hereof
to the contrary, during the term of this Security Agreement, (i) Maker shall remain liable
under all contracts and agreements included in the Collateral and shall pay, perform and
observe all of its liabilities and obligations thereunder; (ii) Payee shall have no obligation
to pay, perform or observe any of Maker’s liabilities or obligations under such contracts
and agreements as a result of exercising its rights under this Security Agreement or
otherwise; and (iii) Payee’s exercise of its rights under this Security Agreement or
otherwise shall not release Maker from any of its liabilities or obligations under such
contracts and agreements.
4. Addresses and Locations
. Maker represents and warrants that as of the date of this
Security Agreement (i) the California address of Maker set forth on the signature page hereof is the
address of Maker’s chief executive office and the address at which Maker keeps all books and records (in
whatever form or medium, including all computer data, software and source codes) concerning the
Collateral, and (ii) Michigan is the jurisdiction of Maker’s incorporation.
5. Filing Requirements; Other Financing Statements
. Maker represents and warrants that as
of the date of this Security Agreement (i) none of its Collateral is covered by any certificate of title or
subject to any lien or grant of any security interest other than the one created by this Security Agreement,
and (ii) no financing statements describing any portion of the Collateral have been filed in any jurisdiction
except for financing statements evidencing liens securing the Secured Obligations.
6. Rights in Collateral
.
(a) Maker represents, warrants and covenants that it has and shall have at all times
indefeasible title to all Collateral, free and clear of all liens, claims, charges and encumbrances
(except for liens securing the Secured Obligations), and Maker shall defend such title against the
claims and demands of all other Persons. Maker represents and warrants that this Security
Agreement creates a valid security interest in the Collateral which, upon due filing of proper
financing statements shall constitute a valid first priority perfected lien on and security interest in
the Collateral, subject only to liens securing the Secured Obligations and liens which are
accorded priority by statute.
(b) Except for expenditures of cash in the ordinary course of business or as otherwise
permitted under Section 3(a) of this Security Agreement, Maker shall not sell, transfer, assign,
convey or otherwise dispose of, or extend, amend, terminate or otherwise modify any material
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EXECUTION VERSION
term
or provision of, any Collateral, any interest therein, nor waive or release any right with
respect thereto, without the prior written consent of Payee, which consent shall not be
unreasonably withheld, delayed or denied.
(c) Maker assumes full responsibility for taking any and all steps to preserve its
rights with respect to the Collateral against all prior parties.
7. Records
. Maker shall at all times maintain reasonably accurate and complete records
with respect to each item and category of the Collateral.
8. Taxes and Charges
. Maker shall pay and discharge all taxes, levies and other impositions
levied on any Collateral, separate and apart from Maker’s other assets and in accordance with generally
accepted accounting principles, consistently applied, except only to the extent that such taxes, levies and
other impositions shall not then be due or shall be contested in good faith by appropriate proceedings
diligently conducted (provided, such reserves and other provisions as may be required by generally
accepted accounting principles have been duly made and recorded on Maker’s financial records). If
Maker shall fail to do so, Payee may (but shall not be obligated to) pay such taxes, levies or impositions
for the account of Maker (without waiving or releasing any obligation or default by Maker hereunder),
and the amount thereof shall be added to the Secured Obligations and shall be payable upon demand with
interest accruing thereon at the rate provided in the Settlement Agreement.
9. Inspection
. Payee and its officers, employees and agents, at Payee’s sole expense and in
no event more than one (1) time during any twelve-month period, shall have the right at all reasonable
times upon at least ten (10) business days prior written notice, to inspect the Collateral.
10. Preservation and Protection of Security Interest
. Maker shall diligently preserve and
protect Payee’s security interest in the Collateral and shall, at its expense, cause such security interest in
the Collateral to be perfected and continue perfected so long as the Secured Obligations or any portion
thereof are outstanding and unpaid, and for such purposes, Maker shall from time to time at Payee’s
written request and at Payee’s expense file or record, or cause to be filed or recorded, such instruments,
documents and notices (including, without limitation, financing statements and continuation statements)
as Payee may deem necessary or advisable from time to time to perfect and continue perfected such
security interests. Maker shall do all such other reasonable acts and things and shall execute and deliver
all such other instruments and documents (including, without limitation, further security agreements,
pledge agreements, pledges, endorsements, assignments and notices) as Payee may deem reasonably
necessary from time to time to perfect and preserve the priority of Payee’s security interest in the
Collateral, as a first lien perfected security interest in the Collateral, prior to the rights of any other
secured party or lien creditor.
11. Remedy on Event of Default
. If any Event of Default shall occur and be continuing
beyond the expiration of any applicable notice and cure period, then so long as such Event of Default
exists:
(a) If the Event of Default is a Deferred Payment Default or default under paragraph
3(a) hereof, then Payee’s sole remedy for such default shall be to pursue a final, non-appealable
judgment to permit the sale at public auction of the Collateral pursuant to Article 9 of the UCC to
satisfy the Deferred Payment debt and/or to seek payment of the Deferred Payment debt, plus any
fees and costs pursuant to paragraph 15(f) from the Post Default Deposits. The sale at public
auction of the Collateral pursuant to Article 9 of the UCC shall occur only after notice and
advertising of any sale at public auction has been published for at least sixty (60) days in advance
of the sale date and notice must be provided to persons and entities as are required under Article 9
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EXECUTION VERSION
of the UCC for the conduc
t of a commercially reasonable sale at public auction. Additionally, any
such sale at public auction must be conducted by one of the nationally recognized domain name
auctioneers (or their successors) listed on Schedule 1
attached hereto, to the extent that such
auctioneers are then in existence and in the business of conducting domain name auctions. If none
of the auctioneers (or their respective successors) listed on Schedule 1
are then in existence or
will agree to conduct the sale on sixty (60) days notice, then Payee must use such other auctioneer
as would be required by Article 9 of the UCC for the conduct of a commercially reasonable sale
at public auction. In the event that a sale of the Collateral and application of the Post-Default
Deposits results in a surplus over and above the amount of the Deferred Payment debt plus any
fees and costs pursuant to paragraph 15(f), then such surplus shall be paid within five (5) business
days to Maker and, in the event that a sale of the Collateral results in a deficiency, then Payee
shall have recourse for such deficiency against Manila. To the extent that Payee seeks payment of
the Deferred Payment debt from the Post-Default Deposits, Manila shall be liable to Maker for
the amount of Post-Default Deposits applied to the Deferred Payment debt.
(b) If the Event of Default is other than a Deferred Payment Default or default under
paragraph 3(a), then Payee’s sole remedy shall be to seek specific performance, including, but not
limited to, preliminary injunctive relief and any attorneys fees permitted pursuant to subsection
15(f), by Maker of the warranty, covenant, agreement or term breached.
(c) It being understood in each instance referenced in clauses (a) and (b) above that
Maker shall have no obligation to make any payment of the Deferred Payment to Payee, which
shall at all times remain an obligation of Manila, and that Payee shall not have, nor be entitled to,
any other right or remedy under this Security Agreement, the UCC or any other applicable law.
12. Agreement to Deposit Funds.
In the event of an uncured Deferred Payment Default or a
default under paragraph 3(a) hereof, and upon written notice to Maker by Payee pursuant to the terms
hereof, and regardless of whether Maker contests whether such Deferred Payment Default or other default
under paragraph 3(a) hereof has occurred or whether Maker asserts defenses to such alleged default,
Maker agrees and it shall deposit into the registry of the United States District Court for the Northern
District of Texas, in connection with the litigation described in paragraph 11 hereof, all Post Default
Deposits. Maker agrees and stipulates that its obligation to make the Post Default Deposits, as described
herein, shall be enforceable by injunctive relief without bond and without the need for Payee to
demonstrate irreparable injury, such injury being stipulated and agreed to herein, and regardless of
whether Maker asserts defenses to any of the defaults called by Payee hereunder; it being the intent of
Maker and Payee that the right to the Post-Default Deposits should ultimately be adjudicated by the
court which has jurisdiction of the claims asserted by Payee against Maker as referenced in paragraph 11
hereof, and pursuant to this Security Agreement. All payments by Maker of the Post-Default Deposits
shall be made within five (5) business days from the date that they are received by Maker. Maker agrees
and stipulates that it shall not divert any traffic from freesex.com or, upon the written notice to Maker by
Payee pursuant to the terms hereof and after of a Deferred Payment Default or a default under paragraph
3(a) and regardless of whether Maker contests whether such Deferred Payment Default or other default
under paragraph 3(a) hereof has occurred, that it shall not divert any revenue from feesex.com, all of
which shall constitute Post Default Deposits. The obligation to make Post Default Deposits and
prohibition against diverting revenues or traffic from freesex.com shall be enforceable by injunctive relief
and based upon the stipulation and agreement of Maker that no bond shall be required for such injunctive
relief, and no showing of irreparable injury shall be required, such irreparable injury being stipulated to
by Maker herein.
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13. Continui
ng Validity of Obligations
.
(a) Maker’s obligations hereunder shall continue in full force and effect as long as
the Secured Obligations or any part thereof remain outstanding and unpaid and shall remain in
full force and effect without regard to and shall not be released, discharged or in any way affected
by (i) any renewal, refinancing or refunding of the Secured Obligations in whole or in part, (ii)
any extension of the time of payment of any of the Secured Obligations or any part thereof, (iii)
any compromise or settlement with respect to the Secured Obligations or any part thereof, or any
forbearance or indulgence extended to Maker, (iv) any amendment to or modification of the terms
of the Secured Obligations or any part thereof, or the Settlement Agreement, (v) any substitution,
exchange or release of, or failure to preserve, perfect or protect, or other dealing in respect of, the
Collateral or any other property or any security for the payment of the Secured Obligations or any
part thereof, (vi) any bankruptcy, insolvency, arrangement, composition, assignment for the
benefit of creditors or similar proceeding commenced by or against Maker, or (vii) any other
matter or thing whatsoever whereby the agreements and obligations of Maker hereunder would or
might otherwise be released or discharged other than payment in full of the Secured Obligations.
Maker hereby waives notice of the acceptance of this Security Agreement by Payee.
(b) To the extent that Manila makes a payment or payments to Payee, which
payment or any part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to Manila or a trustee, receiver or any other party
under any bankruptcy law, state or federal law, common law or equitable cause of action, then, to
the extent of such payment, the Secured Obligations or portion thereof intended to be satisfied
and this Security Agreement shall be revived and continue in full force and effect, as if such
payment had not been received by such party; provided that Maker shall have no obligation to
make any payment of the Deferred Payment to Payee.
14. Defeasance
. Upon payment in full of the Secured Obligations, this Security Agreement
shall terminate automatically and be of no further force and effect (except for the provisions of this
Section 14 which shall survive), and in such event Payee shall, at Payee’s expense take all action
necessary to terminate Payee’s security interest in the Collateral. This Security Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
15. Amendments, Waivers, Notices, Governing Law, etc
.
(a) The provisions of this Security Agreement may be amended, modified and
waived, but only in writing by Maker and Payee.
(b) Except as expressly provided otherwise in this Security Agreement, all notices
and other communications hereunder shall be made as set forth in the Settlement Agreement.
(c) This Security Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument and either of the parties hereto
may execute this Security Agreement by signing any such counterpart.
(d) THIS SECURITY AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF
CALIFORNIA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF
LAW PROVISION OR RULE (WHETHER OF THE STATE OF CALIFORNIA OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF
ANY JURISDICTION OTHER THAN THE STATE OF CALIFORNIA.
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(e) This Security Agreement i
s entered into in connection with and subject to the
Settlement Agreement. Notwithstanding any provision hereof to the contrary, in the event of any
claimed Event of Default hereunder, Maker reserves, and shall have, all rights, offsets, claims and
defenses to such claimed Event of Default which Maker is entitled to assert for any claimed
breach of the Settlement Agreement, to the same extent as if such provisions of the Settlement
Agreement had been expressly set forth herein.
(f) If any action is brought to enforce or interpret the terms of this Security
Agreement (including through arbitration), the prevailing party shall be entitled to reasonable
legal fees, costs and necessary disbursements in addition to any other relief to which such party
may be entitled.
(g) The United States District Court for the Northern District of Texas, The
Honorable Royal Furgeson, shall have jurisdiction over any and all other disputes and/or
matters related to this Security Agreement, whether related to its consummation, implementation,
enforcement or otherwise. In the event that the Honorable Royal Furgeson is not available to hear
a case related to this Security Agreement, then any other judge of the United States District Court
for the Northern District of Texas shall have jurisdiction over such case.
(h) In the event of a monetary default hereunder, if a party fails to timely pay monies
due another party more than two (2) times in any twelve (12) month period, for each subsequent
default during the subject twelve (12) month period, the defaulting party shall pay the non-
defaulting party(ies) two hundred fifty dollars ($250), in the aggregate, as a penalty and not as
interest.
IN WITNESS WHEREOF, the parties hereto have executed this Security Agreement as of the
Effective Date.
NETSPHERE, INC.
By:___________________________________
Name__________________________________
Title: _________________________________
Address
:
Netsphere, Inc.
c/o Ravi Puri, Esq.
1300 Bristol Street North, Suite 200
Newport Beach, CA 92660
MANILA INDUSTRIES, INC.
By:___________________________________
Name__________________________________
Title: _________________________________
Address
:
Manila Industries, Inc.
23312 Eagle Ridge
Mission Viejo, CA 92692
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THE VILL
AGE TRUST
By: Asiatrust Limited, Its Trustee
By: ___________________________________
Name: ________________________________
Title: _________________________________
Address
:
Asiatrust Limited
Level 2 BCI House
P.O. Box 822
Rarotonga
Cook Islands
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SCHEDULE 1 TO EXHIBIT A
List of Auctioneers
Auctioneer shall be one of the following (so long as it continues to conduct domain name auctions):
1) The legal entity that operates auctions via Sedo.com;
2) The legal entity that operates auctions via maltzauctions.com
3) Moniker Online Services, LLC (currently located at http://domainauctions.moniker.com/)
4) Rick Latona Auctions (currently located at http://www.ricklatona.com/domains/)
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EXHIBIT B
Form of License Agreement
POKERSTAR.COM LICENSE AGREEMENT
THIS POKERSTAR.COM LICENSE AGREEMENT (“License Agreement
”), effective as of the date of
the last signature hereto (“Effective Date
”), is by and between Asiatrust Limited as Trustee of the Village
Trust (“Licensor
”), and Netsphere, Inc., a Michigan corporation with its principal place of business at
1300 Bristol Street North, Suite 200, Newport Beach, CA 92660 (“Netsphere
”).
WHEREAS, Licensor represents and warrants that it is the sole registrant and owner of all rights
(property, contract, copyright, and all other rights recognized in law) in the internet domain name
Pokerstar.com and wishes to grant Netsphere an exclusive license to the Pokerstar.com domain name.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
1. DOMAIN LICENSE
1.1 License
.
Licensor hereby grants to Netsphere, for the Term of this License Agreement, an exclusive license to the
Pokerstar.com domain name, including, but not limited to, the exclusive right to use, in Netsphere’s sole
discretion, Pokerstar.com in any form of Online Business and including the right to sublicense. For
purposes of this License Agreement, “Online Business
” includes, but is not limited to, domain parking,
monetization, and build out and/or operation of a website associated with the Pokerstar.com domain
name. Nothing herein shall obligate Netsphere to operate, market, develop, or promote (including
without limitation through search engine optimization, purchasing keywords, advertising, or any affiliate
program) any Online Business or otherwise use the Pokerstar.com domain name during the Term of this
License Agreement. Licensor shall have no right of control, participation, or management regarding the
use or non-use of the Pokerstar.com domain name by Netsphere during the Term of this License
Agreement. Licensor may not grant another license to the Pokerstar.com domain name during the Term
without the written consent of Netsphere. Except as specifically provided herein, the ownership of all
rights in the domain name Pokerstar.com will remain with the Licensor and are in no way transferred to
Netsphere by virtue of the license granted in this License Agreement.
1.2 License Fee
.
In exchange for the exclusive license granted to Netsphere, fifty percent (50%) of any revenue Netsphere
receives from third parties via operation of any website at the address Pokerstar.com during the Term
(“License Fee
”) shall be paid via wire transfer to Licensor (in accordance with the wire instructions
provided by Craig Capua to John MacPete by email on June 7, 2010, by the 5th business day of each
month for monies received (only includes actual receipts, not monies earned, for which exact copies of e-
mails or online bank account activity statements indicating the relevant wire transfer receipts for the
operation of any website at the address Pokerstar.com shall be provided) in the prior month (i.e. revenues
earned in March will typically be paid to/received by Netsphere in April and, if received by Netsphere in
April, the License Fee from revenues earned in March will then be paid to Licensor by the 5th business
day of May). Netsphere shall retain the other fifty percent (50%) of any revenue it receives from third
parties via operation of a website at the address Pokerstar.com (“Netsphere Payment
”). Until such time as
the Combined Pokerstar Revenue and the Additional Payment (as such terms are defined in the
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Settlem
ent Agreement entered into by the parties on July 2, 2010 (“Settlement Agreement
”)) have been
paid in accordance with Section 6.C. of the Settlement Agreement, payments of the License Fee will be
made pursuant to Section 6.B and 6.C of the Settlement Agreement. If Licensor does not receive the
License Fee within the time period discussed in this paragraph, Licensor shall notify Netsphere in writing.
Within thirty (30) days of such notice (“Notice Period
”), Netsphere shall attempt to cure by: i) sending
Licensor a copy of the wire confirmation OR ii) sending any outstanding License Fee to Licensor. If
Netsphere fails to cure within the Notice Period, within five (5) business days of the end of such Notice
Period, Netsphere agrees to pay the License Fee and the Netsphere Payment into an escrow account held
by Gracy Title Company until the dispute is resolved. Additionally, if Netsphere utilizes the Notice
Period, due to Netsphere’s sole fault, more than two (2) times during any calendar year, it shall pay
Licensor the amount of two hundred fifty dollars ($250) (“Penalty Amount
”) for each Notice Period
utilized in excess of two (2) times during such calendar year. This Penalty Amount does not apply if the
additional Notice Period(s) utilized by Netsphere were not caused by Netsphere’s failure to pay any
outstanding License Fee.
1.3 Domain Renewal
.
During the Term, Licensor agrees to continue to renew Pokerstar.com at its own cost, with renewal to be
completed at least thirty-five (35) days prior to the expiration of any registration period. If Licensor fails
to renew Pokerstar.com at least thirty-five (35) days prior to the expiration of any registration period,
Netsphere shall notify Licensor in writing. Within 5 days of such notice (“Renewal Notice Period
”),
Licensor shall attempt to cure by renewing the registration period for Pokerstar.com. If Licensor fails to
cure within the Renewal Notice Period, Netsphere may renew the registration on Licensor’s behalf and, in
such event, Netsphere may deduct the renewal fee plus a Twenty Five Thousand Dollar ($25,000) penalty
from the next License Fee(s) owed to Licensor. If Netsphere exercises its right to renew the registration of
Pokerstar.com, if Pokerstar.com’s registrar refuses to perform the renewal, Licensor and Pokerstar.com’s
registrar agree that Netsphere shall be entitled to specific performance and a mandatory preliminary and
permanent injunction without any bond requirement and without prior notice to Licensor, its registrar,
and/or any other third party, requiring renewal of the Pokerstar.com domain for a minimum term of one
(1) year (or longer, if requested and paid for by Netsphere). Any costs, fees and attorney’s fees incurred
by Netsphere to obtain such injunctive relief shall be deducted from the next License Fee(s) owed to
Licensor until such costs, fees, and attorney’s fees are fully recovered.
1.4 Nameserver Change
.
During the Term, Licensor agrees to only point the nameservers and/or IP addresses for Pokerstar.com to
those nameservers and/or IP addresses requested by Netsphere (in its sole discretion) in writing (including
via e-mail). Other nameservers and/or IP addresses not authorized and/or requested by Netsphere are not
permitted. Any request by Netsphere to Licensor for an update to the nameserver and/or IP address for
Pokerstar.com shall be completed by Licensor (or its registrar) within twenty-four (24) business hours
(based on eight (8) hours per business day) of such request. If, during the Term, Licensor, the registrar
for Pokerstar.com, or any other third party (“Licensor Parties
”) removes and/or directs the nameservers
and/or IP addresses for Pokerstar.com to nameservers and/or IP addresses not authorized or consented to
by Netsphere in writing (“NS Removal
”), Netsphere shall send notice (“Nameserver Notice”) to Licensor
pursuant to the instructions provided by Licensor in an email to Ravi Puri dated July 1, 2010. Within
twenty-four (24) business hours (based on eight (8) hours per business day) of the Nameserver Notice
(“NS Notice Period
”), the Licensor Parties shall update the nameservers and/or IP addresses for
Pokerstar.com as requested by Netsphere (“NS Update
”). Licensor Parties and any entity and/or
individual acting with or without the consent of Licensor agree that Netsphere shall also be entitled to
specific performance and a mandatory preliminary and permanent injunction requiring the NS Update
without any bond requirement and without prior notice to the Licensor Parties. If Licensor Parties fail to
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perform
the NS Update within twelve (12) business hours, or immediately if Licensor Parties utilize the
NS Notice Period more than two (2) times during any calendar year, it shall pay Netsphere an amount,
equal to the revenue for the subject number of days (any partial days shall be rounded up to the next
whole number) multiplied by fifty percent (50%), Pokerstar.com has not been directed to a Netsphere
requested nameserver and/or IP address multiplied by the highest revenue earned for one day in the most
recent 30 days prior to the day the nameservers and/or IP addresses were not directed to a Netsphere
requested nameserver and/or IP address less fifty percent (50%) of any monies received by Netsphere for
Pokerstar.com for the day(s) the nameservers and/or IP addresses were not directed (regardless of when
received) as requested by Netsphere PLUS any reasonable costs, fees and attorney’s fees incurred by
Netsphere to obtain injunctive relief, if any, shall be deducted from the next License Fee(s) owed to
Licensor until the costs, fees, attorney’s fees, and penalty(ies) are fully recovered.
1.5 Intellectual Property Rights
.
a. Netsphere and its advertisers, affiliates, service providers and suppliers will retain ownership
of their intellectual property, including, but not limited to, patent, trademark, trade secret, and copyrights
(“Intellectual Property
”). All material available and/or published on a website at the address
Pokerstar.com, via the nameservers and/or IP addresses that Netsphere has requested Licensor to point
towards, including, but not limited to, written content, photographs, graphics, images, illustrations, marks,
logos, sound or video clips, and flash animation, is protected by intellectual property rights, including, but
not limited to, patent, copyright, trademark and trade secret (collectively “PS Content
”) and is the sole
property of Netsphere or its advertisers, affiliates, service providers and/or suppliers.
b. Licensor agrees that it is not authorized or licensed to use the PS Content and/or the
Intellectual Property that is used on or in connection with a website at the address Pokerstar.com and will
not make a claim to any rights to or ownership of the PS Content and/or any Intellectual Property that is
used on or in connection with a website at the address Pokerstar.com. Licensor will not: (1) adapt, alter,
broadcast, circulate, copy, create derivative works of, display, dispose, distribute, disseminate, edit,
electronically transfer, exploit, lease, license, loan, make available, modify, publish, register, rent,
reproduce, retransmit, revise, sell, sublicense, translate, or use any PS Content and/or Intellectual
Property; (2) reverse engineer, decompile, reverse compile, or disassemble any PS Content and/or
Intellectual Property in whole or in part; (3) use any information obtained by crawling and/or spidering
the website at the address Pokerstar.com (including, but not limited to the search results and any other
content); and/or (4) authorize any other person or entity to do any of the foregoing.
1.6 Term and Termination
.
a. Unless earlier terminated as set forth herein, the original term of this License Agreement
shall extend for twenty-five (25) years from the Transfer Date as set forth in the Settlement Agreement
and any subsequent renewal of this License Agreement for any period of time shall be agreed to in writing
by both parties at least thirty (30) days prior to the end of the original or any subsequent term. The
original term and any and all renewal terms are included within the meaning of “Term” as used herein.
b. Licensor may terminate this License Agreement only if the monthly funds received by
Licensor from Netsphere fall below Twelve Thousand Five Hundred United States Dollars ($12,500) per
month for six (6) consecutive months. If Licensor elects to exercise its option to terminate under this
provision, Licensor shall provide Netsphere with thirty (30) days written notice of termination.
c. Unless otherwise agreed to in this paragraph 1.6, this License Agreement may not be
terminated for any reason, including, but not limited to, an alleged breach of this License Agreement or
the Settlement Agreement.
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1.7 No
Warranties
.
Nothing in this License Agreement shall be deemed to be a warranty, express or implied, by Netsphere as
to Netsphere’s performance under this License Agreement and/or the performance of any Online Business
related to the Pokerstar.com domain. Netsphere shall not owe Licensor any fiduciary duties or other
duties that are not expressly provided in this License Agreement.
1.8 Records; Auditing
.
During the Term of the License Agreement, Licensor shall have the right, upon at least
fifteen (15)
business days prior written notice, during normal business hours, through an independent auditor, to
examine and audit Netsphere’s books and records for the preceding twelve (12) months (as of the date of
the audit) relating solely to the operation of a website at the address Pokerstar.com and the revenue
received therefrom (the “Records
”), which books and records shall be kept and maintained by Netsphere
in accordance with generally accepted accounting principles, consistently applied, separate and apart from
the books and records for Netsphere’s other business operations. Except in the case of an uncured default
hereunder, Licensor may exercise such right no more than one (1) time per calendar year. The cost of any
such examination and audit shall be paid by Licensor, except that, if it is determined on the basis of such
audit (or if, in accordance with the following provisions, it is otherwise ultimately determined) that
Netsphere’s revenues received for the period audited were understated by more than five percent (5%),
then the reasonable cost of the audit shall be paid by Netsphere and Netsphere shall immediately pay
Licensor any sums due as a License Fee for the subject audit period.
1.9 Notice
.
The parties agree that for purposes of notice, the names, e-mails, and facsimile numbers to receive notice
under this License Agreement may be changed subject to such information being provided to the other
party at least ten (10) days prior to the effective date of the change.
2. CONFIDENTIALITY
To the extent that the terms of this License Agreement are confidential and, except as required by law,
each of Licensor and Netsphere agree not to disclose the terms of this License Agreement to anyone other
than their officers, directors, attorneys, accountants, or pursuant to the formal request of any law
enforcement or administrative agency or a subpoena or order of a court, or as necessary to enforce its
rights or obligations under this License Agreement (the “Non-Disclosure Obligations
”). Furthermore, in
the event of any formal request of any law enforcement or administrative agency or a subpoena or order
of court, Licensor and Netsphere must use diligent reasonable efforts to limit each disclosure of
confidential information and notify the other party prior to disclosure, when permitted by law, so that
either (or both) party may seek confidential treatment or a protective order preventing such disclosure.
The parties’ Non-Disclosure Obligations include, without limitation, refraining from publishing or issuing
any press releases, news articles or external bulletins, and refraining from posting any statements on the
Internet that are accessible by third parties, or sending any e-mails or other correspondence to a third
party regarding the confidential terms of this License Agreement.
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3. GENERA
L
3.1 No Third Party Beneficiaries
.
This License Agreement is made solely for the benefit of the parties to this License Agreement and their
respective successors and assigns, and no other person or entity shall have or acquire any right by virtue
of this License Agreement
3.2 No Inducement
.
No party has been induced to enter into this License Agreement by, nor is any party relying on, any
representation or warranty outside those expressly set forth in this License Agreement.
3.3 No Waiver
.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the
provisions of this License Agreement shall be effective unless it is in writing and signed by the party
waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy shall be
deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, nor shall any
waiver constitute a continuing waiver unless the writing so specifies.
3.4 Force Majeure
.
If any party delays or fails to perform its obligations because of strikes, lockouts, labor disputes,
embargoes, acts of God, inability to obtain labor, materials or supplies or reasonable substitutes for labor,
materials or supplies, governmental restrictions, government regulations, governmental controls, judicial
orders, enemy or hostile governmental action, terrorism, civil commotion, fire or other casualty, or other
causes beyond the reasonable control of the party obligated to perform, then that party’s performance
shall be excused provided, that the party whose performance is affected by any such event gives the other
party written notice thereof within ten (10) business days of such event or occurrence.
3.5 Severability
.
If a court or an arbitrator of competent jurisdiction holds an
y provision of this License Agreement to be
illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the
remaining provisions, or portions of them, will not be affected.
3.6 Entire Agreement and Independent Counsel
.
This License Agreement, including all terms incorporated by
reference, is the complete and exclusive
agreement between the parties with respect to the subject matter hereof, superseding and terminating any
prior agreements and communications (both written and oral) regarding such subject matter. This License
Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the
parties hereto. Each party has been represented by counsel (or had the opportunity for same) and the
provisions hereof shall not be construed more harshly against either party as a result of drafting
responsibilities. If any action is brought to enforce or interpret the terms of this License Agreement, the
prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition
to any other relief to which such party may be entitled.
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3.7 Independent Contractors
.
The parties are independent contractors and not joint venturers. Neither party shall be deemed to be an
employee, employer, partner, distributor, joint venturer, agent, or legal representative of the other party
hereto for any purpose and neither party hereto shall have any right, power or authority to assume or
create any obligation or responsibility on behalf of the other party hereto nor shall this be deemed an
exclusive or fiduciary relationship.
3.8 Counterparts
.
This License Agreement may be executed in two or more counterparts, each of which shall be an original
or faxed copy and all of which together shall constitute one instrument. Facsimile signatures shall have
the same force and effect as original signatures.
3.9 Descriptive Headings
.
The section headings contained herein are for reference purposes only and shall not in any way affect the
meaning or interpretation of this License Agreement.
3.10 Taxes
.
Each party shall be responsible for its own tax filings, preparation, and payments as it may relate to their
respective value added tax (V.A.T.), federal, state, or local tax or any other tax imposed by any
governmental entity with taxing authority related to the respective parties.
3.11 Survival
.
Paragraphs 1.2 (with respect to fees incurred as of the date of termination), 1.3 (with respect to fees
incurred as of the date of termination), 1.4 (with respect to fees incurred as of the date of termination), 1.5
and 2 shall survive expiration of the Term or earlier termination of this License Agreement.
IN WITNESS WHEREOF, each party through its duly authorized representative has executed this
License Agreement as of the Effective Date:
NETSPHERE, INC. ASIATRUST LIMITED AS TRUSTEE OF
THE VILLAGE TRUST
By: _______________________ By: __________________________
Name: Name:
Title: Title:
Date: Date:
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EXHIBIT C
Form of Pokerstar Security Agreement
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (“Agreement
”), effective as of __________, 2010 (the
“Effective Date
”), is made by ASIATRUST LIMITED AS TRUSTEE OF THE VILLAGE TRUST, a
trust organized and operating under the laws of the Cook Islands (“Maker
”), and DANIEL J. SHERMAN
IN HIS CAPACITY AS CHAPTER 11 TRUSTEE OF ONDOVA LIMITED COMPANY D/B/A
COMPANA, LLC, A TEXAS LIMITED LIABILITY COMPANY, DEBTOR IN BANKRUPTCY CASE
NO. 09-34784-SGJ-11 PENDING IN THE UNITED STATES BANKRUPTCY COURT FOR THE
NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION (“Payee
”).
RECITALS:
WHEREAS, pursuant to that certain Mutual Settlement and Release Agreement dated on or about
the Effective Date among Maker, Payee and other parties named therein (the “Settlement Agreement
”),
Maker agreed to make the Additional Payment (as defined in the Settlement Agreement); and
WHEREAS, to secure the payment and performance of Maker’s obligations to make the
Additional Payment, Maker has agreed to grant Payee a first lien and security interest in and to all of
Maker’s right, title and interest in the domain name pokerstar.com, which shall be subordinate to the
Pokerstar.com License Agreement under the Settlement Agreement (“Pokerstar License
”);
NOW, THEREFORE, in consideration of the Secured Obligations (as hereinafter defined) and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by
Maker, and to induce Payee to accept the Additional Payment, the parties hereto agree as follows:
1. Definitions
. Capitalized terms shall have the meanings set forth therein. In addition to
any other terms defined elsewhere in this Agreement, the following terms shall have the following
meanings:
“Additional Payment Default” shall mean Maker’s failure to pay the Additional Payment in
accordance with the Settlement Agreement, which failure remains uncured for more than thirty (30) days
after written notice thereof by Payee to Maker.
“Collateral” shall mean all of Maker’s right, title and interest in and to the domain name
pokerstar.com (the “Domain Name
”), but Collateral shall not include, and the Payee waives any right to,
any Proceeds and Contract Rights, insurance proceeds, unearned premiums, tax refunds, rents, profits and
products thereof or any content or other information which may be located at or appear on the website
using this Domain Name.
“Contract Rights” shall mean any right to payment related to the Collateral.
“Event of Default” shall mean (i) any breach by Maker of any warranty, covenant, agreement or
term by Maker under this Agreement, in each instance which remains uncured for more than thirty (30)
days after written notice thereof by Payee to Maker, or (ii) an Additional Payment Default.
“GAAP” shall mean generally accepted accounting principles.
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“Person”
means an individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
“Pokerstar Escrow Agreement” shall have the meaning attributed to such term in the Settlement
Agreement.
“Proceeds” shall mean all proceeds (as that term is defined in the UCC) and any and all amounts
or items of property received when any Collateral or proceeds thereof are sold, exchanged, collected or
otherwise disposed of, both cash and non-cash, including proceeds of insurance, indemnity, warranty or
guarantee paid or payable on or in connection with any Collateral.
“Secured Obligations” shall mean the obligation of Maker to pay the Additional Payment and
the obligations of Maker under this Agreement, as the same may be amended, modified or supplemented
from time to time, together with any and all extensions, renewals, refinancings or refundings thereof in
whole or in part.
“UCC” shall mean the Uniform Commercial Code as in effect in the State of Texas.
2. Grant of the Security Interest
.
(a) Maker hereby grants to and creates in favor of Payee a continuing security
interest and lien under the UCC and all other applicable laws in and to all of the Collateral which
shall be subordinate to the Pokerstar.com License. Maker’s grant of such security interest and
lien as security for the full and timely payment, observance and performance of the Secured
Obligations in accordance with the terms thereof.
(b) In furtherance of the intent of the parties hereto, and notwithstanding any other
provision of this Agreement to the contrary, the security interests and liens granted hereunder
shall be treated as first priority security interests and liens granted to Payee as the Payee under
this Agreement (including, without limitation, in a bankruptcy proceeding) except that such
security interests and liens shall be subordinate to the Pokerstar.com License.
3. Maker’s Covenants, Representations, Warranties and Continuing Obligations
.
(a) Restrictions.
So long as the Additional Payment remains outstanding and except
as otherwise permitted under this Agreement, Maker shall not, without the prior written consent
of Payee, sell, transfer, assign or otherwise dispose of the Collateral; provided, however that (i)
Maker may, without Payee’s consent, sell, transfer, assign or otherwise dispose of the Collateral
if the proceeds of such transaction are used to pay the Additional Payment in full, and (ii) Maker
may from time to time, without Payee’s consent, sublease and/or sublicense the rights to the
Pokerstar.com License (but not re-register the Collateral in violation of the Settlement
Agreement) so long as such sublease or sublicense remains subject to this Agreement and
subordinate to Payee’s lien on the Collateral.
(b) Maker Representations and Warranties.
Maker hereby represents and warrants
that as of the date of this Agreement:
(i) Organization and Corporate Power
. Maker is a trust validly existing and
in good standing under the laws of the Cooks Islands.
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(ii) Authorization; No Breach.
The execution, delivery and performance of
this Agreement have been duly authorized by all necessary corporate action on the part of
Maker. The execution and delivery by Maker of this Agreement, and the fulfillment of
and compliance with the respective terms hereof by Maker, do not and shall not (A)
conflict with or result in a breach of any of the terms, conditions or provisions of, (B)
constitute a default under, (C) result in the creation of any lien, security interest, charge
or encumbrance upon Maker’s capital stock or assets pursuant to, (D) give any third party
the right to modify, terminate or accelerate any material obligation under, (E) result in a
material violation of, or (F) require any authorization, consent, approval, exemption or
other action by or notice or declaration to, or filing with, any court or administrative or
governmental body or agency pursuant to, the charter or bylaws of Maker, or any law or
statute or rule, regulation, order, writ, judgment, injunction or decree of any court or
administrative governmental body or agency to which Maker is subject, or any material
agreement to which Maker is a party.
(iii) Maker’s Continuing Obligations
. Notwithstanding any provision hereof
to the contrary, during the term of this Agreement, unless and until the Collateral is
transferred to Payee pursuant to the terms of the Pokerstar Escrow Agreement, (i) Maker
shall remain liable under all contracts and agreements included in the Collateral and shall
pay, perform and observe all of its liabilities and obligations thereunder; (ii) Payee shall
have no obligation to pay, perform or observe any of Maker’s liabilities or obligations
under such contracts and agreements as a result of exercising its rights under this
Agreement or otherwise; and (iii) Payee’s exercise of its rights under this Agreement or
otherwise shall not release Maker from any of its liabilities or obligations under such
contracts and agreements.
4. Addresses and Locations
. Maker represents and warrants that as of the date of this
Agreement (i) the address of Maker set forth on the signature page hereof is the address of Maker’s chief
executive office and the address at which Maker keeps all books and records (in whatever form or
medium, including all computer data, software and source codes) concerning the Collateral, and (ii) Cook
Islands is the jurisdiction of Maker’s incorporation.
5. Filing Requirements; Other Financing Statements
. Maker represents and warrants that as
of the date of this Agreement (i) none of its Collateral is covered by any certificate of title, and (ii) no
financing statements describing any portion of the Collateral have been filed in any jurisdiction except for
financing statements evidencing liens securing the Secured Obligations and the Pokerstar.com License.
6. Rights in Collateral
.
(a) Maker represents, warrants and covenants that it has and shall have at all times
indefeasible title to all Collateral, free and clear of all liens, claims, charges and encumbrances
(except for liens securing the Secured Obligations and the Pokerstar.com License), and Maker
shall defend such title against the claims and demands of all other Persons. Maker represents and
warrants that this Agreement creates a valid security interest in the Collateral which, upon due
filing of proper financing statements shall constitute a valid first priority perfected lien on and
security interest in the Collateral, which is subordinate to the Pokerstar.com License, subject only
to liens securing the Secured Obligations and liens which are accorded priority by statute.
(b) Except for expenditures of cash in the ordinary course of business or as otherwise
permitted under Section 3(a) of this Agreement, Maker shall not sell, transfer, assign, convey or
otherwise dispose of, or extend, amend, terminate or otherwise modify any material term or
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provision of, any
Collateral, any interest therein, nor waive or release any right with respect
thereto, without the prior written consent of Payee, which consent shall not be unreasonably
withheld, delayed or denied.
(c) Maker assumes full responsibility for taking any and all steps to preserve its
rights with respect to the Collateral against all prior parties. Payee shall be deemed to have
exercised reasonable care in the preservation and custody of the portion of the Collateral as may
be in Payee’s possession if Payee takes such action as Maker shall reasonably request in writing;
provided, such requested action shall not, in the judgment of Payee, impair Payee’s prior security
interest in such Collateral or its rights in or the value of such Collateral and, provided further, that
such written request is received by Payee in sufficient time to permit Payee to take the requested
action.
7. Records
. Maker shall at all times maintain reasonably accurate and complete records
with respect to each item and category of the Collateral.
8. Taxes and Charges
. Maker shall pay and discharge all taxes, levies and other impositions
levied on any Collateral, separate and apart from Maker’s other assets and in accordance with generally
accepted accounting principles, consistently applied, except only to the extent that such taxes, levies and
other impositions shall not then be due or shall be contested in good faith by appropriate proceedings
diligently conducted (provided, such reserves and other provisions as may be required by generally
accepted accounting principles have been duly made and recorded on Maker’s financial records). If
Maker shall fail to do so, Payee may (but shall not be obligated to) pay such taxes, levies or impositions
for the account of Maker (without waiving or releasing any obligation or default by Maker hereunder),
and the amount thereof shall be added to the Secured Obligations and shall be payable upon demand with
interest accruing thereon at the rate provided in the Settlement Agreement.
9. Inspection
. Payee and its officers, employees and agents, at Payee’s sole expense and in
no event more than one (1) time during any twelve-month period, shall have the right at all reasonable
times upon at least ten (10) business days prior written notice, to inspect the Collateral.
10. Preservation and Protection of Security Interest
. Maker shall diligently preserve and
protect Payee’s security interest in the Collateral and shall, at its expense, cause such security interest in
the Collateral to be perfected and continue perfected so long as the Secured Obligations or any portion
thereof are outstanding and unpaid, and for such purposes, Maker shall from time to time at Payee’s
written request and at Payee’s expense file or record, or cause to be filed or recorded, such instruments,
documents and notices (including, without limitation, financing statements and continuation statements)
as Payee may deem necessary or advisable from time to time to perfect and continue perfected such
security interests. Maker shall do all such other reasonable acts and things and shall execute and deliver
all such other instruments and documents (including, without limitation, further security agreements,
pledge agreements, pledges, endorsements, assignments and notices) as Payee may deem reasonably
necessary from time to time to perfect and preserve the priority of Payee’s security interest in the
Collateral, as a perfected security interest in the Collateral, prior to the rights of any other secured party or
lien creditor, except with respect to the Pokerstar.com License, to which its security interest is
subordinate.
11. Remedy on Event of Default
. If any Event of Default shall occur and be continuing
beyond the expiration of any applicable notice and cure period, then so long as such Event of Default
exists, (i) if the Event of Default is an Additional Payment Default, then Payee’s sole remedy for such
Additional Payment Default shall be to pursue a final, non-appealable judgment to cause the transfer of
the Domain Name in accordance with the provisions of the Pokerstar Escrow Agreement, and (ii) if the
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Event of Default is other than an Additional Pay
ment Default, then Payee’s sole remedy shall be to seek
specific performance, including, but not limited to, preliminary injunctive relief and any attorneys fees
permitted pursuant to subsection 14(f), by Maker of the warranty, covenant, agreement or term breached,
it being understood in each instance referenced in clauses (i) and (ii) above that Payee shall not have, nor
be entitled to, any other right or remedy under this Agreement, the UCC or any other applicable law.
12. Continuing Validity of Obligations
.
(a) Maker’s obligations hereunder shall continue in full force and effect as long as
the Secured Obligations or any part thereof remain outstanding and unpaid and shall remain in
full force and effect without regard to and shall not be released, discharged or in any way affected
by (i) any renewal, refinancing or refunding of the Secured Obligations in whole or in part, (ii)
any extension of the time of payment of any of the Secured Obligations or any part thereof, (iii)
any compromise or settlement with respect to the Secured Obligations or any part thereof, or any
forbearance or indulgence extended to Maker, (iv) any amendment to or modification of the terms
of the Secured Obligations or any part thereof, or the Settlement Agreement, or the Pokerstar
Escrow Agreement, (v) any substitution, exchange or release of, or failure to preserve, perfect or
protect, or other dealing in respect of, the Collateral or any other property or any security for the
payment of the Secured Obligations or any part thereof, (vi) any bankruptcy, insolvency,
arrangement, composition, assignment for the benefit of creditors or similar proceeding
commenced by or against Maker, or (vii) any other matter or thing whatsoever whereby the
agreements and obligations of Maker hereunder would or might otherwise be released or
discharged other than payment in full of the Secured Obligations. Maker hereby waives notice of
the acceptance of this Agreement by Payee.
(b) To the extent that Maker makes a payment or payments to Payee, which payment
or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to Maker or a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause of action, then, to the extent
of such payment, the Secured Obligations or portion thereof intended to be satisfied and this
Agreement shall be revived and continue in full force and effect, as if such payment had not been
received by such party..
13. Defeasance
. Upon payment in full of the Secured Obligations, this Agreement shall
terminate automatically and be of no further force and effect (except for the provisions of this Section 13
which shall survive), and in such event Payee shall, at Payee’s expense and without recourse,
representation or warranty, redeliver and reassign to Maker the Collateral, terminate the Pokerstar Escrow
Agreement in accordance with its terms and take all action necessary to terminate Payee’s security
interest in the Collateral. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
14. Amendments, Waivers, Notices, Governing Law, etc
.
(a) The provisions of this Agreement may be amended, modified and waived, but
only in writing by Maker and Payee.
(b) Except as expressly provided otherwise in this Agreement, all notices and other
communications hereunder shall be made as set forth in the Settlement Agreement.
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(c) This Agreement
may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and either of the parties hereto may
execute this Agreement by signing any such counterpart.
(d) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF TEXAS, WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR
RULE (WHETHER OF THE STATE OF TEXAS OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF TEXAS.
(e) This Agreement is entered into in connection with and subject to the Settlement
Agreement. Notwithstanding any provision hereof to the contrary, in the event of any claimed
Event of Default hereunder, Maker reserves, and shall have, all rights, offsets, claims and
defenses to such claimed Event of Default which Maker is entitled to assert for any claimed
breach of the Settlement Agreement, to the same extent as if such provisions of the Settlement
Agreement had been expressly set forth herein.
(f) If any action is brought to enforce or interpret the terms of this Agreement
(including through arbitration), the prevailing party shall be entitled to reasonable legal fees, costs
and necessary disbursements in addition to any other relief to which such party may be entitled.
(g) The United States District Court for the Northern District of Texas, The
Honorable Royal Furgeson, shall have jurisdiction over any and all other disputes and/or
matters related to this Agreement, whether related to its consummation, implementation,
enforcement or otherwise.
(h) In the event of a monetary default hereunder, if a party fails to timely pay monies
due another party more than two (2) times in any twelve (12) month period, for each subsequent
default during the subject twelve (12) month period, the defaulting party shall pay the non-
defaulting party(ies) two hundred fifty dollars ($250), in the aggregate, as a penalty and not as
interest.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
_____________________________________________
DANIEL J. SHERMAN, Chapter 11 Trustee for
Ondova Limited Company
Address
:
Daniel J. Sherman, Trustee
509 N. Montclair Avenue
Dallas, Texas 75208
and
Raymond J. Urbanik
Munsch Hardt Kopf & Harr, P.C.
500 North Akard Street
Suite 3800
Dallas, Texas 75201-6659
THE VILLAGE TRUST
By: Asiatrust Limited, Its Trustee
By:__________________________________________
Name: _______________________________________
Title: ________________________________________
Address
:
Asiatrust Limited
Level 2 BCI House
P.O. Box 822
Rarotonga
Cook Islands
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EXHIBIT D
Form of Pokerstar Escrow Agreement
DOMAIN NAME ESCROW AGREEMENT
ESCROW NO. _________________
BY AND AMONG
DANIEL J. SHERMAN, TRUSTEE,
ASIATRUST LIMITED AS TRUSTEE OF THE VILLAGE TRUST
AND GRACY TITLE COMPANY
TO: Gracy Title Company
100 Congress Avenue, Suite 100
Austin, Texas 78701
Attn: Elizabeth Young
Senior Commercial Escrow Officer
Telephone: (512) 322-8728
Fax: (512) 472-3101
Email: elizabeth@gracytitle.com
******************************************************************************
THIS DOMAIN NAME ESCROW AGREEMENT (“Agreement
”) is made and entered into
effective as of ________, 2010 (the “Effective Date
”), by and among DANIEL J. SHERMAN IN HIS
CAPACITY AS CHAPTER 11 TRUSTEE OF ONDOVA LIMITED COMPANY D/B/A COMPANA,
LLC, A TEXAS LIMITED LIABILITY COMPANY, DEBTOR IN BANKRUPTCY CASE NO. 09-
34784-SGJ-11 PENDING IN THE UNITED STATES BANKRUPTCY COURT FOR THE
NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION (the “Chapter 11 Trustee
”), ASIATRUST
LIMITED AS TRUSTEE OF THE VILLAGE TRUST (“Maker
”) and GRACY TITLE COMPANY, a
Texas corporation (“Escrow Agent
”). The parties hereby agree as follows:
1. The Chapter 11 Trustee, Asiatrust and other parties named therein entered into that
certain Mutual Settlement and Release Agreement dated July 2, 2010 (the “Settlement Agreement
”),
which provides for Maker to execute and deliver the Pokerstar Assignment (as defined in the Settlement
Agreement) in escrow to secure Maker’s payment of the Additional Payment (as defined in the Settlement
Agreement).
2. Escrow Agent has agreed to serve in a depository capacity and as a stakeholder only, on
and subject to the terms and provisions set forth in this Agreement.
3. In accordance with the Settlement Agreement, Maker will deposit in escrow, and the
Escrow Agent agrees to receive and hold, the Pokerstar Assignment for the benefit of the Chapter 11
Trustee.
4. Upon receipt of (i) Maker’s dated and signed notice in the form attached hereto as
Schedule 1
(the “Default Notice”) and (ii) a judgment (“Judgment”) from either the U.S. Bankruptcy
Court for the Northern District of Texas or the U.S. District Court for the Northern District of Texas,
which judgment the Chapter 11 Trustee represents to be a final and non-appealable judgment, ordering
the Escrow Agent to date and deliver the Pokerstar Assignment to the Chapter 11 Trustee, then (provided
Maker has not objected to delivery of the Assignment by written notice delivered the Chapter 11 Trustee
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EXECUTION VERSION
and Escrow
Agent within ten (10) business days after the date of the Default Notice on the grounds that
the subject judgment is not final and non-appealable), Escrow Agent agrees, promptly after expiration of
the subject ten (10) business day period, to date the Assignment and deliver it to Chapter 11 Trustee.
Provided that if Escrow Agent receives a dated and signed release request in the form attached hereto as
Schedule 2
(the “Release Notice”), Escrow Agent shall promptly return the Assignment to Maker.
5. The parties hereto recognize, acknowledge, covenant and agree that the following terms
and provisions shall control with respect to the rights, privileges, duties, liabilities and immunities of
Escrow Agent hereunder:
(a) Escrow Agent is acting solely in the role of a depository hereunder.
(b) Escrow Agent shall not be responsible or liable in any manner whatsoever for the
sufficiency, correctness, genuineness or validity of the subject matter of the escrow hereby
established, or any portion thereof, or for the form or execution thereof, or for the identity or
authority of any person executing or depositing the same.
(c) Escrow Agent is hereby authorized to rely upon, and shall be protected in acting
upon, any written notice, statement, waiver, consent, certificate, affidavit, receipt, authorization,
power of attorney or other instrument or document which Escrow Agent in good faith believes to
be genuine and what it purports to be.
(d) In accepting any documents delivered to Escrow Agent hereunder, it is agreed
and understood that Escrow Agent will not be called upon to construe any contract, instrument or
document deposited herewith or submitted hereunder, but only to follow the specific instructions
provided for pursuant to this Agreement.
(e) Except for this Agreement, Escrow Agent is not a party to, and shall not be
bound by, any agreements by and among Chapter 11 Trustee and Maker.
(f) Escrow Agent shall not be liable for anything which it may do or refrain from
doing in connection herewith, except due directly to its own negligence or willful misconduct.
(g) In the event of any disagreement between any of the parties to this Agreement, or
between them or either or any of them and any other person or party, resulting in adverse and/or
conflicting claims or demands being made in connection with the subject matter of this escrow, or
in the event that Escrow Agent, in good faith, is in doubt as to what action it should take
hereunder, Escrow Agent may, in its sole discretion, refuse to comply with any claims or
demands made upon it, or refuse to take any other action hereunder, or interplead this agreement
into the U.S. District Court for the Northern District of Texas, so long as such disagreement
continues or such doubt exists, and in such event Escrow Agent shall not be or become liable in
any way or to any person or party for its failure or refusal to act, and Escrow Agent shall be
entitled to continue to so refrain from acting until (i) the rights of all interested parties shall have
been fully and finally adjudicated by either the U.S. Bankruptcy Court for the Northern District of
Texas or the U.S. District Court for the Northern District of Texas or (ii) all differences shall have
been adjusted and all doubt resolved by agreement among all of the interested parties and Escrow
Agent shall have been notified thereof in writing signed by all such parties.
6. For its ordinary services hereunder, Escrow Agent shall be entitled to a fee of $100.00,
payable by Maker concurrently with Escrow Agent’s execution hereof.
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7. Any
notice, report or demand required, permitted or desired to be given under this
Agreement shall be in writing and shall be deemed to have been sufficiently given or served for all
purposes on the day sent by nationally recognized overnight courier or when telefaxed by confirmed
facsimile, addressed to (i) Escrow Agent at the address on the first page hereof, and (ii) the Chapter 11
Trustee and Asiatrust as follows:
If to Maker: Asiatrust Limited
Level 2 BCI House
P.O. Box 822
Rarotonga
Cook Islands
Phone: 011-682-2338
Fax: 011-682-2338
If to the Chapter 11 Trustee: Daniel J. Sherman, Trustee
509 N. Montclair Avenue
Dallas, Texas 75208
and
Raymond J. Urbanik
Munsch Hardt Kopf & Harr, P.C.
500 North Akard Street
Suite 3800
Dallas, Texas 75201-6659
8. Facsimile signatures appearing hereon shall be deemed an original and this document
may be executed simultaneously in two or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one and the same instrument.
9. This Agreement constitutes the entire agreement and understanding among Maker, the
Chapter 11 Trustee and Escrow Agent with respect to the Assignment. No subsequent alteration,
amendment, change, deletion or addition to this Agreement shall be binding or effective unless the same
shall be in writing and signed by all parties to this Agreement.
10. This Agreement shall be governed by and construed under and in accordance with the
laws of the State of Texas, without resort to conflicts of law principles.
11. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto
and their respective heirs, legal representatives, successors and assigns.
12. Time is of the essence with respect to this Agreement.
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MAKER:
THE VILLAGE TRUST
By: Asiatrust Limited, Its Trustee
By: ___________________________________
Name: ________________________________
Title:
CHAPTER 11 TRUSTEE:
______________________________________
DANIEL J. SHERMAN, Chapter 11 Trustee for
Ondova Limited Company
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ESCR
OW RECEIPT
Escrow Agent hereby acknowledges receipt of this Agreement and of the original of the Pokerstar
Assignment referenced therein and agrees to hold and dispose of the same in accordance with the terms
and provisions of this Agreement.
Dated: _____, 2010
ESCROW AGENT:
Gracy Title Company
By____________________________________
Elizabeth Young
Sr. Commercial Escrow Officer
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SCHE
DULE 1 TO EXHIBIT D - ESCROW AGREEMENT
Form of Default Notice
___________________, 20__ BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED
Gracy Title Company
100 Congress Avenue, Suite 100
Austin, Texas 78701
Attn: Elizabeth Young
Senior Commercial Escrow Officer
RE: Escrow No. _________________ (“Escrow
”) by and between Daniel J. Sherman,
Trustee (the “Chapter 11 Trustee
”), Asiatrust Limited as Trustee of the Village Trust
(“Asiatrust
”) and Gracy Title Company “Escrow Agent”)
Dear Ms. Young:
Pursuant to the referenced Escrow, the Chapter 11 Trustee hereby (i) advises Escrow Agent that
the ____________________________ [name of court issuing order] has issued the attached judgment
(“Judgment
”) ordering Escrow Agent to date and deliver the Pokerstar Assignment to the Chapter 11
Trustee; (ii) represents to Escrow Agent that the Judgment is final and non-appealable; and (iii) instructs
Escrow Agent to take the following action on the eleventh (11
th
) business day after the date Escrow Agent
receives this notice:
1. Date the Pokerstar Assignment as of the date of Escrow Agent’s receipt of this notice;
2. Mail the Assignment to the Chapter 11 Trustee by certified mail, return receipt requested,
to the following address:
Daniel J. Sherman, Trustee for Ondova Limited
Company
509 N. Montclair Avenue
Dallas, Texas 75208
3. Mail a copy of this notice and of Escrow Agent’s transmittal pursuant to Section 2 above
(inclusive of a copy of the dated Assignment) to Asiatrust by certified mail, return receipt requested, to
the following addresses:
Asiatrust Limited
Level 2 BCI House
P.O. Box 822
Rarotonga
Cook Islands
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Schedule 1 to Escrow Agreement
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Schedule 1 to Escrow Agreement
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Sincerely,
DANIEL J. SHERMAN, Chapter 11 Trustee for
Ondova Limited Company
cc: Raymond J. Urbanik
Munsch Hardt Kopf & Harr, P.C.
500 North Akard Street
Suite 3800
Dallas, Texas 75201-6659
(via certified mail, return receipt requested)
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EXECUTION VERSION
SCHE
DULE 2 TO EXHIBIT D - ESCROW AGREEMENT
Form of Request Notice
___________________, 20__ BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED
Gracy Title Company
100 Congress Avenue, Suite 100
Austin, Texas 78701
Attn: Elizabeth Young
Senior Commercial Escrow Officer
RE: Escrow No. _________________ (“Escrow
”) by and between Daniel J. Sherman,
Trustee (the “Chapter 11 Trustee
”), Asiatrust Limited as Trustee of the Village Trust
(“Asiatrust
”) and Gracy Title Company “Escrow Agent”)
Dear Ms. Young:
Pursuant to the referenced Escrow, the Chapter 11 Trustee and Asiatrust hereby (i) advise Escrow
Agent that Asiatrust has satisfied its obligations pursuant to that certain Security Agreement dated
__________, 2010, from Asiatrust, as Maker, and the Chapter 11 Trustee, as Payee, and (ii) instruct
Escrow Agent to promptly return the Pokerstar assignment to Asiatrust by certified mail, return receipt
requested, to the following address:
Asiatrust Limited
Level 2 BCI House
P.O. Box 822
Rarotonga
Cook Islands
Sincerely,
DANIEL J. SHERMAN, Chapter 11 Trustee for
Ondova Limited Company
cc: Raymond J. Urbanik
Munsch Hardt Kopf & Harr, P.C.
500 North Akard Street
Suite 3800
Dallas, Texas 75201-6659
(via certified mail, return receipt requested)
D-9
Schedule 2 to Escrow Agreement
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EXHIBIT E
Form of Pokerstar Assignment
ASSIGNMENT
STATE OF ________________ §
§ KNOW ALL BY THESE PRESENTS
COUNTY OF _____________ §
WHEREAS, THE VILLAGE TRUST, a Cook Islands trust (“Assignor
”), is the owner and holder
of the domain name pokerstar.com (the “Name
”); and
WHEREAS, Assignor desires to sell, assign, and transfer the Name to DANIEL J. SHERMAN,
CHAPTER 11 TRUSTEE FOR ONDOVA LIMITED COMPANY (“Assignee
”); and
WHEREAS, Assignee desires to acquire the Name from Assignor;
NOW, THEREFORE, FOR VALUE RECEIVED:
1. Assignor hereby sells, assigns and transfers the name, and all right, title and interest of
Assignor in and to the Name, subject to the Pokerstar.com License Agreement under the Settlement
Agreement, unto Assignee, its successors and assigns, forever, and Assignor covenants and agrees, on
Assignor’s behalf, and on behalf of Assignor’s successors and assigns, to warrant and forever defend the
title to the Name, and all such right, title and interest, against the claims and demands of all persons.
2. Assignor hereby (i) represents to Assignor that it (a) owns the Name free and clear of any
liens or encumbrances, except for the Pokerstar.com License Agreement under the Settlement Agreement,
(b) has full power and authority to sell, assign and transfer the Name to Assignee pursuant to this
Assignment, and (c) has taken all action required for the effectuation of the sale, assignment and transfer
of the Name to Assignee pursuant to this Assignment.
3. The undertakings and covenants contained in this Assignment shall be binding upon, and
inure to the benefit of, Assignee, its successors and assigns.
4. This Assignment shall be governed by and construed under the substantive laws of the
State of Texas, without resort to conflict of laws principles.
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EXECUTED on the __ day of ____________, 2010.
ASSIGNOR:
THE VILLAGE TRUST
By: Asiatrust Limited, Its Trustee
By:_____________________________
Name:___________________________
Title:
STATE OF ________________ §
§
COUNTY OF _____________ §
This instrument was acknowledged before me on _______________, 20__, by
_______________, _____________ of Asiatrust Limited, Trustee of The Village Trust, a Cook Islands
trust, on behalf of said trust.
______________________________________
Notary Public, State of ___________
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EXHIBIT F
Form of Blue Horizon Security Agreement
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (“Agreement
”), effective as of __________, 2010 (the
“Effective Date
”), is made by ASIATRUST LIMITED AS TRUSTEE OF THE VILLAGE TRUST, a
trust organized and operating under the laws of the Cook Islands (“Maker
”), and DANIEL J. SHERMAN
IN HIS CAPACITY AS CHAPTER 11 TRUSTEE OF ONDOVA LIMITED COMPANY D/B/A
COMPANA, LLC, A TEXAS LIMITED LIABILITY COMPANY, DEBTOR IN BANKRUPTCY CASE
NO. 09-34784-SGJ-11 PENDING IN THE UNITED STATES BANKRUPTCY COURT FOR THE
NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION (“Payee
”).
RECITALS:
WHEREAS, pursuant to that certain Mutual Settlement and Release Agreement dated on or about
the Effective Date among Maker, Payee and other parties named therein (the “Settlement Agreement
”),
Maker agreed to make the Additional Payment (as defined in the Settlement Agreement); and
WHEREAS, to secure the payment and performance of Maker’s obligations to make the
Additional Payment, Maker has agreed to grant Payee a first lien and security interest in and to all of
Maker’s right, title and interest in the Blue Horizon Portfolio (as defined below);
NOW, THEREFORE, in consideration of the Secured Obligations (as hereinafter defined) and
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by
Maker, and to induce Payee to accept the Additional Payment, the parties hereto agree as follows:
1. Definitions
. Capitalized terms shall have the meanings set forth therein. In addition to
any other terms defined elsewhere in this Agreement, the following terms shall have the following
meanings:
“Additional Payment Default” shall mean Maker’s failure to pay the Additional Payment in
accordance with the Settlement Agreement, which failure remains uncured for more than thirty (30) days
after written notice thereof by Payee to Maker.
“Blue Horizon Portfolio” shall mean any and all domain names that previously were registered
through Ondova Limited Company, exclusive of the Even Group Portfolio (as defined in the Settlement
Agreement), the Odd Group Portfolio (as defined in the Settlement Agreement) and any domain name not
registered through or at Ondova Limited Company as of February 22, 2010, and exclusive of
pokerstar.com, servers.com and the Excluded Disputed Domains.
“Collateral” shall mean all of Maker’s right, title and interest in and to the Blue Horizon
Portfolio, but Collateral shall not include, and the Payee waives any right to, any Proceeds and Contract
Rights, insurance proceeds, unearned premiums, tax refunds, rents, profits and products thereof or any
content or other information which may be located at or appear on a website using any domain name in
the Blue Horizon Portfolio.
“Contract Rights” shall mean any right to payment related to the Collateral.
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“Event of Default” shall mean (i) any
breach by Maker of any warranty, covenant, agreement or
term by Maker under this Agreement, in each instance which remains uncured for more than thirty (30)
days after written notice thereof by Payee to Maker, or (ii) an Additional Payment Default, or (iii) any
non-Payee breach Section 6.C. of the Settlement Agreement.
“GAAP” shall mean generally accepted accounting principles.
“Person” means an individual, a partnership, a corporation, a limited liability company, an
association, a joint stock company, a trust, a joint venture, an unincorporated organization and a
governmental entity or any department, agency or political subdivision thereof.
“Post-Default Deposits” shall mean all Proceeds, Contract Rights, insurance proceeds, rents,
profits and revenue of any type or character actually received by Maker generated from the Collateral
(including but not limited to revenues generated from any lease or license of the Collateral) after the date
of a Noticed Default (as defined in Section 11 hereof).
“Proceeds” shall mean all proceeds (as that term is defined in the UCC) and any and all amounts
or items of property received when any Collateral or proceeds thereof are sold, exchanged, collected or
otherwise disposed of, both cash and non-cash, including proceeds of insurance, indemnity, warranty or
guarantee paid or payable on or in connection with any Collateral.
“Secured Obligations” shall mean the obligation of Maker to pay the Additional Payment and
the obligations of Maker under this Agreement, as the same may be amended, modified or supplemented
from time to time, together with any and all extensions, renewals, refinancings or refundings thereof in
whole or in part.
“UCC” shall mean the Uniform Commercial Code as in effect in the State of Texas.
2. Grant of the Security Interest
.
(a) Maker hereby grants to and creates in favor of Payee a continuing security
interest and lien under the UCC and all other applicable laws in and to all of the Collateral.
Maker’s grant of such security interest and lien as security for the full and timely payment,
observance and performance of the Secured Obligations in accordance with the terms thereof.
(b) In furtherance of the intent of the parties hereto, and notwithstanding any other
provision of this Agreement to the contrary, the security interests and liens granted hereunder
shall be treated as first priority security interests and liens granted to Payee as the Payee under
this Agreement (including, without limitation, in a bankruptcy proceeding).
3. Maker’s Covenants, Representations, Warranties and Continuing Obligations
.
(a) Restrictions.
So long as the Additional Payment remains outstanding and except
as otherwise permitted under this Agreement, Maker shall not, without the prior written consent
of Payee, sell, transfer, assign or otherwise dispose of the Collateral; provided, however, that
Maker may, without Payee’s consent, sell, transfer, assign or otherwise dispose of the Collateral
if the proceeds of such transaction are used to pay the Additional Payment in full.
(b) Maker Representations and Warranties.
Maker hereby represents and warrants
that as of the date of this Agreement:
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(i) Organization and Corporat
e Power
. Maker is a trust validly existing and
in good standing under the laws of the Cooks Islands.
(ii) Authorization; No Breach.
The execution, delivery and performance of
this Agreement have been duly authorized by all necessary corporate action on the part of
Maker. The execution and delivery by Maker of this Agreement, and the fulfillment of
and compliance with the respective terms hereof by Maker, do not and shall not (A)
conflict with or result in a breach of any of the terms, conditions or provisions of, (B)
constitute a default under, (C) result in the creation of any lien, security interest, charge
or encumbrance upon Maker’s capital stock or assets pursuant to, (D) give any third party
the right to modify, terminate or accelerate any material obligation under, (E) result in a
material violation of, or (F) require any authorization, consent, approval, exemption or
other action by or notice or declaration to, or filing with, any court or administrative or
governmental body or agency pursuant to, the charter or bylaws of Maker, or any law or
statute or rule, regulation, order, writ, judgment, injunction or decree of any court or
administrative governmental body or agency to which Maker is subject, or any material
agreement to which Maker is a party.
(iii) Maker’s Continuing Obligations
. Notwithstanding any provision hereof
to the contrary, during the term of this Agreement, (i) Maker shall remain liable under all
contracts and agreements included in the Collateral and shall pay, perform and observe
all of its liabilities and obligations thereunder; (ii) Payee shall have no obligation to pay,
perform or observe any of Maker’s liabilities or obligations under such contracts and
agreements as a result of exercising its rights under this Agreement or otherwise; and (iii)
Payee’s exercise of its rights under this Agreement or otherwise shall not release Maker
from any of its liabilities or obligations under such contracts and agreements.
4. Addresses and Locations
. Maker represents and warrants that as of the date of this
Agreement (i) the address of Maker set forth on the signature page hereof is the address of Maker’s chief
executive office and the address at which Maker keeps all books and records (in whatever form or
medium, including all computer data, software and source codes) concerning the Collateral, and (ii) Cook
Islands is the jurisdiction of Maker’s incorporation.
5. Filing Requirements; Other Financing Statements
. Maker represents and warrants that as
of the date of this Agreement (i) none of its Collateral is covered by any certificate of title, and (ii) no
financing statements describing any portion of the Collateral have been filed in any jurisdiction except for
financing statements evidencing liens securing the Secured Obligations.
6. Rights in Collateral
.
(a) Maker represents, warrants and covenants that it has and shall have at all times
indefeasible title to all Collateral, free and clear of all liens, claims, charges and encumbrances
(except for liens securing the Secured Obligations), and Maker shall defend such title against the
claims and demands of all other Persons. Maker represents and warrants that this Agreement
creates a valid security interest in the Collateral which, upon due filing of proper financing
statements shall constitute a valid first priority perfected lien on and security interest in the
Collateral, subject only to liens securing the Secured Obligations and liens which are accorded
priority by statute.
(b) Except for expenditures of cash in the ordinary course of business or as otherwise
permitted under Section 3(a) of this Agreement, Maker shall not sell, transfer, assign, convey or
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otherwise dispose of,
or extend, amend, terminate or otherwise modify any material term or
provision of, any Collateral, any interest therein, nor waive or release any right with respect
thereto, without the prior written consent of Payee, which consent shall not be unreasonably
withheld, delayed or denied.
(c) Maker assumes full responsibility for taking any and all steps to preserve its
rights with respect to the Collateral against all prior parties. Payee shall be deemed to have
exercised reasonable care in the preservation and custody of the portion of the Collateral as may
be in Payee’s possession if Payee takes such action as Maker shall reasonably request in writing;
provided, such requested action shall not, in the judgment of Payee, impair Payee’s prior security
interest in such Collateral or its rights in or the value of such Collateral and, provided further, that
such written request is received by Payee in sufficient time to permit Payee to take the requested
action.
7. Records
. Maker shall at all times maintain reasonably accurate and complete records
with respect to each item and category of the Collateral.
8. Taxes and Charges
. Maker shall pay and discharge all taxes, levies and other impositions
levied on any Collateral, separate and apart from Maker’s other assets and in accordance with generally
accepted accounting principles, consistently applied, except only to the extent that such taxes, levies and
other impositions shall not then be due or shall be contested in good faith by appropriate proceedings
diligently conducted (provided, such reserves and other provisions as may be required by generally
accepted accounting principles have been duly made and recorded on Maker’s financial records). If
Maker shall fail to do so, Payee may (but shall not be obligated to) pay such taxes, levies or impositions
for the account of Maker (without waiving or releasing any obligation or default by Maker hereunder),
and the amount thereof shall be added to the Secured Obligations and shall be payable upon demand with
interest accruing thereon at the rate provided in the Settlement Agreement.
9. Inspection
. Payee and its officers, employees and agents, at Payee’s sole expense and in
no event more than one (1) time during any twelve-month period, shall have the right at all reasonable
times upon at least ten (10) business days prior written notice, to inspect the Collateral.
10. Preservation and Protection of Security Interest
. Maker shall diligently preserve and
protect Payee’s security interest in the Collateral and shall, at its expense, cause such security interest in
the Collateral to be perfected and continue perfected so long as the Secured Obligations or any portion
thereof are outstanding and unpaid, and for such purposes, Maker shall from time to time at Payee’s
written request and at Payee’s expense file or record, or cause to be filed or recorded, such instruments,
documents and notices (including, without limitation, financing statements and continuation statements)
as Payee may deem necessary or advisable from time to time to perfect and continue perfected such
security interests. Maker shall do all such other reasonable acts and things and shall execute and deliver
all such other instruments and documents (including, without limitation, further security agreements,
pledge agreements, pledges, endorsements, assignments and notices) as Payee may deem reasonably
necessary from time to time to perfect and preserve the priority of Payee’s security interest in the
Collateral, as a perfected security interest in the Collateral, prior to the rights of any other secured party or
lien creditor.
11. Remedy on Event of Default
. If any Event of Default shall occur and be continuing
beyond the expiration of any applicable notice and cure period, then Payee shall have the right to auction
the Collateral pursuant to Article 9 of the UCC; provided, auction shall occur only after notice and
advertising of any sale at public auction has been published for at least sixty (60) days in advance of the
sale date and notice must be provided to persons and entities as are required under Article 9 of the UCC
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for the conduct of a co
mmercially reasonable sale at public auction. Additionally, any such sale at public
auction must be conducted by one of the nationally recognized domain name auctioneers (or their
successors) listed on Schedule 1
attached hereto, to the extent that such auctioneers are then in existence
and in the business of conducting domain name auctions. If none of the auctioneers (or their respective
successors) listed on Schedule 1
are then in existence or will agree to conduct the sale on sixty (60) days
notice, then Payee must use such other auctioneer as would be required by Article 9 of the UCC for the
conduct of a commercially reasonable sale at public auction. In the event that a sale of the Collateral and
application of the Post-Default Deposits results in a surplus over and above the amount of the Deferred
Payment debt plus any fees and costs pursuant to Section 15(f) below, then such surplus shall be promptly
paid to Maker and, in the event that a sale of the Collateral results in a deficiency, then Payee shall have
recourse for such deficiency against Maker. To the extent that Payee seeks payment of the Additional
Payment debt from the Post-Default Deposits, Manila shall be liable to Maker for the amount of Post-
Default Deposits applied to the Additional Payment debt.
12. Agreement to Deposit Funds.
In the event of an uncured Additional Payment Default or a
default under Section 3(a) above, and upon written notice to Maker by Payee pursuant to the terms hereof,
and regardless of whether Maker contests whether such Additional Payment Default or other default
under Section 3(a) above has occurred or whether Maker asserts defenses to such alleged default, Maker
agrees and it shall deposit into the registry of the United States District Court for the Northern District of
Texas, all Post Default Deposits. Maker agrees and stipulates that its obligation to make the Post Default
Deposits, as described herein, shall be enforceable by injunctive relief without bond and without the need
for Payee to demonstrate irreparable injury, such injury being stipulated and agreed to herein, and
regardless of whether Maker asserts defenses to any of the defaults called by Payee hereunder. All
payments by Maker of the Post-Default Deposits shall be made within five (5) business days from the
date that they are received by Maker. The obligation to make Post Default Deposits and prohibition
against diverting revenues or traffic set forth in Section 6.c. of the Settlement Agreement shall be
enforceable by injunctive relief and based upon the stipulation and agreement of Maker that no bond shall
be required for such injunctive relief, and no showing of irreparable injury shall be required, such
irreparable injury being stipulated to by Maker herein.
13. Continuing Validity of Obligations
.
(a) Maker’s obligations hereunder shall continue in full force and effect as long as
the Secured Obligations or any part thereof remain outstanding and unpaid and shall remain in
full force and effect without regard to and shall not be released, discharged or in any way affected
by (i) any renewal, refinancing or refunding of the Secured Obligations in whole or in part, (ii)
any extension of the time of payment of any of the Secured Obligations or any part thereof, (iii)
any compromise or settlement with respect to the Secured Obligations or any part thereof, or any
forbearance or indulgence extended to Maker, (iv) any amendment to or modification of the terms
of the Secured Obligations or any part thereof, or the Settlement Agreement, (v) any substitution,
exchange or release of, or failure to preserve, perfect or protect, or other dealing in respect of, the
Collateral or any other property or any security for the payment of the Secured Obligations or any
part thereof, (vi) any bankruptcy, insolvency, arrangement, composition, assignment for the
benefit of creditors or similar proceeding commenced by or against Maker, or (vii) any other
matter or thing whatsoever whereby the agreements and obligations of Maker hereunder would or
might otherwise be released or discharged other than payment in full of the Secured Obligations.
Maker hereby waives notice of the acceptance of this Agreement by Payee.
(b) To the extent that Maker makes a payment or payments to Payee, which payment
or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to Maker or a trustee, receiver or any other party under any
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bankruptc
y law, state or federal law, common law or equitable cause of action, then, to the extent
of such payment, the Secured Obligations or portion thereof intended to be satisfied and this
Agreement shall be revived and continue in full force and effect, as if such payment had not been
received by such party.
14. Defeasance
. Upon payment in full of the Secured Obligations, this Agreement shall
terminate automatically and be of no further force and effect (except for the provisions of this Section 14
which shall survive), and in such event Payee shall, at Payee’s expense and without recourse,
representation or warranty, redeliver and reassign to Maker the Collateral and take all action necessary to
terminate Payee’s security interest in the Collateral. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
15. Amendments, Waivers, Notices, Governing Law, etc
.
(a) The provisions of this Agreement may be amended, modified and waived, but
only in writing by Maker and Payee.
(b) Except as expressly provided otherwise in this Agreement, all notices and other
communications hereunder shall be made as set forth in the Settlement Agreement.
(c) This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and either of the parties hereto may
execute this Agreement by signing any such counterpart.
(d) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF TEXAS, WITHOUT
GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR
RULE (WHETHER OF THE STATE OF TEXAS OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER
THAN THE STATE OF TEXAS.
(e) This Agreement is entered into in connection with and subject to the Settlement
Agreement. Notwithstanding any provision hereof to the contrary, in the event of any claimed
Event of Default hereunder, Maker reserves, and shall have, all rights, offsets, claims and
defenses to such claimed Event of Default which Maker is entitled to assert for any claimed
breach of the Settlement Agreement, to the same extent as if such provisions of the Settlement
Agreement had been expressly set forth herein.
(f) If any action is brought to enforce or interpret the terms of this Agreement
(including through arbitration), the prevailing party shall be entitled to reasonable legal fees, costs
and necessary disbursements in addition to any other relief to which such party may be entitled.
(g) The United States District Court for the Northern District of Texas, The
Honorable Royal Furgeson, shall have jurisdiction over any and all other disputes and/or
matters related to this Agreement, whether related to its consummation, implementation,
enforcement or otherwise.
(h) In the event of a monetary default hereunder, if a party fails to timely pay monies
due another party more than two (2) times in any twelve (12) month period, for each subsequent
default during the subject twelve (12) month period, the defaulting party shall pay the non-
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defaulting party
(ies) two hundred fifty dollars ($250), in the aggregate, as a penalty and not as
interest.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
_____________________________________________
DANIEL J. SHERMAN, Chapter 11 Trustee for
Ondova Limited Company
Address
:
Daniel J. Sherman, Trustee
509 N. Montclair Avenue
Dallas, Texas 75208
and
Raymond J. Urbanik
Munsch Hardt Kopf & Harr, P.C.
500 North Akard Street
Suite 3800
Dallas, Texas 75201-6659
THE VILLAGE TRUST
By: Asiatrust Limited, Its Trustee
By:__________________________________________
Name: _______________________________________
Title: ________________________________________
Address:
Asiatrust Limited
Level 2 BCI House
P.O. Box 822
Rarotonga
Cook Islands
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EXHIBIT G
Form Of Agreed Order
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
IN RE:
ONDOVA LIMITED COMPANY,
DEBTOR.
§
§
§
§
§
§
CASE NO. 09-34784-SGJ-11
CHAPTER 11
AGREED ORDER DIRECTING PAYMENT OF MONETIZATION FUNDS TO TRUSTEE
At Dallas, Texas, in said District, pursuant to the Order entered on July __, 2010 approving the
Trustee's Motion for Approval of Settlement Agreement Pursuant to Rule 9019, Federal Rules of
Bankruptcy Procedure ("Settlement Motion") filed on June __, 2010 by Daniel J. Sherman, Chapter 11
Trustee of Ondova Limited Company ("Trustee"), in the event of default of payment of the provisions of
the Mutual Settlement and Release Agreement executed on July 2, 2010 ("Settlement Agreement") the
Trustee is entitled to receive monetization funds from revenues generated from domain names directly
from hitfarm.com or any other monetizer used by the Village Trust, Javelina, LLC, Novo Point, LLC or
Diamond Key, LLC.
The Trustee has not received payments pursuant to the Settlement Agreement and accordingly,
hitfarm.com is directed to pay all monetizations from Novo Point, LLC, Javelina, LLC and Diamond
Key, LLC directly to Daniel J. Sherman in the amount of $_______________.
It is so ORDERED.
# # # END OF ORDER # # #
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AGREED TO
:
MUNSCH HARDT KOPF & HARR, P.C.
By:_______________________________
Raymond J. Urbanik
3800 Lincoln Plaza
500 N. Akard Street
Dallas, Texas 75201-6659
Telephone: (214) 855-7500
Facsimile: (214) 855-7584
ATTORNEYS FOR DANIEL J. SHERMAN,
CHAPTER 11 TRUSTEE
PRONSKE & PATEL
By:_______________________________
Gerrit M. Pronske
2200 Ross Avenue, Suite 5350
Dallas, Texas 75201
Telephone: (214) 658-6501
Facsimile: (214) 658-6509
ATTORNEYS FOR JEFF BARON
HOHMANN, TAUBE & SANDERS, LLP
By:_____________________________
Eric Taube
100 Congress Avenue, 18
th
Floor
Austin, Texas 75701
Telephone: (512) 472-5997
Facsimile: (512) 472-5248
ATTORNEYS FOR THE VILLAGE TRUST,
JAVELINA, LLC, NOVO POINT, LLC AND
DIAMOND KEY, LLC
a
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EXHIBIT H
Form of Agreed Order of Dismissal/Joint Stipulation in the Texas Case
CAUSE NO. 06-11717-C
ONDOVA LIMITED COMPANY, ET AL, § IN THE DISTRICT COURT
PLAINTIFFS, §
§
VS. § 68th JUDICIAL DISTRICT
§
MANILA INDUSTRIES, INC., ET AL, §
DEFENDANTS. § DALLAS COUNTY, TEXAS
STIPULATED DISMISSAL WITH PREJUDICE
Plaintiffs, Ondova Limited Company d/b/a Compana, LLC and Jeffrey Baron (collectively
“Plaintiffs”), filed the Complaint in Cause No. 06-11717-C against Defendants, Munish Krishan, Manila
Industries, Inc., Netsphere, Inc., HCB, LLC, Realty Investment Management, LLC, Simple Solutions,
LLC, Denis Kleinfeld, Four Points Management, LLLP and Marshden, LLC (collectively “Defendants”).
CK Ventures, Inc. d/b/a Hitfarm.com (“Hitfarm”) has intervened in this matter and Quantec LLC
(“Quantec”), Novo Point LLC (“Novo Point”), and Iguana Consulting LLC (“Iguana”) have sought to
intervene (Hitfarm, Quantec, Novo Point, and Iguana are herein collectively referred to as the
“Intervenors”). Plaintiffs have now agreed upon a resolution of this matter with Defendants and
Intervenors prior to a trial on the merits. Plaintiffs, Defendants and Intervenors hereby agree and it is
hereby ORDERED, ADJUDGED and DECREED as follows:
1. This Court has jurisdiction over the parties and subject matter of this action.
2. Any and all claims and counter-claims that have been or could have been
asserted by Plaintiffs, Defendants and Intervenors are dismissed with prejudice to the right of
Plaintiffs, Defendants and Intervenors to file or refile same or any part thereof against any and/or
all of the parties herein.
3. Each party shall bear its own costs and attorneys’ fees.
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4.
This Court shall retain jurisdiction for purposes of enforcing this order.
SO AGREED AND STIPULATED:
__________________________
Jeffrey Baron
Date: _____, 2010
Ondova Limited Company
By: Daystar Trust, Managing Member
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Ondova Chapter 11 Trustee
By: Daniel J. Sherman
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Quantec LLC
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Novo Point LLC
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Iguana Consulting LLC
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Netsphere, Inc.
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Manila Industries, Inc.
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
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____
______________________
Munish Krishan
Date: ______, 2010
CK Ventures, Inc. d/b/a Hitfarm.com
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
HCB, LLC
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Realty Investment Management, LLC
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Simple Solutions, LLC
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Four Points Management, LLLP
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Marshden, LLC
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
__________________________
Denis Kleinfeld
Date: ______, 2010
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SO ORDERED:
Signed ___________, 2010.
HONORABLE DISTRICT COURT JUDGE
MARTIN HOFFMAN
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EXHIBIT I
Form of Agreed Order of Dismissal/Joint Stipulation in the VI Case
IN THE DISTRICT COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN
SIMPLE SOLUTIONS, LLC, )
)
Plaintiff, ) No. 3:07-CV-123
)
v. ) ACTION FOR BREACH OF CONTRACT,
) BREACH OF FIDUCIARY DUTY, AND
ONDOVA LIMITED CO., LLC, d/b/a ) FRAUD
COMPANA, LLC, )
)
Defendant. )
____________________________________)
STIPULATED DISMISSAL WITH PREJUDICE
Plaintiff, Simple Solutions, LLC, filed the Complaint in Civil No. 3:07-CV-123 against Defendant,
Ondova Limited Company d/b/a Compana, LLC. Plaintiff has now agreed upon a resolution of this matter
with Defendant prior to a trial on the merits. Plaintiff and Defendant hereby agree and it is hereby
ORDERED, ADJUDGED and DECREED as follows:
1. This Court has jurisdiction over the parties and subject matter of this action.
2. Any and all claims and counter-claims that have been or could have been asserted by
Plaintiff and Defendant are dismissed with prejudice to the right of Plaintiff and Defendant to file or refile
same or any part thereof against any and/or all of the parties herein.
4. Each party shall bear its own costs and attorneys’ fees.
5. This Court shall retain jurisdiction for purposes of enforcing this order.
Exhibit I-1
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SO AGREE
D AND STIPULATED:
imple Solutions, LLC
igned:___________________________
ame:____________________________
itle:_____________________________
ate: _________, 2010
ndova Limited Company
y: Daystar Trust, Managing Member
igned:___________________________
ame:____________________________
itle:_____________________________
ate: _________, 2010
ndova Chapter 11 Trustee
y: Daniel J. Sherman
igned:___________________________
ame:____________________________
itle:_____________________________
ate: _________, 2010
SO ORDERED:
Signed ___________, 2010.
_________________________________________
THE HONORABLE GEOFFREY W. BARNARD
U.S. MAGISTRATE JUDGE
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EXHIBIT J
Form of Joint Motion to Stay Proceedings in the Phonecards.com Case
CAUSE NO. DC08-13925-C
EQUITY TRUST COMPANY, f/k/a §
Mid Ohio Securities, Custodian FBO § IN THE DISTRICT COURT OF
IRA 19471, and JEFFREY BARON, §
As Beneficiary of Equity Trust Company §
FBO IRA 19471, §
§
Plaintiffs, §
§
vs. § DALLAS COUNTY, TEXAS
§
ROHIT KRISHAN, Individually and d/b/a §
CallingCards.com, MUNISH KRISHAN §
Individually and d/b/a CallingCards.com, §
MANOJ KRISHAN, Individually and d/b/a §
CallingCards.com, and §
CALLINGCARDS.COM, LLC §
§ 68TH JUDICIAL DISTRICT
Defendants. §
JOINT NONSUIT FOR DISMISSAL WITH PREJUDICE
TO THE HONORABLE JUDGE MARTIN HOFFMAN:
Plaintiffs Equity Trust Company, f/k/a Mid Ohio Securities, Custodian FBO IRA 19471, and
Jeffrey Baron, as Beneficiary of Equity Trust Company FBO 19471 and Defendants Rohit Krishan,
individually and d/b/a Callingcards.com, Munish Krishan, Manoj Krishan and Callingcards.com, LLC,
pursuant to T
EX. R. CIV. P. 162, hereby notify the Court of Plaintiffs’ Dismissal and Nonsuit with
Prejudice of any and all claims brought or that could have been brought against Defendants in the above
styled case in the 68
th
Judicial District of Dallas County, Texas. Defendants also, pursuant to Rule 162,
hereby notify this Court of Defendants’ Dismissal and Nonsuit with Prejudice of any and all claims
brought or that could have been brought against the Plaintiffs in this matter.
This Joint Nonsuit for Dismissal with Prejudice becomes effective immediately upon filing of this
notice, and requires no intervention by this Court.
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Respectfully
submitted,
By: _____________________________
Mark L. Taylor
State Bar No. 00792244
Amy A. Johnson
State Bar No. 24060024
CASH POWERS TAYLOR L.L.P.
8150 North Central Expressway, Suite 1575
Dallas, Texas 75206
Telephone: (214) 239-8900
Facsimile: (214) 239-8901
ATTORNEYS FOR PLAINTIFFS
B
OYARMILLER
By: _____________________________
Lee A. Collins
State Bar No. 00790484
Craig Dillard
State Bar No. 24040808
4265 San Felipe Road, Suite 1200
Houston, Texas 77027
Telephone: (713) 850-7766
Facsimile: (713)552-1758
And
L
OCKE LORD BISSELL & LIDELL LLP
By:
John W. MacPete
State Bar No. 00791156
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
Telephone: (214) 740-8662
Facsimile: (214) 756-8662
COUNSEL FOR DEFENDANTS MANOJ
KRISHAN, MUNISH KRISHAN, ROHIT
KRISHAN, INVIDUALLY AND DBA
CALLINGCARDS.COM, AND
CALLINGCARDS.COM, LLC
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served, pursuant to
T
EX. R. CIV. P. 21 and 21a, on this the __ day of _______ 2010 on the following:
Via Fax
Mark Taylor
Amy Johnson
Cash Powers Taylor LLP
8150 North Central Expressway, Suite 1575
Dallas, Texas 75206
Fax: (214) 239-8901
Via Certified Mail, Return Receipt Requested
Jeffrey Hall
7242 Main St.
Frisco, TX 75034
Via Fax
John W. MacPete
LOCKE LORD BISSELL & LIDDELL LLP
2200 Ross Avenue, Suite 2200
Dallas, Texas 75201
Fax: (214) 756-8662
___________________________
John W. MacPete
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EXHIBIT K
Form of Agreed Order of Dismissal/Joint Stipulation in the Dallas Federal Case
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NETSPHERE, INC., et al.,
Plaintiffs,
§
§
§
§
§
§
vs. § CIVIL ACTION NO.
§ 3-09CV0988-F
JEFFREY BARON, et. al.,
Defendants.
§
§
§
§
STIPULATED DISMISSAL WITH PREJUDICE
Plaintiffs, Netsphere, Inc., Manila Industries, Inc. and Munish Krishan (collectively “Plaintiffs”),
filed the Complaint in Civil No. 3-09-CV-0988-F against Defendants, Jeffrey Baron and Ondova Limited
Company d/b/a Compana, LLC (collectively “Defendants”). Charla Aldous (“Aldous”) and Jeffrey
Rasansky (“Rasansky”) have intervened in this matter and Quantec LLC (“Quantec”), Novo Point LLC
(“Novo Point”), and Iguana Consulting LLC (“Iguana”) have sought to intervene (Aldous, Rasansky,
Quantec, Novo Point, and Iguana are herein collectively referred to as the “Intervenors”). Plaintiffs have
now agreed upon a resolution of this matter with Defendants and Intervenors prior to a trial on the merits.
Plaintiffs, Defendants and Intervenors hereby agree and it is hereby ORDERED, ADJUDGED and
DECREED as follows:
1. This Court has jurisdiction over the parties and subject matter of this action.
2. Any and all claims and counter-claims that have been or could have been asserted by
Plaintiffs, Defendants and Intervenors are dismissed with prejudice to the right of Plaintiffs,
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Defendants and Interven
ors to file or refile same or any part thereof against any and/or all of the
parties herein.
4. Each party shall bear its own costs and attorneys’ fees.
5. This Court shall retain jurisdiction for purposes of enforcing this order.
SO AGREED AND STIPULATED:
Netsphere, Inc.
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Manila Industries, Inc.
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
__________________________
Munish Krishan
Date: ______, 2010
__________________________
Jeffrey Baron
Date: _____, 2010
Ondova Limited Company
By: Daystar Trust, Managing Member
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Ondova Chapter 11 Trustee
By: Daniel J. Sherman
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Quantec LLC
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
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Novo Point LLC
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
Iguana Consulting LLC
Signed:___________________________
Name:____________________________
Title:_____________________________
Date: _________, 2010
__________________________
Charla Aldous
Date: _____, 2010
__________________________
Jeffrey Rasansky
Date: _____, 2010
SO ORDERED:
Signed ___________, 2010.
THE HONORABLE W. ROYAL FURGESON, JR.
U.S. DISTRICT COURT JUDGE
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EXHIBIT L
Form of CC Assignment
PHONECARDS.COM ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT (“Agreement
”) is dated as of ____________, 2012, from
CallingCards.com, LLC (“Assignor
”), to Equity Trust Company (“Assignee”).
1. Assignor hereby assigns to Assignee, and Assignee hereby accepts from Assignor, all of
the right, title and interest that Assignor possesses and has the right to assign in the domain name
PHONECARDS.COM in exchange for Assignee’s payment of Ten Thousand Dollars ($10,000.00 U.S.),
in certified funds, which is tendered concurrently herewith.
2. Assignor will take such additional steps necessary, if any, to vest in Assignee all right,
title and interest of Assignor in and to the domain name PHONECARDS.COM, and otherwise to carry
out the purpose and intent of this Agreement.
3. This Agreement may be signed in counterparts. A facsimile copy or an electronic image
of a signed counterpart shall be deemed to be equivalent to a signed original.
IN WITNESS WHEREOF, Assignor and Assignee have caused this Agreement to be executed
and delivered on the date first above written.
ASSIGNOR: ASSIGNEE:
CallingCards.com, LLC Equity Trust Company
By: ______________________ By: __________________________
Name: ____________________ Name: ________________________
Title: _____________________ Title: _________________________
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EXHIBIT M
Form of Dauben Disclaimer of Interest
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY
REMOVE OR STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS
INSTRUMENT BEFORE IT IS FILED FOR RECORD IN THE PUBLIC RECORDS: YOUR
SOCIAL SECURITY NUMBER OR YOUR DRIVER’S LICENSE NUMBER.
DISCLAIMER OF INTEREST
STATE OF TEXAS §
§ KNOW ALL THESE PRESENTS:
COUNTY OF DALLAS §
Joey Dauben, on behalf of himself, Dauben, Inc., d/b/a Texas International Property Associates
and Privacy Protection Services, Inc., d/b/a Oakwood Services, Inc., and his and their respective affiliates
hereby disclaims any interest in the property described below:
1. Even Group Portfolio (as defined in Paragraph 3 of the Preliminary Injunction
) and the
domain names in the Restore List (as defined in Paragraph 5(e) of the Preliminary Injunction);
2. Odd Group Portfolio (as defined in Paragraph 3 of the Preliminary Injunction
) and the
domain names in the Allocated Names List (as defined in Paragraph 5(d) of the Preliminary Injunction);
and
3. Blue Horizon Portfolio, meaning all domain names that previously were registered
through Ondova Limited Company, exclusive of the Even Group Portfolio, the Odd Group Portfolio and
any domain name not registered through or at Ondova Limited Company as of February 22, 2010, and
exclusive of the domain names Pokerstar.com, Servers.com, and the Excluded Disputed Domains
(defined below).
4. The following domain names: Pokerstar.com, Servers.com, and the Excluded Disputed
Domains (defined as the list of twelve (12) domain names in an e-mail from Raymond J. Urbanik to
Gerrit Pronske on June 2, 2010).
SIGNED on the date acknowledged below.
______________________________________
JOEY DAUBEN
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STATE OF TEXAS §
§
COUNTY OF DALLAS §
This instrument was acknowledged before me on ________, 2010, by Joey Dauben.
______________________________________
Notary Public State of Texas
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EXHIBIT N
Form of Rescission/Quitclaim Agreement (Quantec LLC and Iguan
a Consulting LLC)
RESCISSION AGREEMENT
This Rescission Agreement (this “Agreement
”) is made this ___ day of _______, 2010 among
Quantec LLC, a Cook Islands limited liability company (“Quantec LLC
”), Iguana Consulting LLC, a Cook
Islands limited liability company (“Iguana Consulting LLC
”), and Asiatrust Limited as Trustee of the
MMSK Trust, a trust organized and established under the laws of the Cook Islands (“Asiatrust”).
RECITALS
A. On or about July 6, 2009, Asiatrust purported to transfer, by operation of law or
otherwise, to Quantec LLC 293.25 shares of the capital stock of Quantec, Inc., a United States Virgin
Islands corporation (the “Quantec Shares
”) in consideration of the purported issuance by Quantec LLC to
Asiatrust of membership interests in Quantec LLC (the “Quantec LLC Interests
”).
B. On or about July 6, 2009, Asiatrust purported to transfer, by operation of law or
otherwise, to Iguana Consulting LLC 293.25 shares of the capital stock of Iguana Consulting, Inc., a
United States Virgin Islands corporation (the “Iguana Shares
.”) in consideration of the purported issuance
by Iguana Consulting LLC to Asiatrust of membership interests in Iguana Consulting LLC (the “Iguana
Consulting LLC Interests”).
C. Asiatrust, Quantec LLC and Iguana Consulting LLC desire to rescind the purported transfer
of the Quantec Shares and the Iguana Shares and the purported issuance of the Quantec LLC Interests and the
Iguana Consulting LLC Interests and to reinstate Asiatrust’s ownership of the Quantec Shares and the Iguana
Shares as if such purported transfer and issuance had never happened.
AGREEMENT
In consideration of the mutual covenants set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Quantec LLC, Iguana
Consulting LLC and Asiatrust hereby agree as follows:
1. Rescission of Share Transfer
. Quantec LLC and Asiatrust mutually agree that the purported
transfer, by operation of law or otherwise, of the Quantec Shares from Asiatrust to Quantec LLC is hereby
rescinded and shall be treated as if such transfer never occurred. Iguana Consulting LLC and Asiatrust
mutually agree that the purported transfer, by operation of law or otherwise, of the Iguana Shares from
Asiatrust to Iguana Consulting LLC is hereby rescinded and shall be treated as if such transfer never
occurred. Quantec LLC expressly quitclaims to Asiatrust and disavows all rights of every kind, nature and
description, if any, it may have, or ever had, in and to all rights related to the Quantec Shares, including,
without limitation, property rights, contract rights, copyright interests and any other intellectual property
interests, the value of goodwill, and any income that may be derived from and after July 6, 2009 from the
Quantec Shares. Iguana Consulting LLC expressly quitclaims to Asiatrust and disavows all rights of every
kind, nature and description, if any, it may have, or ever had, in and to all rights related to the Iguana Shares,
including, without limitation, property rights, contract rights, copyright interests and any other intellectual
property interests, the value of goodwill, and any income that may be derived from and after July 6, 2009
from the Iguana Shares.
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2. R
escission of Membership Interest Issuance
. Quantec LLC and Asiatrust mutually agree
that the purported issuance of the Quantec LLC Interests to Asiatrust is hereby rescinded and shall be treated
as if such issuance never occurred. Quantec LLC and Asiatrust further agree that Asiatrust shall not be
treated as ever having been a member of, or owner of any equity interests in, Quantec LLC. Iguana
Consulting LLC and Asiatrust mutually agree that the purported issuance of the Iguana Consulting Interests
to Asiatrust is hereby rescinded and shall be treated as if such issuance never occurred. Iguana Consulting
LLC and Asiatrust further agree that Asiatrust shall not be treated as ever having been a member of, or owner
of any equity interests in, Iguana Consulting LLC.
3. Further Actions
. Each of Quantec LLC, Iguana Consulting LLC and Asiatrust shall
execute all such additional documents and take all such further action as may be necessary or desirable to
effect any of the purposes of, or to reflect any of the actions taken in, this Agreement.
4. Binding Effect
. This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties hereto.
5. Amendments, Waivers, Counterparts, Jurisdiction, etc.
(a) The provisions of this Agreement may be amended, modified and waived, but
only in writing by each party hereto.
(b) This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument and either of the parties hereto may
execute this Agreement by signing any such counterpart.
(c) If any action is brought to enforce or interpret the terms of this Agreement
(including through arbitration), the prevailing party shall be entitled to reasonable legal fees, costs
and necessary disbursements in addition to any other relief to which such party may be entitled.
(d) The United States District Court for the Northern District of Texas, The
Honorable Royal Furgeson, shall have jurisdiction over any and all other disputes and/or matters
related to this Agreement, whether related to its consummation, implementation, enforcement or
otherwise.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date
first written above.
QUANTEC LLC
By: Novquant, LLC, Manager
By: _________________________________________
Name: _______________________________________
Title: ________________________________________
IGUANA CONSULTING LLC
By: Novquant, LLC, Manager
By: _________________________________________
Name: _______________________________________
Title: ________________________________________
THE MMSK TRUST
By: Asiatrust Limited, Its Trustee
By: _________________________________________
Name: _______________________________________
Title: ________________________________________
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EXHIBIT O
Form of MMSK Trust Assignments
ST
OCK POWER
FOR VALUE RECEIVED, the undersigned hereby assigns, and transfers unto [____________], a
Cook Islands limited liability company, all right, title and interest of the undersigned, beneficially and/or of
record, in and to 293.25 shares of the common stock of Quantec, Inc. represented by certificate No. 2, and
does hereby irrevocably constitute and appoint ___________________ as the undersigned’s attorney, to
transfer said stock on the books of Quantec, Inc. with full power of substitution in the premises.
Dated: _________, 2010
THE MMSK TRUST
By: Asiatrust Limited, Its Trustee
By: _________________________________________
Name: _______________________________________
Title: ________________________________________
IN THE PRESENCE OF:
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STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby assigns, and transfers unto [____________], a
Cook Islands limited liability company, all right, title and interest of the undersigned, beneficially and/or of
record, in and to 293.25 shares of the common stock of Iguana Consulting, Inc. represented by certificate
No. 8, and does hereby irrevocably constitute and appoint ___________________ as the undersigned’s
attorney, to transfer said stock on the books of Iguana Consulting, Inc. with full power of substitution in the
premises.
Dated: _________, 2010
THE MMSK TRUST
By: Asiatrust Limited, Its Trustee
By: _________________________________________
Name: _______________________________________
Title: ________________________________________
IN THE PRESENCE OF:
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EX
HIBIT P
Form of Manila Related Parties’ Assignments
STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby assigns, and transfers unto [____________], a
Cook Islands limited liability company, all right, title and interest of the undersigned, beneficially and/or of
record, in and to 114.25 shares of the common stock of Quantec, Inc. represented by certificate No. 9, and
does hereby irrevocably constitute and appoint ___________________ as the undersigned’s attorney, to
transfer said stock on the books of Quantec, Inc. with full power of substitution in the premises.
Dated: _________, 2010
____________________________________________
Biju Mathew
IN THE PRESENCE OF:
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ST
OCK POWER
FOR VALUE RECEIVED, the undersigned hereby assigns, and transfers unto [____________], a
Cook Islands limited liability company, all right, title and interest of the undersigned, beneficially and/or of
record, in and to 45 shares of the common stock of Quantec, Inc. represented by certificate No. 10, and
does hereby irrevocably constitute and appoint ___________________ as the undersigned’s attorney, to
transfer said stock on the books of Quantec, Inc. with full power of substitution in the premises.
Dated: _________, 2010
____________________________________________
Amir Asad
IN THE PRESENCE OF:
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ST
OCK POWER
FOR VALUE RECEIVED, the undersigned hereby assigns, and transfers unto [____________], a
Cook Islands limited liability company, all right, title and interest of the undersigned, beneficially and/or of
record, in and to 40 shares of the common stock of Quantec, Inc. represented by certificate No. 11, and
does hereby irrevocably constitute and appoint ___________________ as the undersigned’s attorney, to
transfer said stock on the books of Quantec, Inc. with full power of substitution in the premises.
Dated: _________, 2010
____________________________________________
Rohit Krishan
IN THE PRESENCE OF:
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ST
OCK POWER
FOR VALUE RECEIVED, the undersigned hereby assigns, and transfers unto [____________], a
Cook Islands limited liability company, all right, title and interest of the undersigned, beneficially and/or of
record, in and to 5 shares of the common stock of Quantec, Inc. represented by certificate No. 12, and does
hereby irrevocably constitute and appoint ___________________ as the undersigned’s attorney, to transfer
said stock on the books of Quantec, Inc. with full power of substitution in the premises.
Dated: _________, 2010
____________________________________________
Manish Aggarwal
IN THE PRESENCE OF:
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EXECUTION VERSION
ST
OCK POWER
FOR VALUE RECEIVED, the undersigned hereby assigns, and transfers unto [____________], a
Cook Islands limited liability company, all right, title and interest of the undersigned, beneficially and/or of
record, in and to 2.5 shares of the common stock of Quantec, Inc. represented by certificate No. 13, and
does hereby irrevocably constitute and appoint ___________________ as the undersigned’s attorney, to
transfer said stock on the books of Quantec, Inc. with full power of substitution in the premises.
Dated: _________, 2010
____________________________________________
Amer Zaveri
IN THE PRESENCE OF:
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ST
OCK POWER
FOR VALUE RECEIVED, the undersigned hereby assigns, and transfers unto [____________], a
Cook Islands limited liability company, all right, title and interest of the undersigned, beneficially and/or of
record, in and to 114.25 shares of the common stock of Iguana Consulting, Inc. represented by certificate
No. 3, and does hereby irrevocably constitute and appoint ___________________ as the undersigned’s
attorney, to transfer said stock on the books of Iguana Consulting, Inc. with full power of substitution in the
premises.
Dated: _________, 2010
____________________________________________
Biju Mathew
IN THE PRESENCE OF:
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ST
OCK POWER
FOR VALUE RECEIVED, the undersigned hereby assigns, and transfers unto [____________], a
Cook Islands limited liability company, all right, title and interest of the undersigned, beneficially and/or of
record, in and to 45 shares of the common stock of Iguana Consulting, Inc. represented by certificate No.
4, and does hereby irrevocably constitute and appoint ___________________ as the undersigned’s attorney,
to transfer said stock on the books of Iguana Consulting, Inc. with full power of substitution in the premises.
Dated: _________, 2010
____________________________________________
Amir Asad
IN THE PRESENCE OF:
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ST
OCK POWER
FOR VALUE RECEIVED, the undersigned hereby assigns, and transfers unto [____________], a
Cook Islands limited liability company, all right, title and interest of the undersigned, beneficially and/or of
record, in and to 40 shares of the common stock of Iguana Consulting, Inc. represented by certificate No.
5, and does hereby irrevocably constitute and appoint ___________________ as the undersigned’s attorney,
to transfer said stock on the books of Iguana Consulting, Inc. with full power of substitution in the premises.
Dated: _________, 2010
____________________________________________
Rohit Krishan
IN THE PRESENCE OF:
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ST
OCK POWER
FOR VALUE RECEIVED, the undersigned hereby assigns, and transfers unto [____________], a
Cook Islands limited liability company, all right, title and interest of the undersigned, beneficially and/or of
record, in and to 5 shares of the common stock of Iguana Consulting, Inc. represented by certificate No. 8,
and does hereby irrevocably constitute and appoint ___________________ as the undersigned’s attorney, to
transfer said stock on the books of Iguana Consulting, Inc. with full power of substitution in the premises.
Dated: _________, 2010
____________________________________________
Manish Aggarwal
IN THE PRESENCE OF:
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STOCK POWER
FOR VALUE RECEIVED, the undersigned hereby assigns, and transfers unto [____________], a
Cook Islands limited liability company, all right, title and interest of the undersigned, beneficially and/or of
record, in and to 2.5 shares of the common stock of Iguana Consulting, Inc. represented by certificate No.
9, and does hereby irrevocably constitute and appoint ___________________ as the undersigned’s attorney,
to transfer said stock on the books of Iguana Consulting, Inc. with full power of substitution in the premises.
Dated: _________, 2010
____________________________________________
Amer Zaveri
IN THE PRESENCE OF:
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EXHIBIT Q
RESIGNATION OF PROTECTOR AND APPOINTMENT OF SUCCESSOR
PROTECTOR OF THE MMSK TRUST
WHEREAS, on December 30, 2005, Munish and Seema Krishan, as Settlors, Asiatrust Limited,
as Trustee, and PN Management Limited, as Protector, executed that certain Trust Deed (the “Trust
Deed”) establishing a trust to be known as The MMSK Trust (the “Trust’);
WHEREAS, PN Management Limited is currently serving as Protector of the Trust;
WHEREAS, Article V.A. of the Trust Deed provides that the Protector may appoint a successor
Protector of the Trust;
WHEREAS, Article V.C. of the Trust Deed provides that the Protector may resign at any time by
delivering written notice to the Trustee, which resignation shall be effective at the time or under the
conditions specified in such instrument;
WHEREAS, Article III.G. of the Trust Deed provides that a resigning Trustee shall be entitled to
require from each continuing Trustee or successor Trustee an indemnity as described in Article XIX of
the Trust Deed;
WHEREAS, Article V.D. of the Trust Deed provides that the Protector shall have the benefit of
the same indemnities, protections, and exculpations as conferred on the Trustee by the operation of law or
under the terms of the Trust Deed;
WHEREAS, PN Management Limited wishes to appoint a successor Protector of the Trust;
WHEREAS, PN Management Limited (hereafter, the “Resigning Protector
”) wishes to resign as
Protector of the Trust by giving written notice to the Trustee and to be discharged from the trusts and
powers of the Trust upon being indemnified as provided herein.
NOW, THEREFORE, the parties agree to the following:
1. The Resigning Protector does hereby appoint Cook Islands Trust Protectors Limited
as successor protector (the “Successor Protector
”) to exercise all powers and discretions granted to the
Protector under the Trust Deed.
2. By its signature hereto, the Successor Protector does hereby covenant and agree, in its
capacity as Protector of the Trust, to perform the obligations of the Trust pursuant to the Settlement
Agreement.
3. Pursuant to Article V.D., Article III.G. and Article XIX of the Trust Deed, the Trustee
hereby covenants with the Resigning Protector and its directors and officers and its successors in title at
all times fully and effectually (but subject as provided below) to indemnify the Resigning Protector and
its directors and officers and its successors in title against any and all liabilities, actions, proceedings,
claims, demands, taxes, and duties (including all associated interests, penalties, and costs) and all costs,
expenses, and other liabilities of whatsoever nature for and in respect of which the Resigning Protector
may be or become liable as protector or former protector of the Trust (the “Liabilities
”), PROVIDED
THAT the liability of the Trustee under the above indemnity shall not extend to the Liabilities that arise
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EXECUTION VERSION
from
the Resigning Protector’s own fraud, willful misconduct, or gross negligence, and PROVIDED
FURTHER THAT the liability of the Trustee under the above indemnity shall be limited to the Resigning
Protector’s right of indemnity against the Trust Property provided under the Trust Deed and shall extend
only to the Liabilities in respect of which the Resigning Protector would have been entitled to
reimbursement out of the property of the Trust had it remained protector of the Trust on its present terms.
4. The Resigning Protector is hereby released from all liabilities, undertakings, and
obligations of any kind under the Trust or under law insofar as such liabilities, undertakings, and
obligations relate to the Trust Property.
5. The Resigning Protector does hereby resign as Protector of the Trust.
6. This document shall take effect upon the date on which the last of the undersigned parties
executes this document.
7. In this document where the context allows words and expressions shall bear the same
meanings as in the Trust Deed.
8. This document may be executed in any number of counterparts, each of which when so
executed and delivered shall constitute an original, but such counterparts together shall constitute one and
the same document.
9. This document shall be governed by, and construed in accordance with the laws of, the
Cook Islands.
RESIGNING PROTECTOR
:
PN MANAGEMENT LIMITED
By:
Print Name:
Date
Title:
SUCCESSOR PROTECTOR
:
COOK ISLANDS TRUST PROTECTORS LIMITED
By:
Print Name:
Date
Title:
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Joinder Agreement
WHEREAS, the Trust (as defined above) is a party to that certain Mutual Settlement and Release
Agreement by and among Munish Krishan, et al, initially approved by the United States Bankruptcy
Court for the Northern District of Texas, Dallas Division Bankruptcy, in Case No. 09-34784-SGJ-11 on
June 22, 2010 (the “Settlement Agreement”); and
WHEREAS, in connection with the Settlement Agreement and the subject appointment, PN
Management Limited desires for Cook Islands Trust Protectors Limited to (i) acknowledge receipt of a
copy of the Settlement Agreement, and (ii) in its capacity as Protector of the Trust, agree to perform the
obligations of the Trust pursuant to the Settlement Agreement;
NOW, THEREFORE, Cook Islands Trust Protectors Limited hereby: (i) acknowledges receipt of
a copy of the Settlement Agreement; and (ii) covenants and agrees, in its capacity as successor Trustee of
the Trust, to perform the obligations of the Trust pursuant to the Settlement Agreement.
COOK ISLANDS TRUST PROTECTORS LIMITED
By:
Print Name:
Date
Title:
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EXHIBIT R
Form of PN Management Limited Resignation
Form of Asiatrust Resignation
RESIGNATION OF TRUSTEE and APPOINTMENT OF SUCCESSOR TRUSTEE
OF THE MMSK TRUST
WHEREAS, on December 30, 2005, Munish and Seema Krishan, as Settlors (the “Settlors”),
Asiatrust Limited, as Trustee (“Asiatrust
”), and PN Management Limited, as Protector (the “Protector”),
executed that certain Trust Deed (the “Trust Deed
”) establishing a trust to be known as The MMSK Trust
(the “Trust’
);
WHEREAS, Article III.C. of the Trust Deed provides that the Trustee may resign at any time by
providing written notice addressed to the Protector;
WHEREAS, Article III.B.3. of the Trust Deed gives the Protector the power to appoint a
successor Trustee, whether within or without the Cook Islands, as Trustee of the Trust;
WHEREAS, Article III.G. of the Trust Deed provides that without prejudice to any other right
conferred by law a resigning Trustee shall be entitled to require from each continuing Trustee or
successor Trustee an indemnity as described in Article XIX of the Trust Deed;
WHEREAS, Asiatrust desires to resign as Trustee of the Trust (the “Resigning Trustee
”) by
giving written notice to the Protector and to be discharged from the trusts and powers of the Trust upon
being indemnified as provided herein; and
NOW, THEREFORE, the parties hereto agree to the following:
1. Asiatrust does hereby provide written notice to the Protector that it resigns as Trustee of
the Trust and Asiatrust is hereby discharged from all or any of the trusts and powers reposed in or
conferred on it under the Trust Deed.
2. PN Management Limited, as Protector, does hereby appoint GCSL Trustees Limited as
successor Trustee of the Trust (the “Successor Trustee
”), to exercise all powers and discretions granted to
the Trustee under the Trust Deed.
3. GCSL Trustees Limited does hereby accept its appointment as successor Trustee of the
Trust and hereby covenants with the Resigning Trustee and its directors and officers and its successors in
title at all times fully and effectually (but subject as provided below) to indemnify the Resigning Trustee
and its directors and, officers, and its successors in title against any and all liabilities, actions,
proceedings, claims, demands, taxes, and duties (including all associated interests, penalties, and costs)
and all costs, expenses and other liabilities of whatsoever nature for and in respect of which the Resigning
Trustee may be or become liable as trustee or former trustee of the Trust (the “Liabilities
”), PROVIDED
THAT the Liabilities of the Successor Trustee under the above indemnity shall not extend to the liabilities
that arise from the Resigning Trustee’s own fraud, willful misconduct, or gross negligence, and
PROVIDED FURTHER THAT the liability of the Successor Trustee under the above indemnity shall be
limited to its right of indemnity against the Trust Property provided under the Trust Deed and shall extend
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onl
y to the Liabilities in respect of which the Resigning Trustee would have been entitled to
reimbursement out of the property of the Trust had it remained trustee of the Trust on its present terms.
4. The Resigning Trustee is hereby released from all liabilities, undertaking and obligations
of any kind under the Trust or under law insofar as such liabilities, undertakings and obligations related to
the Trust Property.
5. The provisions of this document shall take effect upon the date on which the last of the
undersigned parties executes this document (the “Effective Date
”), at which time the Trust Property shall
vest in the Successor Trustee. The Resigning Trustee, pursuant to Article lll.E. of the Trust Deed, hereby
covenants with the Successor Trustee to execute all documents and take such other action as may be
reasonably necessary or desirable to transfer the Trust Property to the Successor Trustee as soon as
possible after the Effective Date.
6. In this document where the context allows words and expressions shall bear the same
meanings as in the Trust Deed.
7. This document may be executed in any number of counterparts, each of which when so
executed and delivered shall constitute an original, but such counterparts together shall constitute one and
the same document.
8. This document shall be governed by and construed in accordance with the laws of the
Cook Islands.
RESIGNING TRUSTEE
ASIATRUST LIMITED
By:
Print name:
Date
Title:
SUCCESSOR TRUSTEE
Appointment Accepted
GCSL TRUSTEES LIMITED
By:
Print name:
Date
Title:
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EXECUTION VERSION
ACKNOWL
EDGED
PN MANAGEMENT LIMITED,
Protector of The MMSK Trust
By:
Print name:
Date
Title:
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Joinder Agreement
WHEREAS, the Trust is a party to that certain Mutual Settlement and Release Agreement by and
among Munish Krishan, et al, initially approved by the United States Bankruptcy Court for the Northern
District of Texas, Dallas Division Bankruptcy, in Case No. 09-34784-SGJ-11 on June 22, 2010 (the
“Settlement Agreement”); and
WHEREAS, in connection with the Settlement Agreement and the subject appointment, the
Protector (as defined above) desires for GCSL Trustees Limited to (i) acknowledge receipt of a copy of
the Settlement Agreement; and (ii) in its capacity as successor Trustee of the Trust.
, agree to perform the
obligations of the Trust pursuant to the Settlement Agreement;
NOW, THEREFORE, GCSL Trustees Limited hereby: (i) acknowledges receipt of a copy of the
Settlement Agreement; and (ii) covenants and agrees, in its capacity as successor Trustee of the Trust, to
perform the obligations of the Trust pursuant to the Settlement Agreement.
GCSL TRUSTEES LIMITED
By:
Print name:
Date
Title:
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EXHIBIT S
Form of Order
Order for Maintenance of Records Produced in Litigation
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
NETSPHERE, INC., et al.,
Plaintiffs,
§
§
§
§
§
§
vs. §
§
JEFFREY BARON and
ONDOVA LIMITED COMPANY,
et. al.,
Defendants.
§
§
§
§
CIVIL ACTION NO. 3-09-CV-0988-F
AGREED ORDER RE: MAINTENANCE OF RECORDS PRODUCED IN LITIGATION
In accordance with the Mutual Settlement and Release Agreement (“Settlement Agreement
”)
entered into on or about July 2, 2010, and submitted in the matter styled In re Ondova Limited Company
d/b/a Compana, LLC, Bankruptcy Case No. 09-34784-SGJ-11, in the United States Bankruptcy Court for
the Northern District of Texas, Dallas Division, the parties hereby agree as follows:
Gardere Wynne shall maintain, as confidential information, copies of the imaged
computers produced to Special Master Peter Vogel by Equivalent Data and any copies
which are currently in Equivalent Data’s possession during the term of the Pokerstar
License Agreement, and shall not allow any Party or third party access to such copies of
imaged computers, except pursuant to legal process; provided, however that Gardere
Wynne shall provide Jeffrey Baron, Ondova and Manila Industries, Inc., with notice with
reasonable opportunity to object prior to any such disclosure. Upon the termination or
expiration of the license agreement, Gardere Wynne shall destroy all copies of the
imaged computers in its possession.
THEREFORE, having considered the agreement of the parties as set forth above, the Court finds
it is supported by good consideration and it is hereby APPROVED; and it is further
ORDERED that this Order shall survive the dismissal of this proceeding.
IT IS SO ORDERED.
June ________, 2010.
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