EXHIBIT 10.91  

NOTE CANCELLATION AND EXTINGUISHMENT AGREEMENT

THIS NOTE CANCELLATION AND EXTINGUISHMENT AGREEMENT (“Note Cancellation Agreement”) is entered into as of March 14, 2017, between ELITE DATA SERVICES INC., a Florida corporation (“ Releasee ”), and BAKER & MYERS & ASSOCIATES LLC, a Nevada limited liability company (“ Releasor ”).

RECITALS

WHEREAS, Releasee and Releasor executed that certain Note and Share Cancellation and Exchange Agreement (the "Share Exchange Agreement") dated May 18, 2016, with respect to that certain unsecured Promissory Note (the "Original Baker Myers Note") dated on or about January 13, 2013, in the original amount of $587,500 (the "Original Amount"), pursuant to which Baker Myers agreed to forego and waive any and all right in, entitlement to or interest in (A) a total of $87,500 in principal, a total of $92,465 in accrued interest, late charges, reimbursable attorneys' fees, reimbursable expenses and any other sums due and payable under the Original Baker Myers Note totaling $179,952 (the "Cancelled Amount") as of the date of execution (the "Effective Date"), any future payments due under the Original Baker Myers Note and all or any other of Baker Myers's rights under the Cancelled Amount of the Original Baker Myers Note, thereby extinguishing and canceling the Cancelled Amount of the Original Baker Myers Note and terminating any and all of Company's obligations thereunder, (B) the Shares (hereinafter also referred to as the "Cancelled Shares") in exchange for the issuance an Option Agreement (the "Option Agreement"), registered in the Baker Myers's name to purchase up to a certain number of membership interests (the "EDM Membership Interest") of Elite Data Marketing LLC, a Florida limited liability company (the "EDM"), in an amount totaling one hundred percent (100%) of the ownership interest in EDM (the "Option 1"), (B) the issuance by Company to Baker Myers of a three-year "cashless" common stock purchase warrant (the "Warrant No. BM-1") for the right to purchase a total of 3,000,000 shares of Series B Preferred Stock of the Company (the "Preferred Warrant Shares"), at a purchase price of $0.001 per share, with certain rights and preferences as set forth in the certificate of designation (the "Certificate of Designation of Series B Preferred), in exchange for the Cancelled Shares, as referenced in the Share Exchange Agreement, and (C) the issuance of an amended and restated convertible redeemable note (the "Redeemable Note") in the aggregate principal face amount of Five Hundred Thousand Dollars (US$500,000), at ten percent (10%) interest per annum commencing on date of execution (the "Effective Date"), due and payable by the Company in eight (8) separate equal quarterly payments of Sixty-Two Thousand Five Hundred Dollars (USD $62,500), plus accrued interest to date, due on the first day of each quarter beginning on the date of the first quarter following the date of execution of this Original Baker Myers Note, convertible into shares of the Company's common stock at a conversion price equal to the lesser of $0.01 per share or a discount of fifty-eight percent (58%) of the lowest trading price for the ten (10) prior trading days, subject to aggregate conversion limitations of 4.99% and other terms and conditions set forth therein;

WHEREAS, Releasor desires to exercise the entire Option Agreement as set forth in the Share Exchange Agreement and further forego and waive any and all right in, entitlement to or interest in any principal, interest, late charges, reimbursable attorneys’ fees, reimbursable expenses and any other sums due and payable with respect to a total of Two Hundred Thousand Dollars (US$200,000) of the final two (2) quarterly payments of the Redeemable Note (the “Cancelled Sum”) as of the date of this Agreement (the “Effective Date”), any future payments due under the Cancelled Sum of the Redeemable Note and all or any other of Releasor’s rights under the Cancelled Sum of the Redeemable Note, thereby extinguishing and canceling the Cancelled Sum of the Redeemable Note and terminating any and all of Releasee’s obligations thereunder Cancelled Sum of the Redeemable Note, in exchange for the assignment and transfer by the Releasee of any and all of the issued and outstanding membership interests owned and held by Releasee representing a total of One Hundred Percent (100%) of the ownership interest of EDM (the “EDM Membership Interest”) to Releasor on the Effective Date (the “Cancellation Transaction”).

 

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NOW, THEREFORE, in consideration of the premises, mutual promises, representations, warranties, covenants and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree to be legally bound as follows:

Section 1. Recitals . Releasee and Releasor each acknowledges that the Recitals set forth above are true and accurate. Each of the Recitals is incorporated into this Agreement by reference and is made a part hereof.

Section 2. Cancellation of Cancelled Sum and Assignment . On the terms and subject to the conditions of this Agreement, immediately upon the execution of this Agreement, the Cancellation Transaction shall be deemed to be consummated. Each party hereto acknowledges receipt of the consideration set for in the Recitals above as to be received by such party. Upon the execution of this Agreement, Releasee and Releasor shall cause the assignment and transfer of all the EDM Membership Interest from Releasee to Releasor by the execution of the Assignment (the “Assignment”), as set forth in Exhibit A, attached hereto.

Section 3. Effects of Cancelation . Immediately upon the consummation of the Cancellation Transaction, and the execution of the Assignment set forth in Section 2, the Cancelled Sum the Redeemable Note (including all principal, interest, fees, penalties, costs, and expenses due thereon or pursuant thereto) shall be deemed paid in full and Cancelled Sum the Redeemable Note shall no longer have any legal effect.

Section 4. Release . Effective upon consummation of the Cancellation Transaction, Releasor, on behalf of himself and his respective heirs and personal representatives, and all others claiming through or under them, does hereby release, acquit and forever discharge Releasee and its present and former employees, officers, directors, members, shareholders, agents, consultants, counsel or representatives, and its successors and assigns (collectively, the “Releasee Parties”), and each of them, of and from any and all obligations, claims, debts, demands, covenants, contracts, promises, agreements, liabilities, controversies, costs, expenses, attorneys’ fees, actions or causes of action of any nature, whatsoever, in law or in equity, whether known or unknown, foreseen or unforeseen, accrued or not accrued, direct or indirect, which the Releasor ever had, now have, or can, shall or may have against any or all of the Releasee Parties, either alone or in combination with others, arising out of or from or in any way related to Cancelled Sum the Redeemable Note.

Section 5. Representations of Releasor . Releasor represents and warrants to Releasee as follows:

(a) Authorization . All action on the part of Releasor, necessary for the authorization, execution and delivery of this Agreement, the performance of all obligations of the Releasor hereunder has been taken. This Agreement, when executed and delivered by Releasor, will constitute a valid and legally binding obligation of Releasor, enforceable against Releasor in accordance with its terms.

(b) Title to Redeemable Note . Releasor is the lawful owner of Redeemable Note with good and marketable title thereto free and clear of all the following of any nature whatsoever: security interests, liens, pledges, claims, charges, escrows, encumbrances, options, rights of first offer or refusal, community property rights, mortgages, indentures, security agreements or other agreements, arrangements, contracts, commitments, understandings or obligations, whether written or oral and whether or not relating in any way to credit or the borrowing of money.

 

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(c) No Conflicts; Advice . Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which Releasor is subject or any provision of its organizational documents or other similar governing instruments, or conflict with, violate or constitute a default under any agreement, credit facility, debt or other instrument or understanding to which Releasor is a party. Releasor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with the transactions contemplated hereby.

(d) Consents . No authorization, consent, approval or other order of, or declaration to or filing with, any governmental agency or body or other person is required for the valid authorization, execution, delivery and performance by Releasor of this Agreement and the consummation of the transactions contemplated hereby.

(e) Bankruptcy . Releasor is not under the jurisdiction of a court in a Title 11 or similar case (within the meaning of Bankruptcy Code Section 368(a)(3)(A) (or related provisions)) or involved in any insolvency proceeding or reorganization.

Section 6. Representations of Releasee . Releasee represents and warrants to Releasor as follows:

(a) Authorization . All action on the part of Releasee, necessary for the authorization, execution and delivery of this Agreement, the performance of all obligations of the Releasee hereunder has been taken. This Agreement, when executed and delivered by Releasee, will constitute a valid and legally binding obligation of Releasee, enforceable against Releasee in accordance with its terms.

(b) No Conflicts; Advice . Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which Releasee is subject or any provision of its organizational documents or other similar governing instruments, or conflict with, violate or constitute a default under any agreement, credit facility, debt or other instrument or understanding to which Releasee is a party. Releasee has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with the transactions contemplated hereby.

(c) Consents . No authorization, consent, approval or other order of, or declaration to or filing with, any governmental agency or body or other person is required for the valid authorization, execution, delivery and performance by Releasee of this Agreement and the consummation of the transactions contemplated hereby.

Section 7. Waivers . No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, will be deemed to constitute a waiver by the party taking such action, or compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach. The waiver by any party hereto at or before the Closing Date of any condition to its obligations hereunder which is not fulfilled shall preclude such party from seeking redress from the other party hereto for breach of any representations, warranty, covenant or agreement contained in this Agreement.

 

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Section 8. Successors and Assigns . This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors, heirs, personal representatives, and permitted assigns.

Section 9. Expenses . Each party hereto shall pay the fees and expenses of such party’s advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement, and shall hold the other party hereto harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim for such fees and expenses.

EXHIBIT 10.92

JOINT VENTURE TERMINATION AGREEMENT

This Joint Venture Termination Agreement (“Termination Agreement”) is made on March 14, 2017, by and between ELITE DATA SERVICES INC., a Florida corporation (“DEAC”), and H Y H INVESTMENTS, S.A., a Hondorus corporation (“HYHI”), (each a “Party” and collectively referred to herein as the “Parties”).

WHEREAS, DEAC and HYHI executed that certain Joint Venture Agreement, dated on or about May 20, 2016, in which the parties formed a joint venture (the “Joint Venture”) using Elite Data Holdings S.A., a Honduras corporation, a wholly-owned subsidiary of Elite Gaming Ventures LLC, a Florida limited liability company ("EVG"), a wholly-owned subsidiary of the Company, and a distributor license from HYHI and El Mar Muerto Beauty Mineral, S.A., a Honduras corporation ("EMBM") to establish gaming operations (the "Purpose") by distributing and maintaining a total of eighty (80) slot machines in the cities of La Lima, Cortes; eighty (80) slot machines in the cities of Trujillo, Colon; and One Hundred and Sixty (160) slot machines in Roatan in the bay island of Honduras.

WHEREAS, under the terms of the Joint Venture, in the event of a termination, or if DEAC was unable to provide the Initial Funding when due, or for a period not to exceed ninety (90) days in each monthly instance, the financial and operational resources needed to maintain the operations of the Joint Venture for its intended purpose in an amount not less than Twenty-Five Dollars (USD $25,000) per month, less any revenues generated during such period, HYHI would have the right to cancel the Joint Venture in writing, thus terminating any further obligations of the parties to this Agreement (the "Termination"), including the cancellation of any further Minimum Licensing Fee Payments and the combined total of any outstanding amounts owed by DEAC, in excess of One Million Dollars (USD$1,000,000.00), on the Amended and Restated Redeemable Note and all other Licensing Redeemable Notes, issued to HYHI which have not been converted, or otherwise assigned, sold or transferred by HYHI to one or more other parties prior to such Termination date;

WHEREAS, pursuant to certain conditions of Article 18 of the Joint Venture Agreement, the Parties have decided to mutually waive the requirement for a notice of default by either party and immediately terminate the Joint Venture between the parties on the terms and conditions detailed hereunder.

NOW THEREFORE, in consideration of the mutual covenants herein contained, and other good and valuable consideration the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:

1. Termination . Parties hereto mutually agree that the Joint Venture Agreement shall be terminated, effective immediately upon this execution of this Termination Agreement (the “Termination”), releasing each other from any liabilities or claims whatsoever related to the Joint Venture Agreement, pursuant to the terms and conditions set forth in Section 2 below.

2. Conditions of Termination . Pursuant to the Termination, the entire Joint Venture Agreement shall be rendered null and void, except for validity and enforceability of a total of Three Million Nine Hundred Thousand Dollars (US$3,900,000) represented by the first eight (8) quarterly payments of the original Amended and Restated Redeemable Note issued on or about May 20, 2016 in the amended principal amount of Four Million Nine Hundred Thousand Dollars (USD $4,900,000), in relation to the following payments: (A) two (2) separate payments of Four Hundred Fifty Thousand Dollars (USD $450,000), plus accrued interest to date, due on July 1, 2016 and October 1, 2016, respectively, for a total of Nine Hundred Thousand Dollars (USD $900,000), and payable in cash or convertible into shares of common stock of DEAC at a conversion price equal to the lesser of $0.01 per share or fifty percent (50%) to the five (5) trading day average closing price immediately preceding the payment date, and (B) the remaining balance of Four Million (USD $4,000,000) payable in cash in a total of eight (8) equal quarterly installments of Five Hundred Thousand Dollars (USD $500,000), plus accrued interest to date, on the first day of each quarter beginning with January 1, 2017 and ending on January 1, 2019, convertible into shares of common stock of DEAC at fifty percent (50%) discount to the five (5) trading day average closing price immediately preceding the payment date, and other terms more fully described in the amended note set forth in the Amended and Restate Redeemable Note, thus cancelling the final two (2) quarterly payments (seventh and eighth quarterly payments) of Five Hundred Thousand Dollars (USD $500,000) each for a reduction of One Million Dollars (UD$1,000,000) of the principal amount of the Amended and Restated Redeemable Note, pursuant to the terms of the Note Cancellation and Extinguishment Agreement (the “Note Cancellation Agreement”), attached hereto as Exhibit A, and any and all existing operations, including, but not limited to, all of the assets and liabilities of the Joint Venture shall remain in Elite Data Holdings S.A., a Honduras corporation (“EDH”), as a wholly-owned subsidiary of Elite Gaming Ventures LLC, a Florida limited liability company (“EGV”), with the ownership interest of EGV assigned and transferred to HYHI and/or its assigns as set forth in the Assignment (the “Assignment”), attached hereto as Exhibit A-1 to the Note Cancellation Agreement, attached hereto.

 

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3. Representation and Warranties . Each of the Parties represents and warrants that:

	(i)	they have not entered into any arrangements, understandings or agreements, whether contingent or not, which would adversely affect the implementation of this Agreement;
	(ii)	they have the power and authority to enter into this Agreement and to perform its obligations under this Agreement, all of which have been duly authorized by all proper and necessary corporate action by each of the Parties;
	(iii)	this Agreement constitutes the valid and legally binding agreement of each of the Parties enforceable in accordance with its terms.

4. Expenses. Each Party shall be responsible for all the costs and expenses incurred by it in connection with and incidental to the preparation and completion of this Agreement.

5. General Provisions :

4.1 Waiver of Breach. All waivers under this Agreement shall be in writing. Any waiver by a party of the breach of any provision or of any condition precedent of this Agreement shall not operate as a waiver of any subsequent breach of that provision or as a waiver of the breach of any other provision or of any other condition precedent.

4.2 Severability. If any one or more provisions of this Agreement shall be adjudged or declared illegal or unenforceable, the same shall not in any way affect or impair the validity or enforceability of all or any other provision of this Agreement.

4.3 Governing Law. This Agreement and the performance hereof shall be construed and interpreted in accordance with the laws of the State of Florida. Any dispute arising under or out of this Agreement shall be submitted for resolution to an applicable state or federal court of competent jurisdiction that is located in the State of Florida.

4.4 Venue; Waivers . The Parties irrevocably agree that all actions or proceedings in any way, manner or respect, arising out of or from or related to this agreement shall be litigated in courts having situs within the County of Orange County, State of Florida. The Parties hereby waive any right they may have to transfer or change the venue of any litigation brought by another party hereto in accordance with this paragraph.

 

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4.5 Assignment. No party may assign its rights, interest or obligations under this Agreement without the prior approval in writing of the other party.

4.6 No Third Party Beneficiaries . This Agreement shall not confer any rights or remedies on any Person other than the parties and their respective successors and permitted assigns.

4.7 Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto in connection with the subject matter hereof. This Agreement may not be modified, amended, altered or extended orally, and no modification shall be effective unless in writing and signed by the parties hereto.

4.8 Binding Agreement. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, representatives, successors and assigns.

4.9 Notices. All notices, requests, demands and other communications required or permitted to be given hereunder shall be in writing, and shall be deemed to have been given, when received, if delivered in person or by a reputable courier service (such as Federal Express), or three (3) business days following mailing, if mailed by certified mail, return receipt requested, postage prepaid, as follows:

	If to DEAC :	Elite Data Services, Inc. 720 S. Colorado Blvd., PH North Denver, CO 80246 Attn: Chief Executive Officer Phone: (720) 240-9378 Email: admin@elitedata.io
	If to HYHI:	H Y H Investments, S.A. 50496189779 Isles de la Bahia Honduras, C.A. 34101 Attn: Chief Executive Officer Phone: ______________________ Email: _______________________

4.10 Exhibits and Schedules . The Exhibits and Schedules attached hereto constitute an integral part of this Agreement. Terms defined in this Agreement that are used in any Exhibit or Schedule attached hereto and are not otherwise defined therein shall have the meanings assigned to such terms in this Agreement. Terms defined in any Exhibit or Schedule attached hereto that are used in this Agreement or in any other Exhibit or Schedule which are not otherwise defined herein shall have the meanings assigned to such terms in such Exhibit or Schedule.

4.11 Headings . The headings contained in this Agreement are for convenience of reference only and shall not affect the meaning and interpretation of this Agreement.

4.12 Counterparts . This Agreement may be executed in multiple counterparts, each of which will be considered an original but all of which will constitute the same instrument, notwithstanding that fewer than all of the parties have signed the same counterpart. A counterpart signature page transmitted by facsimile machine will be given the same effect as an original signature page. Any party signing this Agreement by facsimile must provide the other parties with a manually signed signature page within ten (10) days after the date of this Agreement.

[Signature Pages to Follow]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

 

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EXHIBIT A

NOTE CANCELLATION AND EXTINGUISHMENT AGREEMENT

THIS NOTE CANCELLATION AND EXTINGUISHMENT AGREEMENT (“Note Cancellation Agreement”) is entered into as of March 14, 2017, between ELITE DATA SERVICES INC., a Florida corporation (“ Releasee ”), and H Y H INVESTMENTS, S.A., a Honduras corporation (“ Releasor ”).

RECITALS

WHEREAS, Releasee and Releasor executed that certain Third Amendment to the Securities Purchase Agreement (the "Third Amendment"), pursuant to which the parties agreed to further clarify and amend and restate certain provisions of the Original Purchase Agreement, First Amendment and Second Amendment (the "Original Purchase Agreement").

WHEREAS, pursuant to the terms of the Third Amendment, the parties mutually agreed to cancel the Original Purchase Agreement dated April 6, 2015, in exchange for a new Joint Venture Agreement (the "Joint Venture") executed on even date therewith, pursuant to which the Company and HYHI agreed to create a joint venture relationship using Elite Data Holdings S.A., a Honduras corporation (“EDH”), a wholly-owned subsidiary of Elite Gaming Ventures LLC, a Florida limited liability company ("EVG"), a wholly-owned subsidiary of the Company, and a distributor license from HYHI and El Mar Muerto Beauty Mineral, S.A., a Honduras corporation ("EMBM") to establish gaming operations (the "Purpose") by distributing and maintaining a total of eighty (80) slot machines in the cities of La Lima, Cortes; eighty (80) slot machines in the cities of Trujillo, Colon; and One Hundred and Sixty (160) slot machines in Roatan in the bay island of Honduras.

WHEREAS, pursuant to the terms of the Joint Venture, the parties agreed to certain terms and conditions of the Joint Venture, including, but not limited to, a certain amount of consideration reflected in a further amendment and restatement of the amended and restated convertible note (the "Original Amended Note"), dated April 6, 2015, in the form of the amended and restated convertible redeemable note (the "Amended and Restated Redeemable Note") to reflect the original issuance date of January 1, 2016 (the "Restated Issuance Date"), and a decrease in the original principal amount from Nine Million Nine Hundred Thousand Dollars (USD $9,900,000) to Four Million Nine Hundred Thousand Dollars (USD $4,900,000) (the "New Principal Amount"), at ten percent (10%) interest per annum, due and payable to HYHI by DEAC as follows: (A) two (2) separate payments of Four Hundred Fifty Thousand Dollars (USD $450,000), plus accrued interest to date, due on July 1, 2016 and October 1, 2016, respectively, for a total of Nine Hundred Thousand Dollars (USD $900,000), and payable in cash or convertible into shares of common stock of DEAC at a conversion price equal to the lesser of $0.01 per share or fifty percent (50%) to the five (5) trading day average closing price immediately preceding the payment date, and (B) the remaining balance of Four Million (USD $4,000,000) payable in cash in a total of eight (8) equal quarterly installments of Five Hundred Thousand Dollars (USD $500,000), plus accrued interest to date, on the first day of each quarter beginning with January 1, 2017 and ending on January 1, 2019, convertible into shares of common stock of DEAC at fifty percent (50%) discount to the five (5) trading day average closing price immediately preceding the payment date, and other terms more fully described in the amended note set forth in the Amended and Restate Redeemable Note.

WHEREAS, Releasor desires to forego and waive any and all right in, entitlement to or interest in any principal, interest, late charges, reimbursable attorneys’ fees, reimbursable expenses and any other sums due and payable with respect to a total of One Million Dollars (US$1,000,000) of the final two (2) quarterly payments (seventh and eighth quarterly payments) of Five Hundred Thousand Dollars (USD $500,000) each of the Amended and Restated Redeemable Note (the “Cancelled Sum”) as of the date of this Agreement (the “Effective Date”), any future payments due under the Cancelled Sum of the Redeemable Note and all or any other of Releasor’s rights under the Cancelled Sum of the Redeemable Note, thereby extinguishing and canceling the Cancelled Sum of the Redeemable Note and terminating any and all of Releasee’s obligations thereunder Cancelled Sum of the Redeemable Note, in exchange for the assignment and transfer by the Releasee of any and all of the issued and outstanding membership interests owned and held by Releasee representing a total of One Hundred Percent (100%) of the ownership interest of EVG (the “EVG Membership Interest”), and its wholly-owned subsidiary EDH, to Releasor and/or its assigns, on the Effective Date (the “Cancellation Transaction”).

 

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NOW, THEREFORE, in consideration of the premises, mutual promises, representations, warranties, covenants and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree to be legally bound as follows:

Section 1. Recitals . Releasee and Releasor each acknowledges that the Recitals set forth above are true and accurate. Each of the Recitals is incorporated into this Agreement by reference and is made a part hereof.

Section 2. Cancellation of Cancelled Sum and Assignment . On the terms and subject to the conditions of this Agreement, immediately upon the execution of this Agreement, the Cancellation Transaction shall be deemed to be consummated. Each party hereto acknowledges receipt of the consideration set for in the Recitals above as to be received by such party. Upon the execution of this Agreement, Releasee and Releasor shall cause the assignment and transfer of all the EVG Membership Interest from Releasee to Releasor by the execution of the Assignment (the “Assignment”), as set forth in Exhibit A-1, attached hereto.

Section 3. Effects of Cancelation . Immediately upon the consummation of the Cancellation Transaction, and the execution of the Assignment set forth in Section 2, the Cancelled Sum the Redeemable Note (including all principal, interest, fees, penalties, costs, and expenses due thereon or pursuant thereto) shall be deemed paid in full and Cancelled Sum the Redeemable Note shall no longer have any legal effect.

Section 4. Release . Effective upon consummation of the Cancellation Transaction, Releasor, on behalf of himself and his respective heirs and personal representatives, and all others claiming through or under them, does hereby release, acquit and forever discharge Releasee and its present and former employees, officers, directors, members, shareholders, agents, consultants, counsel or representatives, and its successors and assigns (collectively, the “Releasee Parties”), and each of them, of and from any and all obligations, claims, debts, demands, covenants, contracts, promises, agreements, liabilities, controversies, costs, expenses, attorneys’ fees, actions or causes of action of any nature, whatsoever, in law or in equity, whether known or unknown, foreseen or unforeseen, accrued or not accrued, direct or indirect, which the Releasor ever had, now have, or can, shall or may have against any or all of the Releasee Parties, either alone or in combination with others, arising out of or from or in any way related to Cancelled Sum the Redeemable Note.

Section 5. Representations of Releasor . Releasor represents and warrants to Releasee as follows:

(a) Authorization . All action on the part of Releasor, necessary for the authorization, execution and delivery of this Agreement, the performance of all obligations of the Releasor hereunder has been taken. This Agreement, when executed and delivered by Releasor, will constitute a valid and legally binding obligation of Releasor, enforceable against Releasor in accordance with its terms.

(b) Title to Redeemable Note . Releasor is the lawful owner of Redeemable Note with good and marketable title thereto free and clear of all the following of any nature whatsoever: security interests, liens, pledges, claims, charges, escrows, encumbrances, options, rights of first offer or refusal, community property rights, mortgages, indentures, security agreements or other agreements, arrangements, contracts, commitments, understandings or obligations, whether written or oral and whether or not relating in any way to credit or the borrowing of money.

 

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(c) No Conflicts; Advice . Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which Releasor is subject or any provision of its organizational documents or other similar governing instruments, or conflict with, violate or constitute a default under any agreement, credit facility, debt or other instrument or understanding to which Releasor is a party. Releasor has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with the transactions contemplated hereby.

(d) Consents . No authorization, consent, approval or other order of, or declaration to or filing with, any governmental agency or body or other person is required for the valid authorization, execution, delivery and performance by Releasor of this Agreement and the consummation of the transactions contemplated hereby.

(e) Bankruptcy . Releasor is not under the jurisdiction of a court in a Title 11 or similar case (within the meaning of Bankruptcy Code Section 368(a)(3)(A) (or related provisions)) or involved in any insolvency proceeding or reorganization.

Section 6. Representations of Releasee . Releasee represents and warrants to Releasor as follows:

(a) Authorization . All action on the part of Releasee, necessary for the authorization, execution and delivery of this Agreement, the performance of all obligations of the Releasee hereunder has been taken. This Agreement, when executed and delivered by Releasee, will constitute a valid and legally binding obligation of Releasee, enforceable against Releasee in accordance with its terms.

(b) No Conflicts; Advice . Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby, does or will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge or other restriction of any government, governmental agency, or court to which Releasee is subject or any provision of its organizational documents or other similar governing instruments, or conflict with, violate or constitute a default under any agreement, credit facility, debt or other instrument or understanding to which Releasee is a party. Releasee has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate in connection with the transactions contemplated hereby.

(c) Consents . No authorization, consent, approval or other order of, or declaration to or filing with, any governmental agency or body or other person is required for the valid authorization, execution, delivery and performance by Releasee of this Agreement and the consummation of the transactions contemplated hereby.

Section 7. Waivers . No action taken pursuant to this Agreement, including any investigation by or on behalf of any party, will be deemed to constitute a waiver by the party taking such action, or compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach. The waiver by any party hereto at or before the Closing Date of any condition to its obligations hereunder which is not fulfilled shall preclude such party from seeking redress from the other party hereto for breach of any representations, warranty, covenant or agreement contained in this Agreement.

 

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Section 8. Successors and Assigns . This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors, heirs, personal representatives, and permitted assigns.

Section 9. Expenses . Each party hereto shall pay the fees and expenses of such party’s advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement, and shall hold the other party hereto harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim for such fees and expenses.

Section 10. Notices . Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient when delivered personally, or by electronic delivery in PDF format (followed by first-class mail), or seventy-two (72) hours after being deposited in the U.S. mail, as certified or registered mail, with postage prepaid, and addressed to the party to be notified at such party’s address as set forth below or as subsequently modified by written notice.

	If to DEAC :	Elite Data Services, Inc. 720 S. Colorado Blvd., PH North Denver, CO 80246 Attn: Chief Executive Officer Phone: (720) 240-9378 Email: admin@elitedata.io
	If to HYHI:	H Y H Investments, S.A. 50496189779 Isles de la Bahia Honduras, C.A. 34101 Attn: Chief Executive Officer Phone: ______________________ Email: _______________________

Section 11. Counterparts . This Agreement may be executed via facsimile in one or more counterparts and transmitted via facsimile or PDF, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. When counterparts of copies have been executed by all parties, they shall have the same effect as if the signatures to each counterpart or copy were upon the same document and copies of such documents shall be deemed valid as originals.

 

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Section 12. Severability . If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired hereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.

Section 13. Entire Agreement . This Agreement represents the entire agreement of the parties hereto with respect to the matters contemplated hereby, and there are no written or oral representations, warranties, understandings or agreements with respect hereto except as expressly set forth herein.

Section 14. Amendments; Waivers . No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by each party or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought.

Section 15. Confidentiality . Each of Releasor and Releasee hereby agrees, without the prior written consent of the other, to not disclose, and to otherwise keep confidential, the transactions contemplated hereby and the terms and conditions of this Agreement, except to the extent that disclosure thereof is required by law, rule or regulation; provided, however, that Releasor and Releasee may disclose information regarding such transactions to their respective accountants, attorneys, limited partners, shareholders and other interest holders.

Section 16. Further Assurances . Each of Releasor and Releasee hereby agrees and provides further assurances that it will, in the future, execute and deliver any and all further agreements, certificates, instruments and documents and do and perform or cause to be done and performed, all acts and things as may be necessary or appropriate to carry out the intent and accomplish the purposes of this Agreement.

Section 17. Governing Law . This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Florida. Each of the parties hereto consents to the exclusive jurisdiction and venue of the state courts located in Orange County in the State of Florida and the federal courts for the District of Florida with respect to all claims under this Agreement.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first written above.

RELEASOR :			RELEASEE :
H Y H INVESTMENT, S.A.,			ELITE DATA SERVICES INC.,
a Honduras corporation			a Florida corporation
By:	/s/ Wilson Stevenson		By:	/s/ Brenton Mix
Printed Name:	Wilson Stevenson		Printed Name:	Brenton Mix
Title:	President		Title:	CEO

 

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EXHIBIT A-1

ASSIGNMENT OF MEMBERSHIP INTERESTS

(Elite Gaming Ventures LLC)

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, ELITE DATA SERVCIES INC. , a Florida corporation (“Assignor”), hereby assigns, sets over and transfers to H Y H INVESTMENTS, S.A. , a Honduras corporation (“Assignee”), effective as of the date hereof, all of the membership interest in ELITE GAMING VENTURES LLC , a Florida limited liability company (the “LLC”), equal to a total of one hundred percent (100%) ownership interest of the LLC, owned and held by Assignor, pursuant to the terms of the Termination Agreement, of even data herewith, of which this Assignment is made a part thereof.

TO HAVE AND TO HOLD the same unto Assignee, it respective successors and assigns forever; and

Assignor does, for itself and its successors and assigns, covenant and agree with Assignee to specifically warrant and defend title to the said membership interest assigned hereby unto Assignee, its successors and assigns, against any and all claims thereto by whomsoever made by or through Assignor; and

Assignor does, for itself and its successors and assigns, warrant and represent to the Assignee that the title conveyed is good, its transfer is rightful; that no consent or approval by any other person or entity is required for the valid assignment by Assignor to Assignee of the membership interest referenced herein; and that the membership interests are, have been, and shall be delivered free and clear from any security interest or other lien or encumbrance; and

Assignor does, for itself and its successor and assigns, warrant and represent to Assignee that there are no attachments, executions or other writs of process issued against the membership interest conveyed hereunder; that it has not filed any petition in bankruptcy nor has any petition in bankruptcy been filed against it; and that it has not been adjudicated a bankrupt; and

Assignor does, for itself and its successors and assigns, warrant that it will execute any such further assurances of the foregoing warranties and representations as may be requisite.

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IN WITNESS WHEREOF, Assignor and Assignee have caused this Assignment to be executed as of March 14, 2017.

	ASSIGNORS
	ELITE DATA SERVICES INC.
	By:	/s/ Brenton Mix
	Name:	Brenton Mix
	Title:	CEO
	ASSIGNEE
	H Y H INVESMENTS, S.A.
	By:	/s/ Wilson Stevenson
	Name:	Wilson Stevenson
	Title:	President

 

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EXHIBIT 10.93

AMENDMENT NO. 2 TO THE DEFINITIVE AGREEMENT

(DEAC and WOD)

THIS AMENDMENT NO. 2 TO THE DEFINITIVE AGREEMENT, dated as of March 14, 2017 (this "Amendment No. 2") by and among WOD MARKET LLC, a Colorado limited liability company ("WOD"), and WOD HOLDINGS INC., a Delaware corporation (“WODH”), a newly formed entity, owned and held by Brenton Mix and Taryn Watson, individually (collectively referred to as the "WOD Controlling Member(s)"), and ELITE DATA SERVICES INC., a Florida corporation publicly-traded on the US Over-the-Counter (OTC) Stock Exchange ("Company"), and the individuals listed on the signature page hereto (together, the "Company Controlling Shareholders") (each a "Party" and collectively referred to as the "Parties").

RECITALS

WHEREAS, on August 26, 2016, the Parties hereto executed that certain definitive agreement (the "Original Agreement"), pursuant to which the Company agreed to acquire one hundred percent (100%) of the ownership interest in WOD, in the form of three (3) separate closings, subject to the following material terms and conditions:

(a) First Closing . On August 26, 2016 (the "First Closing" or "Initial Closing"), the Company would acquire a total of twenty percent (20%) of the ownership interest of WOD in an equity exchange in which the WOD Members would exchange a total of 200 units of membership interests (the "WOD Units") to the Company in exchange for a total of 100,000 shares of Series B Preferred Stock of the Company (the Series B Preferred Stock of the Company to be issued pursuant to this transaction, in the aggregate is referred to as the "New Company Shares").

In addition, within two (2) business days after the Initial Closing, WOD would advance a total of Forty Thousand Dollars ($40,000) to Company for the purposes of funding the completion of Company's audit and SEC filing of Form 10K for the period ending December 31, 2015, Form 10Q for period ending March 31, 2016, Form 10Q for period ending June 30, 2016, and other documentation required for Company to become a compliant and fully reporting public company (the "Interim Financing"), secured by two (2) separately executed Convertible Redeemable Notes ("WOD Notes").

Further, as a condition of the execution of Original Agreement, Company agreed to immediately, as of August 26, 2016, initiate a reverse split of 1:1000 of Company's Common Stock (the "Reverse Split"), pursuant to the prior approval received by Company from the holders of majority of Company's outstanding capital stock, as described in the Schedule 14C filed with the SEC on September 23, 2015. The effective date of the reverse split is subject to final approval of FINRA. Subject to the completion of the Reverse Split, the certain controlling shareholders of the Company agreed to exchange and cancel a total of 1,000,000 shares of Series B Preferred Stock (500,000 each by Dr. Ricketts and Mr. Antol) for a total of 25,000,000 shares of Common Stock of the Company to be issued post the date the Reverse Split is effective.

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(b) Second Closing . On or before September 15, 2016 (the "Second Closing"), the Company would acquire an additional twenty percent (20%) of the ownership interest of WOD in an equity exchange in which the WOD Members would exchange 200 WOD Units to the Company in exchange for an additional 100,000 New Company Shares, issued by the Company to the WOD Members pro rata.

In addition, the Second Closing would be contingent upon Company completing all necessary corporate actions to effect any and all outstanding Company corporate matters, including, but not limited to, SEC filing of Form 10K for the period ending December 31, 2015, Form 10Q for period ending March 31, 2016, Form 10Q for period ending June 30, 2016, and other documentation required for Company to become a compliant and fully reporting public company (the "SEC Filing").

(c) Third Closing . On or before October 15, 2016 (the "Third Closing"), the Company would acquire the remaining sixty percent (60%) of the ownership interest of WOD an equity exchange in which the WOD Members would exchange a total of 600 WOD Units to the Company in exchange for a total of 14,800,000 New Company Shares.

In addition, the Third Closing would be contingent upon WOD completing all necessary corporate actions to effect any and all outstanding WOD corporate matters, including, but not limited to, two years of audit financials for period ending December 31, 2014 and December 31, 2015, and interim reviewed financial for periods ending March 31, 2016, and June 30, 2016, including interim reviewed financial for period ending September 30, 2016, in accordance with US GAAP (the "Books and Records"), in form acceptable to Company and its auditors. Separately, Company must be current with all federal tax return filings for periods ending 2013, 2014 and 2015 on or before the Third Closing.

WHEREAS, on January 10, 2017, the Company and the members of (the "WOD Members") WOD Market LLC, a Colorado limited liability company ("WOD"), executed amendment no.1 to the definitive agreement (the "WOD Amendment No.1"), pursuant to which the Company agreed to extend the second closing date from on or about September 15, 2016 to on or about March 31, 2017, and further extend the third and final closing date from on or about October 15, 2016 to on or about June 30, 2017, respectively.

In addition, the WOD Amendment No.1 included the resignations and appointments of certain officers and directors of the Company, which were originally closing conditions of the second and third and final closings, respectively as set forth in the original Definitive Agreement. Pursuant to such resignations, the parties further accepted and agreed to the termination of the contractor agreement with Dr. James G. Ricketts as the Chairman and VP of Investor Relations of Company in exchange for the Ricketts Settlement Agreement, and the termination of the contractor agreement with Mr. Antol as the Chief Financial Officer, Secretary and Treasurer, in exchange for the Antol Settlement Agreement.

Further, Dr. James G. Ricketts and Stephen Antol, separately, agreed to each cancel a total of 500,000 shares of Series B Preferred Stock of the Company, totaling 1,000,000 shares in the aggregate, returning such shares to the Company’s treasury, and thus rendering the share exchange contemplated in the original Definitive Agreement null and void. Separately, the Parties agreed to execution of the Rimlinger Settlement Agreement.

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WHEREAS, the Parties hereto wish to further amend and restate certain provisions of the Original Agreement, as set forth herein.

AGREEMENT

NOW THEREFORE, in consideration of the foregoing, the Parties hereby agree as follows:

1. Defined Terms . Unless otherwise indicated herein, all terms, which are capitalized, but are not otherwise defined herein, shall have the meaning ascribed to them in the Original Agreement.

2. Amended and Restated definition of Second Closing and Third and Final Closing in the Original Agreement . The definition of Second Closing and Third and Final Closing in the Original Agreement shall be amended and restated as follows:

“Second Closing shall be amended and replaced with the meaning of Subsequent Closings, as described and set forth in Schedule 1.1 , as amended. ”

“Third and Final Closing shall be amended and replaced with the meaning of Subsequent Closings, representing a closing on the Controlling Equity Ownership, as described and set forth in Schedule 1.1 , as amended.”

3. Amended and Restated Section 1.1 of the Original Agreement . Section 1.1 of the Original Agreement shall be amended and restated as follows:

“Section 1.1 Acquisition of WOD . Upon the terms and subject to the conditions set forth in this Agreement, DEAC shall acquire, from the WOD Controlling Member(s), a certain percentage of the ownership interest in WOD (the “Equity Ownership”), equal to not less than sixty percent (60%) of the total Equity Ownership (the “Controlling Equity Ownership”), in a series of closings in the form of one or more capital contributions and equity exchanges, upon which WOD shall become a controlled subsidiary of DEAC, after the closing on the Controlling Equity Ownership has occurred, as described and set forth in Schedule 1.1 hereto.”

4. Amended and Restated Section 1.2 of the Original Agreement . Section 1.2 of the Original Agreement shall be amended and restated as follows:

Section 1.2 Agreement to Exchange WOD Units for New DEAC Shares . Pursuant to Section 1.1 hereinabove, (i) WOD shall assign, transfer, convey and deliver the WOD Units to DEAC; and in consideration and exchange therefor, DEAC shall; (ii) issue and deliver the New DEAC Shares into Trust (as hereinafter defined), in such amounts as described and set forth in Schedule 1.2 hereto (collectively referred to as the " Equity Exchange(s) ").

 

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5. Amended and Restated Section 8.2(d) of the Original Agreement . Section 8.2(d) of the Original Agreement shall be amended and restated as follows:

“(d) By either DEAC or WOD, if the closing on the Controlling Equity Ownership shall not have consummated before December 31, 2018; provided , however , that this Agreement may be extended by written notice of either WOD or DEAC if such closing shall not have consummated as a result of WOD or DEAC having failed to receive all required regulatory approvals or consents with respect to this transaction or as the result of the entering of an order as described in this Agreement; and further provided, however , that the right to terminate this Agreement under this Section 8.2(d) shall not be available to any party whose failure to fulfill any obligations under this Agreement has been the cause of, or resulted in, the failure of the Closing to occur on or before this date;”

6. Amended and Restated of second paragraph of Section 8.3 of the Original Agreement . The second paragraph of Section 8.3 of the Original Agreement shall be amended and restated as follows:

“Notwithstanding the foregoing, on the date of termination, WOD Controlling Members shall have the right to either (a) request the delivery of the proportional New DEAC Shares represented by the Equity Exchanges, held in Trust (as hereinafter defined), in which DEAC shall retain any and all ownership interest in WOD Units owned and held as of such date, or (b) forfeit any and all proportional New DEAC Shares held in Trust (as hereinafter defined), representing the Equity Exchanges as of such date, and request DEAC to return all WOD Units owned and held as of such date, first Initial Shares for Initial Closing Units, and then, in exchange for a payment from WOD or WOD Controlling Members, at the sole discretion of DEAC, in the form of either (i) a cash payment equal to two times (2x) the amount of the aggregate total of all Additional Capital Contributions (as defined in Schedule 1.1 herein) made by DEAC as of such date, or (ii) a stock payment equal to two and one half times (2.5x) the amount of the aggregate total of all Additional Capital Contributions (as defined in Schedule 1.1 herein) made by DEAC as of such date, to be issued in a parent entity of WOD, if such exists at the time, at a per share price and type of securities mutually determined at such time. Separately, DEAC shall be required to repay any outstanding balance of Interim Financings provided by WOD as set forth in Schedule 1.4(c) herein. Upon the completion of a termination, neither party shall have any further obligations to the other thereafter, except as otherwise provided for herein in this Agreement.”

7. Amended and Restated Section 1.4(b) of Schedule 1.4 of the Original Agreement . Section 1.4(b) of Schedule 1.4 of the Original Agreement is amended and restated as follows:

“(b) Books and Records . On or before the next Subsequent Closing after the First Closing as set forth in Schedule 1.1 herein, DEAC shall complete all necessary corporate actions to effect any and all outstanding DEAC corporate matters, including, but not limited to, SEC filing of Form 10K for the period ending December 31, 2015, Form 10Q for period ending March 31, 2016, Form 10Q for period ending June 30, 2016, and other documentation required for DEAC to become a compliant and fully reporting public company (the " SEC Filing "), and on or before a Subsequent Closing related to the Second Capital Threshold as set forth in Schedule 1.1 herein, WOD shall complete all necessary corporate actions to effect any and all outstanding WOD corporate matters, including, but not limited to, two years of audit financials for period ending December 31, 2014, December 31, 2015, and December 31, 2016, including any other applicable year end audit, and interim reviewed financials for period ending the most recent financial quarter in the applicable year, in accordance with US GAAP (the " Books and Records "), in form acceptable to DEAC and its auditors. Separately, DEAC must be current with all federal tax return filings for periods ending 2013, 2014, 2015, 2016 and any other applicable year on or before a Subsequent Closing related to the Second Capital Threshold.”

 

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8. Amended and Restated Schedules. Schedules 1.1 and 1.2 of the Original Agreement shall be amended and restated, as more fully described in Exhibit I, attached hereto and incorporated by reference as being a part of the Original Agreement, as amended.

9. Amendment to Officer and Director Appointments and Resignations . Schedule 1.4(c) of the Original Agreement, as amended, is hereby amended further to reflect the resignation of Sarah Myers as the Secretary, Treasurer and Director of the Company, and the concurrent new appointment of Richard Phillips as the Secretary and Treasurer, in addition to his current position as a member of the Board of Directors of the Company, effective immediately.

10. Amendment to add a new Section 1.4(g) to Schedule 1.4 of the Original Agreement related to New Contractor Agreements . Schedule 1.4 of the Original Agreement is hereby amended to include the addition of Section 1.4(g) related to new contractor agreements as follows:

“(g) New Contractor Agreements . As a condition of the First Closing, as amended, DEAC has agreed to the execution of two (2) new contractor agreements: (A) Brenton Mix, as Chief Executive Officer and Chief Financial Officer of DEAC, in the form attached hereto as Exhibit C, and (B) Richard Phillips, as the Secretary and Treasurer of DEAC, in the form attached hereto as Exhibit D.”

11. Ratifications; Inconsistent Provisions . Except as otherwise expressly provided herein, the Original Agreement, are, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except that on and after the Effective Date: (i) all references in the Original Agreement to “this Agreement”, “hereto”, “hereof”, “hereunder” or words of like import referring to the Original Agreement shall mean the Original Agreement as amended by this Amendment and (ii) all references such as “thereto”, “thereof”, “thereunder” or words of like import referring to the Original Agreement shall mean the Original Agreement as amended by this Amendment. Notwithstanding the foregoing to the contrary, to the extent that there is any inconsistency between the provisions of the Original Agreement, and this Amendment, the provisions of this Amendment shall control and be binding.

12. Counterparts . This Amendment may be executed in any number of counterparts, all of which will constitute one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. Facsimile or other electronic transmission of any signed original document shall be deemed the same as delivery of an original.

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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

WOD			WOD CONTROLLING MEMBERS
WOD MARKET LLC			WOD HOLDINGS INC.
By:	/s/ Taryn Watson		By:	/s/ Taryn Watson
	Taryn Watson			Taryn Watson
	President			President
			By:	/s/ Taryn Watson
				Taryn Watson
			By:	/s/ Brenton Mix
				Brenton Mix

COMPANY			DEAC CONTROLLING SHAREHOLDERS
ELITE DATA SERVICES INC.
By:	/s/ Brenton Mix		By:	/s/ James G. Rickets
	Brenton Mix			Dr. James G. Ricketts
	Chief Executive Officer
			By:	/s/ Stephen Antol
				Stephen Antol

 

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EXHIBIT I

Amended and Restated Schedules

Schedules

Schedules 1.1 and 1.2

Schedule 1.1 Acquisition of WOD.

Pursuant to Section 1.1 of the Agreement, DEAC shall acquire, from the WOD Controlling Members, a certain percentage of the ownership interest in WOD (the “Equity Ownership”), in the form of units of Membership Interest (the “WOD Units”), equal to not less than sixty percent (60%) of the total Equity Ownership (600 WOD Units) (the “Controlling Equity Ownership”), in a series of closings in the form of one or more capital contributions and equity exchanges, upon which WOD shall become a controlled subsidiary of DEAC, after the closing on the Controlling Equity Ownership has occurred, under the following terms and conditions:

(a) First Closing. The first (or initial) closing (also referred to as the Closing in this Agreement) on the first Closing Date set forth in this Agreement, DEAC and WODH (collectively the "Partners" and individually the "Partner"), as equity partners, shall establishment a Joint Venture arrangement (the "Joint Venture"), pursuant to the terms of a Joint Venture Agreement (the “Joint Venture Agreement”), in the form attached hereto as Exhibit 1, which shall more fully describe the following abbreviated terms:

(i) Joint Venture Purpose and Scope . The primary purpose of the Joint Venture is to further develop and manage the current business of WOD, as a provider of intelligent retail solutions for gym owners and coaches, including the management of retail sales, up front inventory purchases, ongoing inventory management, payments, marketing, and related services.

(ii) Equity Ownership . WOD shall be owned initially by the Partners in the form of Equity Ownership, as follows: (i) 800 WOD Units, representing a total of eighty percent (80%) held by WOD Controlling Members, and (ii) 200 WOD Units, representing a total of twenty percent (20%) held by DEAC, pursuant to Schedule 1.2 herein.

(iii) Additional Capital Contributions . At the sole discretion of DEAC, additional capital contributions into the Joint Venture (the “Additional Capital Contributions”) may be provided by DEAC, from time to time, which may be disproportional to WOD Controlling Members capital contributions, in order to provide WOD with growth capital as determined by the Partners, which shall be made in increments of not less than (a) $10,000 for each contribution up to a total of US $3,000,000 in the aggregate (the “Initial Capital Threshold”), (b) $1,000,000 for a follow-on contribution up to a total of US $4,000,000 in the aggregate (the “Second Capital Threshold”), and (c) $100,000 for each subsequent contribution up to a total of US $8,000,000 in the aggregate (the “Final Capital Threshold”).

 

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(iv) Equity Exchanges . As a condition of DEAC’s option (or right) to provide Additional Capital Contributions, as set forth in Section 1.1(a)(iii) herein, the Partners have mutually agreed to in advance to the exchange of a certain number of WOD Units for a certain number of shares of Series B Preferred Stock and Common Stock of DEAC, collectively referred to as (the “Equity Exchanges”), pursuant to Schedule 1.2 herein.

(b) Subsequent Closings. A series of subsequent closings (each referred to as the Closing in this Agreement) shall occur from time to time, each time DEAC decides to provide the Joint Venture with Additional Capital Contributions (the “Subsequent Closing(s)”), which shall also trigger the proportional Equity Exchanges, as set forth in Schedule 1.2 herein.

In the event, DEAC provides capital contributions equal to the Second Capital Threshold, then WOD would be considered a controlled subsidiary of DEAC, and the parties hereto shall agree in advance to alter and/or modify the terms of the Joint Venture Agreement, as required, to provide for DEAC consolidated financial statements. Notwithstanding the forgoing, such applicable changes to the Joint Venture Agreement shall not effect any allocations of profits due to the Controlling Members resulting from the remaining minority interest held in WOD. If DEAC continues to provide capital contributions up to the Final Capital Threshold, WOD Controlling Members shall be entitled to proportional Equity Exchanges set forth in Schedule 1.2 herein below, unless otherwise agreed to in writing at such time.

Schedule 1.2 Agreement to Exchange WOD Units for New DEAC Shares.

Pursuant to the closings set forth in Schedule 1.1 hereinabove, (i) WOD shall assign, transfer, convey and deliver the WOD Units to DEAC, and in consideration and exchange therefore, DEAC shall (ii) issue and deliver the New DEAC Shares (as hereinafter defined) into Trust (as hereinafter defined), in such amounts as described and set forth below:

(a) DEAC . Upon the execution of this Agreement, DEAC shall issue and deliver into Trust, pursuant to the terms of the Vesting Trust Agreement (the “Trust Agreement”), attached hereto as Exhibit 2, a total of 199,000 shares of Series B Preferred Stock of DEAC (the “Series B Shares”), at par value of $0.0001, post reverse split of 1:1000 of its Common Stock, and 19,801,000 shares of Company Stock of DEAC (the “Common Shares”), at par value of $0.0001, post reverse split of 1:1000 of its Common Stock (the “New DEAC Shares”), of which a total of 39,800 Series B Shares and 3,960,200 Common Shares, respectively, represents the proportional number of New DEAC Shares attributable to the First Closing (the “Initial Shares”) ; and

 

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(b) WOD. Upon the execution of this Agreement, the WOD Controlling Members shall assign, transfer, convey, and deliver to DEAC a total of 200 WOD Units, representing a total of twenty percent (20%) of the ownership interest in WOD, which represents the WOD Units attributable to the First Closing (the “Initial Units”).

In the event DEAC provides Additional Capital Contributions to the WOD, pursuant to the terms of the Joint Venture, and as set forth in Schedule 1.1(a)(iii) hereinabove, in increments of not less than US$10,000 per occurrence, DEAC and WOD Controlling Members shall also be entitled to Equity Exchanges, equal to: (x) one (1) WOD Unit assigned and transferred to DEAC from WOD Controlling Members, for (y) two hundred forty-nine (249) shares of Series B Preferred Stock of DEAC, and twenty-four thousand six hundred twenty-six (24,626) shares of Common Stock of DEAC, earmarked to WOD Controlling Members, from the total of all the New DEAC Shares held in Trust for the benefit of WOD Controlling Members, if the Final Capital Threshold is completed.

(e.g. If a total of $1,000,000 in additional capital contributions in the aggregate, was provided by DEAC, then WOD Controlling Members would assign and transfer to DEAC a total of 100 WOD Units, representing ten percent (10%) of Equity Ownership, it held at such time, in exchange for a total of 24,875 shares of Series B Preferred and 2,462,625 shares of Common Stock, post reverse split 1000:1, held in Trust for the benefit of WOD Controlling Members.)

Notwithstanding the foregoing, the Parties mutually agreed to limit each subsequent closing of Equity Exchanges to $1,000,000 in the aggregate per transaction, for administrate purposes only, provided, however , that such delayed closings does not in any way effect the right of ownership to the entitled amount of Equity Exchanges granted to each party, respectively, as a result of DEAC providing Additional Capital Contributions to WOD. Once DEAC has provided capital contributions equal to the Second Capital Threshold, WOD would become a controlled subsidiary of DEAC and WOD Controlling Members, at their sole discretion, would have the right to request that the proportional numbers of NEW DEAC Shares held on their behalf in Trust, be immediately re-issued into the name of the WOD Controlling Members, pursuant to the Trust Agreement.

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EXHIBIT 10.94

JOINT VENTURE AGREEMENT

(WOD Market LLC)

THIS AGREEMENT (the “Agreement”) is made as of March 14, 2017, by and between ELITE DATA SERVICES INC. , a Florida corporation (hereinafter referred to as "DEAC") and WOD HOLDINGS INC. (hereinafter referred to as "WODH"), a Delaware corporation.

RECITALS

Pursuant to Amendment No. 2 of the Definitive Agreement, dated August 26, 2016, as amended (the “WOD Definitive Agreement”), DEAC and WODH (sometimes hereinafter referred to collectively as the "Partners" and individually as the "Partner") have decided to collaborate on the business described in Appendix A hereto (the "Business") as equity partners and desire to form a joint venture arrangement (the "Joint Venture", also referred to herein as the "Partnership") for the primary purpose of developing and managing the Business as the Partners may agree upon in writing.

Accordingly, the Partners hereby form and agree to conduct certain activities as a joint venture for the purposes hereinafter set forth and upon the following terms and conditions:

ARTICLE 1.

GENERAL PROVISIONS

Section 1.1 Purposes and Scope of Joint Venture.

1.1.1 Except as otherwise expressly provided for herein, the rights and obligations of the Partners and the administration and termination of the Joint Venture shall be governed by the laws of the state of Colorado. A Partner's interest in the Joint Venture shall be personal property for all purposes.

1.1.2 The Joint Venture business and affairs shall be limited strictly to the formation, development and management of the Business, and shall not be extended by implication or otherwise except by the written Agreement of the Partners.

1.1.3 The Partners hereby agree to the Joint Venture and the Business, as set forth in Appendix B.

Section 1.2 Joint Venture. The business and affairs of the Joint Venture shall be conducted through the Colorado limited liability limited company named "WOD Market LLC" (the “WOD”).

Section 1.3 Certificate of Formation. The certificate of formation of the WOD under the laws of the state of Colorado was filed on February 27, 2014.

 

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Section 1.4 Scope of Partner's Authority. Except as otherwise expressly and specifically provided in this Agreement, neither Partner shall have any authority to act for, or to assume any obligations or responsibility on behalf of, the other Partner or the Joint Venture, including, but not limited to any and all affiliates or related parties of the each Partner.

Section 1.5 Principal Place of Business. The principal office and place of business of the Joint Venture shall be maintained at 720 S. Colorado Blvd., PH North, Denver, CO 80246, or such other place or places as shall from time to time be designated by the Partners.

Section 1.6 Term. The Joint Venture shall commence upon the date of this Agreement and shall continue for a period ending December 31, 2018, or until otherwise amended or terminated as provided herein, whichever first occurs.

ARTICLE 2.

CONTRIBUTIONS, PARTICIPATION AND DISTRIBUTIONS

Section 2.1 Equity Ownership. WOD shall be owned initially by the Partners in the form of a percentage of ownership interests (hereinafter referred to as "Membership Interest(s)") as follows: (i) a total of eighty percent (80%) by WODH, and (ii) a total of twenty percent (20%) by DEAC, pursuant to Appendix B, attached hereto (the “Equity Ownership”), and agree not to treat the Business as contributed to the Partnership for purposes of determining capital accounts of the Partners, except as set forth in Section 2.2 below.

Section 2.2 Other Capital Contributions.

2.2.1 Upon execution of this Agreement, the Partners shall each be deemed to have contributed to the Joint Venture as a capital contribution into WOD those assets set forth in Appendix B. Except with respect to such initial capital contributions, the parties do not intend to make any other or further capital contributions. However, in the event additional capital contributions are required in connection with the operation, management, or ownership of the Business, and such additional funds cannot be borrowed by the Joint Venture or the respective Business, WODH and DEAC agree to contribute ALL such additional capital contributions as are necessary in the same proportion as their allocation of profits and losses under Section 2.3 or as mutually agreed upon at the time of such contribution.

Notwithstanding the forgoing, DEAC shall have the right to provide additional capital contributions into the Joint Venture, disproportional to WODH, as referenced in Appendix B, during the term of this Joint Venture, which would alter the Equity Ownership of WOD and future allocations between the Partners under Section 2.3.

2.2.2 If the Partners agree to sell all or any portion of the Joint Venture assets, if any assets are held by the Joint Venture directly, the net proceeds of such sale after paying all Joint Venture indebtedness shall be distributed as follows:

2.2.2.1 First, to the Partners to the extent necessary to return capital contributed to the Joint Venture by such Partners; and

2.2.2.2 Then, to all the Partners according to their respective Membership Interests.

 

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Section 2.3 Participation in Profits and Losses .

2.3.1 The net profits of the Partnership shall be divided and the net losses of the partnership shall be allocated to the Partners according to their respective Membership Interests. No interest or additional share of profits shall inure to any Partner by reason of its capital account being proportionately in excess of the capital accounts of the others.

2.3.2 The "cash available for distribution" for any fiscal year of the Joint Venture shall be the cash receipts of the Joint Venture during such fiscal year, less (i) the cash disbursements during such period (including principal and interest payments on all Joint Venture obligations) and (ii) any amounts which the Managing Partner reasonably determines to be necessary to be reserved to meet the needs of the Business. The cash available for distribution shall be distributed to and allocated among the Partners at such time as the Managing Partner shall determine, but at least annually, in accordance with their percentage of Membership Interests.

ARTICLE 3.

MANAGEMENT

Section 3.1 Approvals of Partners.

3.1.1 Managing Partner. The overall management and control of the business and affairs of the Joint Venture and of the Business shall be vested in the Partners, collectively. Except where herein expressly provided to the contrary, all decisions with respect to the management and control of the Joint Venture and of the Business shall require the prior consent of both WODH and DEAC (hereinafter referred to as the "Managing Partners") shall be responsible for the implementation of the decisions of the Partners and for conducting the ordinary and usual business and affairs of the Joint Venture as more fully set forth in Sections 3.2 and, hereof and as limited by this Agreement.

3.1.2 Major Decisions. No act shall be taken, sum expended, or obligation incurred by the Joint Venture of the Business, or any of the Partners with respect to a matter within the scope of any of the major decisions (the "Major Decisions") affecting the Joint Venture or of the Business, as defined below, unless such Major Decisions are first approved by all of the Partners in writing. The Major Decisions shall be the following:

3.1.2.1 Administrative and Management functions of the Joint Venture or of the Business;

3.1.2.2 Capitalization and Financing of the Joint Venture or of the Business;

3.1.2.3 The timing and amount of additional capital contributions by the Partners; and

3.1.2.4 Any agreement with the Managing Partner regarding compensation of the Managing Partner.

 

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3.1.3 Option to Buy in Event of Deadlock.

3.1.3.1 In the event one Partner refuses to so consent, approve, or agree (herein the "Nonconsenting Partner") with respect to matters properly raised under subparagraph 3.1.1 or 3.1.2 of this Section 3.1 and the aggregate percentage of Membership Interest represented by the Nonconsenting Partner is fifty percent (50%) or less, the Joint Venture or the consenting Partner may elect to purchase (and retire, if the purchaser is the Joint Venture) the interest of the Nonconsenting Partner in both the Joint Venture and the Business. In order to exercise this option to purchase, the Nonconsenting Partner must first be given written notice (the "Notice of Issue") specifying the exact nature of the matter which was raised and containing such other information as may be necessary to enable the Nonconsenting Partner to evaluate the proposal. Upon request by the Nonconsenting Partner, the party proposing the course of action shall supply the Nonconsenting Partner with such further information or documents as may be necessary in order to evaluate the proposal. Within twenty (20) days after the receipt by the Nonconsenting Partner of the Notice of Issue, the Nonconsenting Partner shall give written notice to the Joint Venture and the consenting Partner indicating whether the consent, approval, or agreement is refused; and if such notice is not given within the required time, such consent, approval, or agreement shall be deemed to have been refused as of the end of the twenty (20) days. The election to purchase shall be made by written notice given to the Nonconsenting Partner within forty-five (45) days after the date of receipt by the Joint Venture and the consenting Partner of this written notice of refusal or the date on which the Nonconsenting Partner is deemed to have given his notice of refusal, whichever is sooner.

3.1.3.2 In the event such an election to purchase is exercised, the Nonconsenting Partner shall be deemed to have resigned from the Joint Venture as of the date of exercise, and the valuation of the interest and the terms of payment shall be as provided in Section 4.4 or 4.5 .

3.1.3.3 If no election to purchase is exercised as provided herein, the requested consent, approval, or agreement shall be deemed to have been denied by all the Partners.

Section 3.2 Appointment and Replacement of Managing Partners. WODH, by and through Taryn Watson, and DEAC, by and through Brenton Mix, or such other agent or agents as it may appoint, shall be the Managing Partners of the Joint Venture and shall discharge or cause the discharge of the duties thereof unless and until replaced. The Managing Partners may be replaced upon vote of the Partner(s) having an aggregate of greater than fifty-one percent (51%) of the total percentage of Membership Interests.

Section 3.3 Duties of Managing Partners. The original Managing Partners or any replacement, at the expense and on behalf of the Joint Venture, shall in good faith use his best efforts to implement or cause to be implemented all Major Decisions approved by the Joint Venture and to conduct or cause to be conducted the ordinary and usual business and affairs of the Joint Venture. The following is a list of certain of the acts and duties for which the Managing Partners is responsible:

3.3.1 Having prepared by selected certified public accountants and delivered to each Partner within sixty (60) days after the end of each year, a Joint Venture information tax return for the Joint Venture and for each Partner, including an annual report of the Joint Venture containing a balance sheet and a statement of income and expenses, a statement of sources and uses of funds, and a statement of balances in the Capital and Drawing Accounts of the Partners. All such accounting is to be in accordance with generally accepted accounting principles;

 

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3.3.2 Selecting as the Joint Venture accounting year a calendar year or such fiscal year as approved by the Internal Revenue Service and the Partners and determining which generally accepted accounting method or methods shall be used by the Joint Venture;

3.3.3 Providing that all moneys of the Joint Venture shall be deposited in a bank account and signing such resolutions and signature cards as may be required by said bank; and

3.3.4 Maintaining all necessary records, obtaining necessary insurance, hiring and retaining personnel necessary to carry out the acts and duties noted above, auditing and paying bills and reasonable expenses incurred in the fulfillment of the management acts and duties set forth herein, and preparing and furnishing statements concerning collections and disbursements.

Section 3.4 Attorneys and Accountants. The Partners shall agree upon a law firm and an accounting firm to represent the Joint Venture. Individual Partner legal and accounting matters shall not be paid for by the Joint Venture.

Section 3.5 Consents and Approvals. In any instance under this Agreement in which the consent or approval of a Partner to any proposed action is required, such consent or approval shall be deemed to have been given unless written objection to such proposed action, stating with particularity the grounds therefor, is sent by such objecting Partner to the other Partners within twenty (20) days after receipt of a written request for such consent or approval.

Section 3.6 Restrictions. No Partner shall, without the consent of the other Partners, endorse any note, act as an accommodation party, otherwise become surety for any person, or do any act detrimental to the best interests of the Joint Venture or the Business or which would make it impossible to carryon the ordinary business of the Joint Venture or the Business. If the Joint Venture or the Business incur any loss, liability, or obligation arising out of unauthorized conduct by a Partner in violation of any provision of this Agreement, that Partner shall indemnify and hold the Joint Venture harmless from any such loss or liability to the extent it is not covered by a policy of insurance. The Managing Partner shall have the right to draw checks upon any bank account of the Joint Venture and to make, deliver, and accept commercial paper in connection with the Business of the Joint Venture. No Partner shall, except with the consent of the other Partners, assign, mortgage, grant a security interest in, or sell his share in the Joint Venture or in its capital assets or property or in the Property or enter into any agreement as a result of which any person shall become interested with him in the Joint Venture.

 

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Section 3.7 Books and Records. A complete set of books and records, truly and correctly reflecting the business transactions of the Joint Venture, shall be kept and maintained at the principal place of business of the Joint Venture and either Partner shall have access to and the right to inspect said books and records at any reasonable time.

Notwithstanding the foregoing, WOD and its Business had operations prior the execution of this Joint Venture, and as such, any and all prior accounting and prepared financial statements for such financial periods shall be incorporated into the books and records of the Joint Venture.

Section 3.8 Compensation of Partners.

3.8.1 No payments will be made by the Joint Venture to any Partner, except for compensation received by Partner whom is a Managing Partner as determined from time to time, or directly from the Business as set forth in separate agreements.

3.8.2 The Partners shall be reimbursed for all legal, accounting, and organizational costs incurred in connection with the Joint Venture prior to the date hereof. In the future, each of the Partners shall be reimbursed by the Joint Venture for authorized reasonable out-of-pocket expenses incurred by such Partner in connection with the business and affairs of the Joint Venture.

ARTICLE 4.

ASSIGNMENT

Section 4.1 Transfer Prohibited. No Partner may sell, transfer, assign, pledge, hypothecate or otherwise encumber or permit or suffer any encumbrance of all or any part of its interest in the Joint Venture or its interest in any of the Business (hereinafter collectively sometimes referred to as his "Interest"), including any involuntary transfer by operation of law or otherwise, except as provided in this Article 4, during the term of this Agreement, unless otherwise mutually agreed to by the Partners. Any attempt to so transfer or encumber any such Interest shall be void.

Section 4.2 Defaults and Involuntary Transfers. Each of the following shall constitute an "Event of Default":

4.2.1 If any Partner makes an assignment for the benefit of creditors or applies for appointment of a trustee, liquidator or receiver of any substantial part of his assets or commences any proceedings relating to himself under any bankruptcy (including Chapter XI) reorganization, arrangement or similar law;

4.2.2 If any such application is filed or proceeding is commenced against any Partner and such Partner indicates his consent thereto or an order is entered appointing a trustee, liquidator or receiver or approving the petition in any such proceeding which order remains in effect for more than sixty (60) days;

 

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4.2.3 If any sale or other transfer of any Interest, whether made voluntarily or by operation of law or by the virtue of enforcement of any pledge or encumbrance is made contrary to the provisions hereof;

4.2.4 If any Partner or transferee thereof institutes any proceeding in a court of competent jurisdiction for sale or partition of an interest in the Joint Venture or the Business;

4.2.5 In the event a Partner fails to pay his respective share of Joint Venture obligation, including but not limited to his additional capital contribution pursuant to Section 2.2 , at the time the same is due and payable, time being of the essence thereof; provided, however, that the remaining Partner may at its option advance and pay such share. The amount so advanced and paid shall constitute a debt due and owing by the delinquent Partner and shall be paid upon demand, with interest from the date of payment until repaid, at the rate of twelve percent (12%) or the highest rate allowed by law, whichever is less. Such advances shall be deemed to cure the default; provided, however, that at any time before such indebtedness is repaid the Partner making such advance may, by thirty (30) days' notice in writing to the delinquent Partner require payment or withdrawal and purchase of the Interest of the delinquent Partner as provided in Section 4.4, and apply said debt to the purchase price; or

4.2.6 If a Partner breaches a material provision of this Agreement and fails to cure said breach within thirty (30) days after receiving written notice from the Joint Venture or the non-defaulting Partner specifying the nature of the breach.

Section 4.3 Voluntary Transfer. If a Partner desires to sell all or any part of its Interest or has received an offer to purchase and desires to accept such offer, it shall first offer to sell such Interest to the other Partner, in writing, as follows:

4.3.1 Such offer shall be addressed by the selling Partner to the Non-selling Partner at his address as listed below and be mailed, postage prepaid, by registered or certified mail. The offer of sale shall contain the price for which such Interest is offered for sale and shall include the name and address of such person or persons and the terms of the offer of purchase received.

4.3.2 If the Non-selling Partner wishes to purchase such Interest offered for sale, he shall advise the selling Partner forthwith within forty-five (45) days of receipt of the notice of sale. The Non-selling Partner shall be deemed to have consented to the proposed sale if he fails to give the necessary notice within the forty-five (45) day period and to purchase the Interest pursuant to the terms of the offer.

4.3.3 If the Non-selling Partner does not wish to purchase such Interest as provided in the terms of the selling Partner's offer, then the Non-selling Partner shall either give the selling Partner notice of his election to (i) permit the selling Partner to sell such Interest or (ii) require that all Joint Venture related Interest be sold and the Joint Venture dissolved and terminated pursuant to Article 5 . Such notice of election must be given within forty-five (45) days from the date on which the Non-Selling Partner received notice of the proposed sale. If the Non-Selling Partner shall fail to exercise the right herein granted to purchase such Interest or to require that all of the Interest owned by the Joint Venture or separately by the Partner be sold, then the selling Partner shall be free to transfer such Interest in accordance with the terms and conditions and to the person described in his offer of sale, for a consideration not less than that stated in his offer of sale, but not otherwise.

 

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Section 4.4 Sale to Remaining Partner. Upon the occurrence of:

4.4.1 An Event of Default, as defined in Section 4.2 ; or

4.4.2 A deadlock with respect to a Major Decision, followed by the effective election to purchase by a consenting Partner under Section 3.1 ; or

4.4.3 The election by a Partner to withdraw from the Joint Venture, which election shall be exercised by giving the other Partner written notice, the Nondefaulting Partner, the Nonwithdrawing Partner, or the consenting Partner, as the case may be, shall have the right and option to terminate the Joint Venture by purchasing the defaulting, withdrawing, or Nonconsenting Partner's Interest as provided below in this Section 4.4 or to dissolve and terminate the Joint Venture pursuant to Sections 5.1 and 5.2 . (Such Nondefaulting, Nonwithdrawing, or consenting Partner shall hereinafter be referred to as the "Remaining Partner," and the other Partner shall hereinafter be referred to as the "Selling Partner"). The option of the Remaining Partner to purchase the Interest of the Selling Partner shall be exercised by serving notice of intention to purchase upon the Selling Partner within forty-five (45) days after receiving notice of the Event of Default or notice of nonconsent or withdrawal, as the case may be. The purchase price shall be equal to ninety percent (90%) of the valuation as determined under Section 4.5 below and shall be payable, together with interest at the rate of twelve percent (12%) per annum, in four (4) equal semiannual installments sufficient to amortize repayment over a period of two (2) years. The first payment shall be due three (3) months after the date of exercise of the option, and subsequent payments shall be due on the same date thereafter until paid in full. The interest of the Selling Partner shall immediately vest in the purchaser upon delivery of notice of exercise of the option to purchase thereunder. Except in the case of a sale of Interests following the occurrence of an Event of Default (in which case the defaulting Partner shall pay the entire appraisal or business valuation fee, if one is required), the Selling and Remaining Partners shall each pay one-half (1/2) the costs of the appraisal or business valuation, if one is required, and the Selling Partner shall immediately execute and deliver to the Remaining Partner a Bill of Sale in a form sufficient to convey all of the Selling Partner's Interest, including all interest in the Business and all other Business owned by the Joint Venture or each Partner separately, to the Remaining Partner. To evidence and secure the obligation of the Remaining Partner to pay the balance of the purchase price, the Remaining Partner shall execute all applicable documentation required to effect to sale (with reasonable release provisions) with respect to the Selling Partner's Interest. In the case of a sale pursuant to an Event of Default, this option to purchase shall be in addition to and not in substitution for any right afforded by law such as damages and other relief not inconsistent therewith; and in the event of any inconsistency between remedies provided by law and under this Agreement, the Partner not having breached this Agreement shall have the option to elect among any such rights and remedies. In the event the Remaining Partner declines to purchase the Selling Partner's Interest, the Remaining Partner may elect to have the Joint Venture dissolved and terminated pursuant to Sections 5.1 and 5.2 .

 

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Section 4.5 Valuation. In the event the Partners are unable to agree, the value of the Interest of a Selling Partner in the Joint Venture and the Business shall be determined as of the date of such sale. In the event the buyer and seller are not able to agree upon the fair market value at any such time, they shall agree to the use of a metric which shall be the greater of (a) the total Capital Contribution of the Selling Partner on the date of sale or (b) the stated corporate valuation of the Business from the most recent debit or equity financing, respectively, to determine the value of the Interest in the Joint Venture, and the same shall be binding on all parties. The price for the Interest in the Joint Venture or the Business shall be its net book value, as determined by the public accountants regularly employed by the Joint Venture or the Business, or if there be none, by a certified public accountant acceptable to the Remaining Partner, as of the last day of the month preceding the event triggering the determination. Such determination shall be made, to the extent practicable, in accordance with generally accepted accounting practices and principles, consistently applied and, in the absence of fraud, shall be conclusive and binding upon the parties.

ARTICLE 5.

DISSOLUTION AND TERMINATION

Section 5.1 Dissolution. The Joint Venture shall be deemed dissolved upon the occurrence of any of the following events:

5.1.1 The agreement of the Partners;

5.1.2 The election of a Remaining Partner to dissolve and terminate the Joint Venture in the event of the Remaining Partner (i) objects to a proposed sale and declines to purchase the Selling Partner's Interest as provided in Section 4.3 or (ii) declines to purchase the withdrawing Partner's Interest pursuant to Section 4.4 ; or

5.1.3 The death or incompetence of any Partner.

Section 5.2 Termination. Upon dissolution for the reasons stated in Section 5.1.1 , 5.1.2 , or 5.1.3 , the Joint Venture shall terminate and be wound up. The Joint Venture assets shall thereupon be sold (and any Partner may be a purchaser of all or any portion thereof), its liabilities paid or provided for, and the remaining assets distributed to and among the Partners pro rata in accordance with their capital accounts, without undue delay. Any remaining profits shall be distributed pro rata in accordance with the Partners' capital accounts as they stood prior to the making of the distribution required under terms of the preceding sentence. Neither the dissolution nor termination of the Joint Venture, however, shall affect the rights of any purchaser of a Partner's interest in the Business. If there are any liabilities remaining in the Joint Venture, then each Partner is responsible for such liabilities on a pro-rata basis of Partnership Ownership Percentage Interests held, payable in the form of additional Capital Contribution to settle such obligations of the Joint Venture.

 

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or to such other addresses as the parties may from time to time designate in writing. All notices shall be deemed received on the date the postmark is affixed by the United States Postal Service.

Section 6.2 Counterparts . This Agreement may be signed in one or more counterparts.

Section 6.3 Governing Law. This Agreement and the obligation of the Partners hereunder shall be interpreted, construed and enforced in accordance with the laws of the State of Colorado.

 

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Section 6.4 Entire Agreement. This Agreement contains the entire agreement between the parties hereto relative to the formation, operation, termination and dissolution of the Joint Venture. No variations, modifications, or changes herein or hereof shall be binding upon either party hereto unless set forth in a writing signed by the parties hereto.

Section 6.5 Waiver. No consent or waiver, express or implied, by any Partner to or of any breach or default by the other in the performance by the other of his obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other party of the same or any other obligations of such Partner hereunder.

Section 6.6 Other Interests. Each Partner may deal with the Joint Venture, may have other business interests, may engage in any other business or trade, profession or employment whatsoever, and may own, sell, and deal in other entities for its own account, either separately or in combination with others and shall not be required to devote his entire time to the business of the Joint Venture.

Section 6.7 Partition . Each Partner irrevocably waives any and all right he may have to maintain any action for partition as to its undivided interest in the Joint Venture or the Business, or to compel any sale of the Joint Venture or the Business under any law or laws now existing or hereinafter enacted.

[Signature Pages to Follow]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

	DEAC
	ELITE DATA SERVICES INC.,
	a Florida Corporation
	By:	/s/ Brenton Mix
		Brenton Mix
		Chief Executive Officer
	WODH
	WOD HOLDINGS INC.,
	a Delaware corporation
	By:	/s/ Taryn Watson
		Taryn Watson
		President

 

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APPENDIX A

The Business of the Joint Venture to be formed by the Partners shall be the continuation of the current business of WOD as a provider of intelligent retail solutions for gym owners and coaches to lessen the burden of managing retail sales, including up front inventory purchases, ongoing inventory management, payments, marketing, etc., while also providing a service for member athletes to have convenient access to products that help them perform better.

The Partners hereby agree that any and all assets and liabilities of WOD from its prior and current operations as of the date of execution of this Agreement shall be the included into the initial books and records reflected by the formation of this Joint Venture.

 

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APPENDIX B

Pursuant to the terms of the Amendment No. 2 to the WOD Definitive Agreement (the “Amendment No. 2”), on even date herewith, incorporated by referenced herein, DEAC and WODH have agreed to the following terms for the initial and additional capital contributions:

(a) Initial Capital Contribution . Pursuant to the First Closing of the WOD Definitive Agreement, as amended, of which Agreement is referenced as Exhibit 1, and for the fact that WOD, as of the date hereof, is a controlled subsidiary of WODH, the initial capital contribution by DEAC shall be in the form of an equity exchange between DEAC and WODH, in which a total of 200 WOD Units, representing a total of twenty percent (20%) of the Equity Ownership of WOD shall be transferred from WODH to DEAC, with the remaining 800 WOD Units retained by WODH, pursuant to Schedule 1.1 and 1.2 of the WOD Definitive Agreement.

(b) Additional Capital Contributions. At the sole discretion of DEAC, additional capital contributions into the Joint Venture (the “Additional Capital Contributions”) may be provided by DEAC, from time to time, which may be disproportional to WOD Controlling Members capital contributions, in order to provide WOD with growth capital as determined by the Partners, which shall be made in increments of not less than (a) $10,000 for each contribution up to a total of US $3,000,000 in the aggregate (the “Initial Capital Threshold”), (b) $1,000,000 for a follow-on contribution up to a total of US $4,000,000 in the aggregate (the “Second Capital Threshold”), and (c) $100,000 for each subsequent contribution up to a total of US $8,000,000 in the aggregate (the “Final Capital Threshold”).

As a condition of DEAC’s option (or right) to provide Additional Capital Contributions, s described herein, the Partners have mutually agreed to in advance to the exchange of a certain number of WOD Units for a certain number of shares of Series B Preferred Stock and Common Stock of DEAC, collectively referred to as (the “Equity Exchanges”), pursuant to Schedule 1.2 of the WOD Definitive Agreement.

In the event DEAC provides Additional Capital Contributions to the WOD, pursuant to the terms of the Joint Venture, and as set forth in Schedule 1.1(a)(iii) of the WOD Definitive Agreement, in increments of not less than US$10,000 per occurrence, DEAC and WOD Controlling Members shall also be entitled to Equity Exchanges, equal to: (x) one (1) WOD Unit assigned and transferred to DEAC from WOD Controlling Members, for (y) two hundred forty-nine (249) shares of Series B Preferred Stock of DEAC, and twenty-four thousand six hundred twenty-six (24,626) shares of Common Stock of DEAC, post reverse split 1000:1, earmarked to WOD Controlling Members, from the total of all the New DEAC Shares held in Trust for the benefit of WOD Controlling Members, if the Final Capital Threshold is completed.

A series of subsequent closings (each referred to as the Closing in this Agreement) shall occur from time to time, each time DEAC decides to provide the Joint Venture with Additional Capital Contributions (the “Subsequent Closing(s)”), which shall also trigger the proportional Equity Exchanges, as set forth herein.

Please refer to Schedules 1.1 and 1.2 of the WOD Definitive Agreement for more details related to the above terms and conditions.

 

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EXHIBIT 10.95

ELITE DATA SERVICES INC.

INDEPENDENT CONTRACTOR AGREEMENT

(Brenton Mix)

This INDEPENDENT CONTRACTOR AGREEMENT (the “Agreement”) is made and entered into as of March 14, 2017 (the “Effective Date”), by and between ELITE DATA SERVICES INC., a Florida Corporation (“Company”), and BRENTON MIX, an individual (collectively referred to as the “Contractor”).

1. Engagement . Subject to the terms and conditions of this Agreement, the Company hereby engages the Contractor to perform the services set forth herein, and Contractor hereby accepts such engagement.

2. Duties, Term, and Compensation . Contractor’s duties, term of engagement, compensation and provisions for payment thereof shall be as set forth in Schedule I, which may be amended in writing from time to time in accordance with Section 22 hereof, or supplemented with subsequent payments for services to be rendered by Contractor and agreed to by the Company, and which collectively are hereby incorporated by reference. During the term of this Agreement, Contractor shall devote as much of its productive time, energy and abilities to the performance of its duties hereunder as is necessary to perform the required duties in a timely and productive manner. The Contractor is expressly free to perform services for other parties while performing services for the Company.

3. Expenses . During the term of this Agreement, Contractor shall bill and the Company shall reimburse Contractor for all reasonable and out-of-pocket expenses incurred in connection with the performance of the duties hereunder, such expenditures shall be approved by the Company in writing prior to being incurred by the Contractor.

4. Written Reports . The Company may periodically request progress reports be provided by Contractor. The reports shall be written and in such form as is reasonably requested by the Company.

5. Independent Contractor . This Agreement shall not render the Contractor or any of its affiliates, an officer, director, employee, partner, agent of, or partner in a joint venture with the Company for any purpose, unless otherwise agreed to in writing by Company. The Contractor is and will remain an independent contractor, as defined in Internal Revenue Service Publication 15-A, in its relationship to the Company. The Company shall not be responsible for any withholding taxes with respect to the Contractor’s compensation hereunder. The Contractor shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.

6. Inventions . Except as otherwise agreed to by the Company in writing, any and all writings, inventions, discoveries, formulations, improvements, processes, procedures, techniques, developments and innovations which Contractor makes, conceives, discovers or develops, either solely or jointly with any other person or persons, whether or not during working hours and whether or not at the request or upon the suggestion of the Company or any of its affiliates, which relate to or are useful in connection with the specific products manufactured and sold by the Company, at any time during the term of this Agreement, shall be the sole and exclusive property of the Company. Contractor shall make full disclosure to the Company of all such writings, inventions, discoveries, formulations, improvements, processes, procedures, techniques, developments and innovations and shall, at the Company’s request, do everything necessary or desirable to vest the absolute title thereto in the Company. Any and all writings, inventions, discoveries, formulations, improvements, processes, procedures, techniques, developments and innovations which Contractor has made, conceived, discovered or developed, either solely or jointly with any other person or persons, prior to the commencement of this Agreement and utilized by Contractor in rendering its duties to the Company are hereby licensed to the Company for use in its operations and for an infinite duration. This license is non-exclusive, and may be assigned without the Contractor’s prior written approval by the Company to an affiliate of the Company.

 

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7. Confidentiality . Contractor acknowledges that during the performance of its duties and obligations pursuant to this Agreement, Contractor may receive, learn or otherwise become aware of information regarding the Company including without limitation its business methods, strategies, policies, procedures, techniques, research, historical or projected financial information, budgets, trade secrets, or any other confidential information of or relating to or dealing with the business operations, activities or strategies of the Company (“Confidential Information”). Contractor shall not use, disclose or communicate any of Confidential Information other than for the purpose of fulfilling Contractor’s duties and obligations under this Agreement. Contractor shall not disclose or communicate Confidential Information, except to those individuals or entities who are directly involved in Contractor’s performance under this Agreement, each of such individuals or entities having first agreed, in writing, to be bound by the provisions of this paragraph. All memoranda, notes, lists, records, files documents and other papers and like items (and all copies, extracts and summaries thereof) made or compiled by Contractor or made available to Contractor containing Confidential Information or concerning the business of the Company shall be the Company’s property and shall be returned to the Company promptly upon termination of this Agreement or at any other time upon request by the Company. Confidential Information shall not include information (i) known to or owned by Contractor prior to the date of this Agreement, (ii) developed by Contractor independent of the Company, (iii) that was at the time of disclosure to Contractor or thereafter became public acknowledge through no fault or omission of Contractor; or, (iv) was lawfully obtained by Contractor from a third party under no obligation of confidentiality to the Company. For purposes of this paragraph, the term “Contractor” includes without limitation the Contractor and its subsidiaries and their respective officers, directors, employees, consultants, advisors, agents, contractors and subcontractors.

8. Non-Solicitation . For a period of twelve (12) months following the termination of this Agreement, the Contractor shall not, for its own benefit or the benefit of any third party, directly or indirectly, induce or attempt to influence any current, former or prospective employee, consultant, contractor, customer, independent contractor, vendor or supplier of the Company or any of its affiliates to terminate, diminish, or not establish an employment or other relationship with the Company or any of its affiliates.

9. Right to Injunction . The parties hereto acknowledge that the services to be rendered by the Contractor under this Agreement and the rights and privileges granted to the Company under the Agreement are of a special, unique, unusual, and extraordinary character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated by damages in any action at law, and the breach by the Contractor of any of the provisions of this Agreement will cause the Company irreparable injury and damage. The Contractor expressly agrees that the Company shall be entitled to injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Agreement by the Contractor. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that the Company may have for damages or otherwise. The various rights and remedies of the Company under this Agreement or otherwise shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law.

10. Termination . The Company may terminate this Agreement at any time by thirty (30) days’ written notice to the Contractor; provided, however, that this Agreement shall terminate immediately upon written notification to the Contractor in the event of Contractor’s termination for “Cause.” In the event that the Company terminates this Agreement without Cause, Contractor shall continue to receive the payments defined in Schedule I hereto, for period ninety (90) days after the date of termination. Notwithstanding Company’s termination rights herein, Contractor may terminate this Agreement at any time by sixty (60) days’ written notice to the Company, however, Contractor shall not be entitled to receive any payments beyond the date of termination.

 

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11. Termination by Company for Cause . Termination for any of these events shall constitute termination for “Cause”:

11.1 if the Contractor or any of its affiliates is convicted of, or enters a plea of nolo contendere (or similar plea) with respect to, any crime or offense, fails or refuses to comply with Company rules, policies, procedures or plan, approved and effective at such time, or express direction of the Company’s Board of Directors, commits any act of fraud, personal dishonesty or misappropriation relating to or involving the Company, materially breaches or neglects the any provision of this Agreement, including if Contractor or any of its affiliates performs its duties in an incompetent manner as may be determined by the Board of Directors in its sole discretion.

11.2 if a majority of the unaffiliated directors, if any, determines that the Contractor has violated this Agreement in any respect and, after notice of such violation, the Contractor has failed to cure such violation within 30 days; or

11.3 there is entered an order for relief or similar decree or order with respect to the Contractor by a court having competent jurisdiction in an involuntary case under the federal bankruptcy laws as now or hereafter constituted or under any applicable federal or provincial bankruptcy, insolvency or other similar laws; or the Contractor:

	11.3.1	ceases, or admits in writing its inability, to pay its debts as they become due and payable, or makes a general assignment for the benefit of, or enters into any composition or arrangement with, creditors;
	11.3.2	applies for, or consents, by admission of material allegations of a petition or otherwise, to the appointment of a receiver, trustee, assignee, custodian, liquidator or sequestrator, or other similar official, of the Contractor or of any substantial part of its properties or assets, or authorizes such an application or consent, or proceedings seeking such appointment are commenced without such authorization, consent or application against the Contractor and continue undismissed for 60 days;
	11.3.3	authorizes or files a voluntary petition in bankruptcy, or applies for or consents, by admission of material allegations of a petition or otherwise, to the application of any bankruptcy, reorganization, arrangement, readjustment of debt, insolvency, dissolution, liquidation or other similar law of any jurisdiction, or authorizes such application or consent, or proceedings to such end are instituted against the Contractor without such authorization, application or consent and are approved as properly instituted and remain undismissed for 60 days or result in adjudication of bankruptcy or insolvency; or
	11.3.4	permits or suffers all or any substantial part of its assets to be sequestered or attached by court order and the order remains undismissed for 60 days. If any of the events specified above shall occur, the Contractor shall give prompt written notice thereof to the Board of Directors upon the happening of such event.

11.4 Contractor or any of its affiliates engages in the unauthorized disclosure of Confidential Information and/or provides services for any other client, company or organization other than Company.

 

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12. Action Upon Termination . From and after the effective date of termination of this Agreement, except as otherwise specified herein, the Contractor shall not be entitled to compensation for further services, other than reimbursement of appropriately documented and approved expenses incurred by Contractor before the termination of this Agreement, to the extent that Contractor would have been entitled to such reimbursement but for the termination of this Agreement.

13. Representations and Warranties.

13.1 The Company represents and warrants to the Contractor as follows:

	13.1.1	The Company is duly organized, validly existing and in good standing under the laws of Florida, has the power to transact the business in which it is now engaged and is duly qualified and in good standing under the laws of each jurisdiction where the conduct of its business requires such qualification, except for failures to be so qualified, authorized or licensed that could not in the aggregate have a material adverse effect on the business operations, assets or financial condition of the Company and its subsidiaries, taken as a whole. The Company does not do business under any fictitious business name.
	13.1.2	The Company has the power and authority to execute, deliver and perform this Agreement and all obligations required and have taken all necessary actions to authorize this Agreement and the execution, delivery and performance of this Agreement and all obligations required. Except as shall have been obtained, no consent of any other person including, without limitation, stockholders and creditors of the Company, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required by the Company in connection with this Agreement or the execution, delivery, performance, validity or enforceability of this Agreement and all obligations required. This Agreement has been, and each instrument or document required will be, executed and delivered by a duly authorized officer of the Company, and this Agreement constitutes, and each instrument or document required when executed and delivered hereunder will constitute, the legally valid and binding obligation of the Company enforceable against the Company in accordance with its terms.
	13.1.3	The execution, delivery and performance of this Agreement and the documents or instruments required will not violate any provision of any existing law or regulation binding on the Company, or any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Company, or the governing instruments of, or any securities issued by, the Company or of any mortgage, indenture, lease, contract or other Agreement, instrument or undertaking to which the Company is a party or by which the Company or any of its assets may be bound, the violation of which would have a material adverse effect on the business operations, assets or financial condition of the Company and its subsidiaries, taken as a whole, and will not result in, or require, the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreement, instrument or undertakings.

 

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13.2 The Contractor represents and warrants to the Company that:

	13.2.1	The Contractor is duly organized and/or domiciled, validly existing and in good standing under the laws of Colorado, has the corporate or individual power to transact the business in which it is now engaged and is duly qualified to do business and is in good standing under the laws of each jurisdiction where the conduct of its business requires such qualification, except for failures to be so qualified, authorized or licensed that could not in the aggregate have a material adverse effect on the business operations, assets or financial condition of the Contractor, taken as a whole. The Contractor does not do business under any fictitious business name.
	13.2.2	The Contractor has the corporate or individual power and authority to execute, deliver and perform this Agreement and all obligations required and has taken all necessary corporate action to authorize this Agreement and the execution, delivery and performance of this Agreement and all obligations required. Except as shall have been obtained, no consent of any other person including, without limitation, creditors of the Contractor, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required by the Contractor in connection with this Agreement or the execution, delivery, performance, validity or enforceability of this Agreement and all obligations required. This Agreement has been and each instrument or document required will be executed and delivered by a duly authorized officer of the Contractor, and this Agreement constitutes, and each instrument or document required when executed and delivered will constitute, the legally valid and binding obligation of the Contractor enforceable against the Contractor in accordance with its terms.
	13.2.3	The execution, delivery and performance of this Agreement and the documents or instruments required, will not violate any provision of any existing law or regulation binding on the Contractor, or any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Contractor, or the governing instruments of, or any securities issued by, the Contractor or of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which the Contractor is a party or by which the Contractor or any of its assets may be bound, the violation of which would have a material adverse effect on the business operations, assets, or financial condition of the Contractor and its subsidiaries, taken as a whole, and will not result in, or require, the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage indenture, lease, contract or other agreement, instrument or undertaking.
	13.2.4	In rendering its duties under this Agreement, the Contractor shall not utilize any invention, discovery, development, improvement, innovation, or trade secret in which it does not, or the Company does not, have a proprietary interest.

14. Merger . This Agreement shall not be terminated by the merger or consolidation of the Company into or with any other entity.

15. Successors and Assigns . This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors, heirs, personal representatives, and permitted assigns.

 

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16. Choice of Law . This Agreement will be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Florida.

17. Arbitration . Any controversies arising out of the terms of this Agreement or its interpretation shall be settled in Orange County, Florida in accordance with the rules of the American Arbitration Association, and the judgment upon award may be entered in any court having jurisdiction thereof.

18. Headings . Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.

19. Assignment . Neither the Company nor the Contractor shall assign any of its rights under this Agreement, or delegate the performance of any of its duties hereunder, without the prior written consent of both parties.

20. Notices . Any and all notices, demands, or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given five days after deposit thereof in the United States mail addressed to the party to whom such notice, demand or other communication is to be given as follows:

Any party hereto may change its address for purposes of this paragraph by written notice given in the manner provided above.

21. Amendments; Waivers . No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by each party or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party will be deemed to constitute a waiver by the party taking such action, or compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.

 

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22. Entire Understanding . This Agreement represents the entire agreement of the parties hereto with respect to the matters contemplated hereby, and there are no written or oral representations, warranties, understandings or agreements with respect hereto, except as expressly set forth herein.

23. Unenforceability of Provisions . If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired hereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.

24. Counterparts. This Agreement may be executed via facsimile in one or more counterparts and transmitted via facsimile or PDF, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. When counterparts of copies have been executed by all parties, they shall have the same effect as if the signatures to each counterpart or copy were upon the same document and copies of such documents shall be deemed valid as originals.

[Signatures Follow On Next Page]
 

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IN WITNESS WHEREOF the undersigned have executed this Agreement as of the day and year first written above.

	COMPANY
	ELITE DATA SERVICES INC.
	A Florida Corporation
	By:	/s/ Richard Phillips
		Richard Phillips,
		Sec., Treas. & Director
	CONTRACTOR
	By:	/s/ Brenton Mix
		Brenton Mix,
		Individually

 

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SCHEDULE I

DUTIES, TERM, AND COMPENSATION

1. DUTIES . The Company has engaged the Contractor perform services related to overseeing and managing the development and execution of the Company’s long-term strategy with a view to creating shareholder value in the capacity of Chief Executive Officer (“CEO”), President and Chief Financial Officer (“CFO”).

The CEO/President’s leadership role also entails being ultimately responsible for all day-to-day management decisions and for implementing the Company’s long and short term plans. The CEO/President acts as a direct liaison between the Board and management of the Company and communicates to the Board on behalf of management. The CEO/President also communicates on behalf of the Company to shareholders, employees, Government authorities, other stakeholders and the public.

More specifically, the duties and responsibilities of the CEO/President include the following:

	·	to lead, in conjunction with the Chairman and the Board, the development of the Company’s strategy;
	·	to lead and oversee the implementation of the Company’s long and short term plans in accordance with its strategy;
	·	to ensure the Company is appropriately organized and staffed and to have the authority to hire and terminate staff as necessary to enable it to achieve the approved strategy;
	·	to ensure that expenditures of the Company are within the authorized annual budget of the Company;
	·	to assess the principal risks of the Company and to ensure that these risks are being monitored and managed;
	·	to ensure effective internal controls and management information systems are in place;
	·	to ensure that the Company has appropriate systems to enable it to conduct its activities both lawfully and ethically;
	·	to ensure that the Company maintains high standards of corporate citizenship and social responsibility wherever it does business;
	·	to act as a liaison between management and the Chairman and the Board;
	·	to communicate effectively with shareholders, employees, Government authorities, other stakeholders and the public;

 

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	·	to keep abreast of all material undertakings and activities of the Company and all material external factors affecting the Company and to ensure that processes and systems are in place to ensure that the Chairman and the Board are adequately informed;
	·	to ensure that the Chairman and the Company’s Directors are properly informed and that sufficient information is provided to the Board to enable the Directors to form appropriate judgments;
	·	to ensure the integrity of all public disclosure by the Company;
	·	in concert with the Chairman, to develop Board agendas; to request that special meetings of the Board be called when appropriate;
	·	in concert with the Chairman, to determine the date, time and location of the annual meeting of shareholders and to develop the agenda for the meeting;
	·	to sit on committees of the Board where appropriate as determined by the Board; and
	·	to abide by specific internally established control systems and authorities, to lead by personal example and encourage all employees to conduct their activities in accordance with all applicable laws and the Company’s standards and policies, including its environmental, safety and health policies.

 

The CFO’s leadership role also entails being ultimately responsible for all day-to-day administrative, financial, and risk management operations of the Company, to include the development of a financial and operational strategy, metrics tied to that strategy, and the ongoing development and monitoring of control systems designed to preserve company assets and report accurate financial results.

More specifically, the duties and responsibilities of the CFO include the following:

	·	demonstrating ethical leadership and business integrity;
	·	balancing short-term concerns and pressures, such as managing cash, liquidity, and profitability, and long-term vision and sustainable organizational success;
	·	fulfilling stewardship responsibilities by ensuring effective compliance and control and responding to ever increasing regulatory developments, including financial reporting, capital requirements, and corporate responsibility;
	·	sharing strategic leadership responsibilities with the CEO and other senior managers and ensuring the F&A function supports the business at a strategic and operational level;
	·	driving and managing change and innovation within the organization; and
	·	engaging and communicating effectively with colleagues, investors, customers, suppliers, regulators, and other internal and external stakeholders.

 

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The Board of Directors reserve the right to amend the Duties and Responsibilities set forth in this Schedule I, from time to time, during the Initial Term of this Agreement, as deemed necessary.

2. TERM . The term of this Agreement shall begin as of the date hereof (“Effective Date”) and shall end on the third anniversary date (the “Initial Term”) following the Effective Date unless terminated earlier as provided in this Agreement. Following expiration of the Initial term, this Agreement shall continue for two (2) successive one (1) year term unless either party shall notify the other at least thirty (30) days prior to the end of the then term that such party is terminating this Agreement.

3. COMPENSATION .

3.1 Salary. Subject to the terms of this Agreement, as compensation for Contractor’s services, the Company shall pay Contractor a monthly fee in cash equal to Ten Thousand Five Hundred Dollars (USD $10,000.00) for the first year, Twelve Thousand Five Hundred Dollars (USD $12,500.00) for the second year, Fifteen Thousand Dollars (USD $15,000.00) for the third year, and Twenty Thousand Dollars (USD $20,000.00) for subsequent terms, unless otherwise agreed to in writing by the Board of Directors, to be paid on the 1 ^st business day of each month, starting on the date of execution of this Agreement. In the event one or more payments to the Consultant is not made within thirty (30) business days of the due date, then Consultant may elect in writing to require the Company to make such payment in the form of shares of restriction common stock of the Company, pursuant to the terms and conditions of the Company’s Stock Option Plan then in effect. Any and all payments due and payable to Consultant in the form of cash and/or stock compensation as set forth hereinabove shall be paid to Consultant and/or assigns.

3.2 Stock Option Plan . The Company may, from time to time, enter into supplemental agreements or memorandums in writing with Contractor for the award and payment to Contractor of additional compensation, including increases in the aforesaid salary, bonuses, or stock incentives upon such terms and conditions as the Company shall deem to be in its best interest and in the event of the execution by the Company of any such agreements or memoranda, the right of Contractor to additional compensation or bonuses shall be determined in accordance with applicable provisions thereof, subject, however, to the provisions hereinafter set forth. The amount of any bonus or stock incentive may be increased or decreased and the amount of any additional compensation to be received by Contractor from the Company is within the sole and absolute discretion of the Company’s Board of Directors, pursuant the Company’s Equity Incentive Stock Plan (the “Stock Plan”), as approved as of August 27, 2017, which gives the Company the right to grant certain stock awards or options to employees, directors and/or consultants of the Company or any of its subsidiaries.

3.3 Expenses . In addition to the compensation described in Paragraph 3.1. above, Contractor shall be entitled to reimbursement by the Company for all actual, reasonable and direct expenses incurred by him in the performance of his duties hereunder, provided such expenses (i) are business expenses that are properly tax deductible for the Company (ii) were pre-approved by an appropriate officer of the Company and (iii) were otherwise incurred in accordance with the policies and procedures established by the Company from time to time. Contractor shall provide the Company with written documentation of any expenses submitted for reimbursement as required by Company policy and reimbursement for each item of approved expense shall be made within a reasonable time.

4. OTHER ENGAGEMENT .

In addition to the duties and responsibilities of the Consultant as set forth in Section 1 in this Schedule I, the Consultant (Brenton Mix) is also currently the Chairman of the Board of Directors of the Company, pursuant to the executed Board Member Services Agreement (“Board Services Agreement”), dated January 10, 2017.

EXHIBIT 10.96

ELITE DATA SERVICES INC.

INDEPENDENT CONTRACTOR AGREEMENT

(Richard Phillips)

This INDEPENDENT CONTRACTOR AGREEMENT (the “Agreement”) is made and entered into as of this March 14, 2017 (the “Effective Date”), by and between ELITE DATA SERVICES INC., a Florida Corporation (“Company”), and RICHARD PHILLIPS, an individual (collectively referred to as the “Contractor”).

1. Engagement . Subject to the terms and conditions of this Agreement, the Company hereby engages the Contractor to perform the services set forth herein, and Contractor hereby accepts such engagement.

2. Duties, Term, and Compensation . Contractor’s duties, term of engagement, compensation and provisions for payment thereof shall be as set forth in Schedule I, which may be amended in writing from time to time in accordance with Section 22 hereof, or supplemented with subsequent payments for services to be rendered by Contractor and agreed to by the Company, and which collectively are hereby incorporated by reference. During the term of this Agreement, Contractor shall devote as much of its productive time, energy and abilities to the performance of its duties hereunder as is necessary to perform the required duties in a timely and productive manner. The Contractor is expressly free to perform services for other parties while performing services for the Company.

3. Expenses . During the term of this Agreement, Contractor shall bill and the Company shall reimburse Contractor for all reasonable and out-of-pocket expenses incurred in connection with the performance of the duties hereunder, such expenditures shall be approved by the Company in writing prior to being incurred by the Contractor.

4. Written Reports . The Company may periodically request progress reports be provided by Contractor. The reports shall be written and in such form as is reasonably requested by the Company.

5. Independent Contractor . This Agreement shall not render the Contractor or any of its affiliates, an officer, director, employee, partner, agent of, or partner in a joint venture with the Company for any purpose, unless otherwise agreed to in writing by Company. The Contractor is and will remain an independent contractor, as defined in Internal Revenue Service Publication 15-A, in its relationship to the Company. The Company shall not be responsible for any withholding taxes with respect to the Contractor’s compensation hereunder. The Contractor shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.

6. Inventions . Except as otherwise agreed to by the Company in writing, any and all writings, inventions, discoveries, formulations, improvements, processes, procedures, techniques, developments and innovations which Contractor makes, conceives, discovers or develops, either solely or jointly with any other person or persons, whether or not during working hours and whether or not at the request or upon the suggestion of the Company or any of its affiliates, which relate to or are useful in connection with the specific products manufactured and sold by the Company, at any time during the term of this Agreement, shall be the sole and exclusive property of the Company. Contractor shall make full disclosure to the Company of all such writings, inventions, discoveries, formulations, improvements, processes, procedures, techniques, developments and innovations and shall, at the Company’s request, do everything necessary or desirable to vest the absolute title thereto in the Company. Any and all writings, inventions, discoveries, formulations, improvements, processes, procedures, techniques, developments and innovations which Contractor has made, conceived, discovered or developed, either solely or jointly with any other person or persons, prior to the commencement of this Agreement and utilized by Contractor in rendering its duties to the Company are hereby licensed to the Company for use in its operations and for an infinite duration. This license is non-exclusive, and may be assigned without the Contractor’s prior written approval by the Company to an affiliate of the Company.

 

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7. Confidentiality . Contractor acknowledges that during the performance of its duties and obligations pursuant to this Agreement, Contractor may receive, learn or otherwise become aware of information regarding the Company including without limitation its business methods, strategies, policies, procedures, techniques, research, historical or projected financial information, budgets, trade secrets, or any other confidential information of or relating to or dealing with the business operations, activities or strategies of the Company (“Confidential Information”). Contractor shall not knowingly use, disclose or communicate any of Confidential Information other than for the purpose of fulfilling Contractor’s duties and obligations under this Agreement. Contractor shall not disclose or communicate Confidential Information, except to those individuals or entities who are directly involved in Contractor’s performance under this Agreement, each of such individuals or entities having first agreed, in writing, to be bound by the provisions of this paragraph. All memoranda, notes, lists, records, files documents and other papers and like items (and all copies, extracts and summaries thereof) made or compiled by Contractor or made available to Contractor containing Confidential Information or concerning the business of the Company shall be the Company’s property and shall be returned to the Company promptly upon termination of this Agreement or at any other time upon request by the Company. Confidential Information shall not include information (i) known to or owned by Contractor prior to the date of this Agreement, (ii) developed by Contractor independent of the Company, (iii) that was at the time of disclosure to Contractor or thereafter became public acknowledge through no fault or omission of Contractor; or, (iv) was lawfully obtained by Contractor from a third party under no obligation of confidentiality to the Company. For purposes of this paragraph, the term “Contractor” includes without limitation the Contractor and its subsidiaries and their respective officers, directors, employees, Contractors, advisors, agents, contractors and subcontractors.

8. Non-Solicitation . For a period of twelve (12) months following the termination of this Agreement, the Contractor shall not, for its own benefit or the benefit of any third party, directly or indirectly, induce or attempt to influence any current, former or prospective employee, contractor, customer, independent contractor, vendor or supplier of the Company or any of its affiliates to terminate, diminish, or not establish an employment or other relationship with the Company or any of its affiliates.

9. Right to Injunction . The parties hereto acknowledge that the services to be rendered by the Contractor under this Agreement and the rights and privileges granted to the Company under the Agreement are of a special, unique, unusual, and extraordinary character which gives them a peculiar value, the loss of which cannot be reasonably or adequately compensated by damages in any action at law, and the breach by the Contractor of any of the provisions of this Agreement will cause the Company irreparable injury and damage. The Contractor expressly agrees that the Company shall be entitled to injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Agreement by the Contractor. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that the Company may have for damages or otherwise. The various rights and remedies of the Company under this Agreement or otherwise shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law.

 

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10. Termination . The Company may terminate this Agreement at any time by sixty (60) days’ written notice to the Contractor; provided, however, that this Agreement shall terminate immediately upon written notification to the Contractor in the event of Contractor’s termination for “Cause.” In the event that the Company terminates this Agreement without Cause, Contractor shall continue to receive the payments defined in Schedule I hereto, for period ninety (90) days after the date of termination. Notwithstanding Company’s termination rights herein, Contractor may terminate this Agreement at any time by sixty (60) days’ written notice to the Company, however, Contractor shall not be entitled to receive any payments beyond the date of termination.

11. Termination by Company for Cause . Termination for any of these events shall constitute termination for “Cause”:

11.1 if the Contractor or any of its affiliates is convicted of, or enters a plea of nolo contendere (or similar plea) with respect to, any crime or offense, fails or refuses to comply with Company rules, policies, procedures or plan, approved and effective at such time, or express direction of the Company’s Board of Directors, commits any act of fraud, personal dishonesty or misappropriation relating to or involving the Company, materially breaches or neglects the any provision of this Agreement, including if Contractor or any of its affiliates performs its duties in an incompetent manner as may be determined by the Board of Directors in its sole discretion.

11.2 if a majority of the unaffiliated directors, if any, determines that the Contractor has violated this Agreement in any respect and, after notice of such violation, the Contractor has failed to cure such violation within 30 days; or

11.3 there is entered an order for relief or similar decree or order with respect to the Contractor by a court having competent jurisdiction in an involuntary case under the federal bankruptcy laws as now or hereafter constituted or under any applicable federal or provincial bankruptcy, insolvency or other similar laws; or the Contractor:

	11.3.1	ceases, or admits in writing its inability, to pay its debts as they become due and payable, or makes a general assignment for the benefit of, or enters into any composition or arrangement with, creditors;
	11.3.2	applies for, or consents, by admission of material allegations of a petition or otherwise, to the appointment of a receiver, trustee, assignee, custodian, liquidator or sequestrator, or other similar official, of the Contractor or of any substantial part of its properties or assets, or authorizes such an application or consent, or proceedings seeking such appointment are commenced without such authorization, consent or application against the Contractor and continue undismissed for 60 days;
	11.3.3	authorizes or files a voluntary petition in bankruptcy, or applies for or consents, by admission of material allegations of a petition or otherwise, to the application of any bankruptcy, reorganization, arrangement, readjustment of debt, insolvency, dissolution, liquidation or other similar law of any jurisdiction, or authorizes such application or consent, or proceedings to such end are instituted against the Contractor without such authorization, application or consent and are approved as properly instituted and remain undismissed for 60 days or result in adjudication of bankruptcy or insolvency.
	If any of the events specified above shall occur, the Contractor shall give prompt written notice thereof to the Board of Directors upon the happening of such event.

 

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11.4 Contractor or any of its affiliates knowingly engages in the unauthorized disclosure of Confidential Information.

12. Action Upon Termination . From and after the effective date of termination of this Agreement, except as otherwise specified herein, the Contractor shall not be entitled to compensation for further services, other than reimbursement of appropriately documented and approved expenses incurred by Contractor before the termination of this Agreement, to the extent that Contractor would have been entitled to such reimbursement but for the termination of this Agreement.

13. Representations and Warranties.

13.1 The Company represents and warrants to the Contractor as follows:

	13.1.1	The Company is duly organized, validly existing and in good standing under the laws of Florida, has the power to transact the business in which it is now engaged and is duly qualified and in good standing under the laws of each jurisdiction where the conduct of its business requires such qualification, except for failures to be so qualified, authorized or licensed that could not in the aggregate have a material adverse effect on the business operations, assets or financial condition of the Company and its subsidiaries, taken as a whole. The Company does not do business under any fictitious business name.
	13.1.2	The Company has the power and authority to execute, deliver and perform this Agreement and all obligations required and have taken all necessary actions to authorize this Agreement and the execution, delivery and performance of this Agreement and all obligations required. Except as shall have been obtained, no consent of any other person including, without limitation, stockholders and creditors of the Company, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required by the Company in connection with this Agreement or the execution, delivery, performance, validity or enforceability of this Agreement and all obligations required. This Agreement has been, and each instrument or document required will be, executed and delivered by a duly authorized officer of the Company, and this Agreement constitutes, and each instrument or document required when executed and delivered hereunder will constitute, the legally valid and binding obligation of the Company enforceable against the Company in accordance with its terms.
	13.1.3	The execution, delivery and performance of this Agreement and the documents or instruments required will not violate any provision of any existing law or regulation binding on the Company, or any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Company, or the governing instruments of, or any securities issued by, the Company or of any mortgage, indenture, lease, contract or other Agreement, instrument or undertaking to which the Company is a party or by which the Company or any of its assets may be bound, the violation of which would have a material adverse effect on the business operations, assets or financial condition of the Company and its subsidiaries, taken as a whole, and will not result in, or require, the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage, indenture, lease, contract or other agreement, instrument or undertakings.

 

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13.2 The Contractor represents and warrants to the Company that:

	13.2.1	The Contractor is duly organized and/or domiciled, validly existing and in good standing under the laws of Colorado, has the corporate or individual power to transact the business in which it is now engaged and is duly qualified to do business and is in good standing under the laws of each jurisdiction where the conduct of its business requires such qualification, except for failures to be so qualified, authorized or licensed that could not in the aggregate have a material adverse effect on the business operations, assets or financial condition of the Contractor, taken as a whole. The Contractor does not do business under any fictitious business name.
	13.2.2	The Contractor has the corporate or individual power and authority to execute, deliver and perform this Agreement and all obligations required and has taken all necessary corporate action to authorize this Agreement and the execution, delivery and performance of this Agreement and all obligations required. Except as shall have been obtained, no consent of any other person including, without limitation, creditors of the Contractor, and no license, permit, approval or authorization of, exemption by, notice or report to, or registration, filing or declaration with, any governmental authority is required by the Contractor in connection with this Agreement or the execution, delivery, performance, validity or enforceability of this Agreement and all obligations required. This Agreement has been and each instrument or document required will be executed and delivered by a duly authorized officer of the Contractor, and this Agreement constitutes, and each instrument or document required when executed and delivered will constitute, the legally valid and binding obligation of the Contractor enforceable against the Contractor in accordance with its terms.
	13.2.3	The execution, delivery and performance of this Agreement and the documents or instruments required, will not violate any provision of any existing law or regulation binding on the Contractor, or any order, judgment, award or decree of any court, arbitrator or governmental authority binding on the Contractor, or the governing instruments of, or any securities issued by, the Contractor or of any mortgage, indenture, lease, contract or other agreement, instrument or undertaking to which the Contractor is a party or by which the Contractor or any of its assets may be bound, the violation of which would have a material adverse effect on the business operations, assets, or financial condition of the Contractor and its subsidiaries, taken as a whole, and will not result in, or require, the creation or imposition of any lien on any of its property, assets or revenues pursuant to the provisions of any such mortgage indenture, lease, contract or other agreement, instrument or undertaking.
	13.2.4	In rendering its duties under this Agreement, the Contractor shall not utilize any invention, discovery, development, improvement, innovation, or trade secret in which it does not, or the Company does not, have a proprietary interest.

 

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14. Merger . This Agreement shall not be terminated by the merger or consolidation of the Company into or with any other entity.

15. Successors and Assigns . This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors, heirs, personal representatives, and permitted assigns.

16. Choice of Law . This Agreement will be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Florida.

17. Arbitration . Any controversies arising out of the terms of this Agreement or its interpretation shall be settled in Orange County, Florida in accordance with the rules of the American Arbitration Association, and the judgment upon award may be entered in any court having jurisdiction thereof.

18. Headings . Section headings are not to be considered a part of this Agreement and are not intended to be a full and accurate description of the contents hereof.

19. Assignment . Neither the Company nor the Contractor shall assign any of its rights under this Agreement, or delegate the performance of any of its duties hereunder, without the prior written consent of both parties.

20. Notices . Any and all notices, demands, or other communications required or desired to be given hereunder by any party shall be in writing and shall be validly given or made to another party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail, such notice shall be conclusively deemed given five days after deposit thereof in the United States mail addressed to the party to whom such notice, demand or other communication is to be given as follows:

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Any party hereto may change its address for purposes of this paragraph by written notice given in the manner provided above.

21. Amendments; Waivers . No provision of this Agreement may be waived or amended except in a written instrument signed, in the case of an amendment, by each party or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought. No action taken pursuant to this Agreement, including any investigation by or on behalf of any party will be deemed to constitute a waiver by the party taking such action, or compliance with any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.

22. Entire Understanding . This Agreement represents the entire agreement of the parties hereto with respect to the matters contemplated hereby, and there are no written or oral representations, warranties, understandings or agreements with respect hereto, except as expressly set forth herein.

23. Unenforceability of Provisions . If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired hereby and the parties will attempt to agree upon a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Agreement.

24. Counterparts. This Agreement may be executed via facsimile in one or more counterparts and transmitted via facsimile or PDF, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. When counterparts of copies have been executed by all parties, they shall have the same effect as if the signatures to each counterpart or copy were upon the same document and copies of such documents shall be deemed valid as originals.

[Signatures Follow on Next Page]

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IN WITNESS WHEREOF the undersigned have executed this Agreement as of the day and year first written above.

	COMPANY   ELITE DATA SERVICES INC. A Florida Corporation
	By:	/s/ Brenton Mix
		Brenton Mix,
		Chief Executive Officer
	CONTRACTOR
	By:	/s/ Richard Phillips
		Richard Phillips,
		Individually

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SCHEDULE I

DUTIES, TERM, AND COMPENSATION

1. DUTIES . The Company has engaged the Contractor perform services related to overseeing and managing the development and execution of the Company’s long-term strategy with a view to creating shareholder value in the capacity of Secretary and Treasurer.

The Secretary’s leadership role also entails being ultimately responsible for ensuring the integrity of the governance framework, being responsible for the efficient administration of a Company, ensuring compliance with statutory and regulatory requirements and implementing decisions made by the Board of Directors.

More specifically, the duties and responsibilities of the Secretary include the following:

	·	Manage all board and committee meeting logistics, attend and record minutes of all board and committee meetings; facilitate board communications;
	·	Advise the Board on its roles and responsibilities;
	·	Facilitate the orientation of new Directors and assist in Director training and development;
	·	Maintain key corporate documents and records;
	·	Responsible for corporate disclosure and compliance with state corporation laws, stock exchange listing standards and SEC reporting and compliance;
	·	Oversee Stockholder Relations including stock issuance and transfer operations; stockholder correspondence; prepare and distribute proxy statement;
	·	Manage process pertaining to the annual shareholder meeting;
	·	Subsidiary management and governance;
	·	Monitor corporate governance developments and assist the Board in tailoring governance practices to meet the Board's needs and investor expectations;
	·	Serve as a focal point for investor communication and engagement on corporate governance issues.

The Treasurer’s leadership role also entails being ultimately responsible for corporate liquidity, investments, and risk management related to the company's financial activities.

 

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More specifically, the duties and responsibilities of the Treasurer include the following:

	·	Forecast cash flow positions, related borrowing needs, and available funds for investment;
	·	Ensure that sufficient funds are available to meet ongoing operational and capital investment requirements;
	·	Use hedging to mitigate financial risks related to the interest rates on the Company's borrowings, as well as on its foreign exchange positions;
	·	Maintain banking relationships;
	·	Maintain credit rating agency relationships;
	·	Arrange for equity and debt financing;
	·	Invest funds;
	·	Invest pension funds;
	·	Monitor the activities of third parties handling outsourced treasury functions on behalf of the company;
	·	Advise management on the liquidity aspects of its short- and long-range planning;
	·	Oversee the extension of credit to customers;
	·	Maintain a system of policies and procedures that impose an adequate level of control over treasury activities.

The Board of Directors reserve the right to amend the Duties and Responsibilities set forth in this Schedule I, from time to time, during the Initial Term of this Agreement, as deemed necessary.

2. TERM . The term of this Agreement shall begin as of the date hereof (“Effective Date”) and shall end on the second anniversary date (the “Initial Term”) following the Effective Date unless terminated earlier as provided in this Agreement. Following expiration of the Initial term, this Agreement shall continue for three (3) successive one (1) year terms unless either party shall notify the other at least thirty (30) days prior to the end of the then term that such party is terminating this Agreement.

3. COMPENSATION .

3.1 Cash. Subject to the terms of this Agreement, as compensation for Contractor’s services, the Company shall pay Contractor a monthly fee in cash equal to One Thousand Two Hundred Fifty Dollars (USD $1,250.00) for the first six months, Two Thousand Five Hundred Dollars (USD $2,500.00) for the second six months, and Five Thousand Dollars (USD $5,000.00) for subsequent terms, unless otherwise agreed to in writing by the Board of Directors, to be paid on the 1 ^st business day of each month, starting on the date of execution of this Agreement. In the event one or more payments to the Contractor is not made within thirty (30) business days of the due date, then Contractor may elect in writing to require the Company to make such payment in the form of shares of restricted common stock of the Company, pursuant to the terms and conditions of the Company’s Stock Option Plan then in effect. Any and all payments due and payable to Contractor in the form of cash and/or stock compensation as set forth hereinabove shall be paid to Contractor and/or assigns.

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3.2 Stock Option Plan . The Company may, from time to time, enter into supplemental agreements or memorandums in writing with Contractor for the award and payment to Contractor of additional compensation, including increases in the aforesaid salary, bonuses, or stock incentives upon such terms and conditions as the Company shall deem to be in its best interest and in the event of the execution by the Company of any such agreements or memoranda, the right of Contractor to additional compensation or bonuses shall be determined in accordance with applicable provisions thereof, subject, however, to the provisions hereinafter set forth. The amount of any bonus or stock incentive may be increased or decreased and the amount of any additional compensation to be received by Contractor from the Company is within the sole and absolute discretion of the Company’s Board of Directors, pursuant the Company’s Equity Incentive Stock Plan (the “Stock Plan”), as approved as of August 27, 2015, which gives the Company the right to grant certain stock awards or options to employees, directors and/or Contractors of the Company or any of its subsidiaries.

3.3 Expenses . In addition to the compensation described in Paragraph 3.1. above, Contractor shall be entitled to reimbursement by the Company for all actual, reasonable and direct expenses incurred by him in the performance of his duties hereunder, provided such expenses (i) are business expenses that are properly tax deductible for the Company (ii) were pre-approved by an appropriate officer of the Company and (iii) were otherwise incurred in accordance with the policies and procedures established by the Company from time to time. Contractor shall provide the Company with written documentation of any expenses submitted for reimbursement as required by Company policy and reimbursement for each item of approved expense shall be made within a reasonable time.

4. OTHER ENGAGEMENT .

In addition to the duties and responsibilities of the Consultant as set forth in Section 1 in this Schedule I, the Consultant (Richard Phillips) is also currently a member of the Board of Directors of the Company, pursuant to the executed Board Member Services Agreement (“Board Services Agreement”), dated January 10, 2017.

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EXHIBIT 10.97

VOTING TRUST AGREEMENT

THIS VOTING TRUST AGREEMENT (the “Agreement” or “Trust Agreement”) is entered into by and among the undersigned parties appearing on the signature page (collectively, the “Stockholders”, and each individually, a “Stockholder”), each a holder of a certain number of shares (and/or a holder of a stock purchase warrant (the “Warrant”) for the right to purchase a certain number of shares) of Series B Preferred Stock, at $0.0001 par value (the “Series B Preferred Stock”), convertible into shares of Common Stock, at $0.0001 par value (“Common Stock”) of ELITE DATA SERVICES INC., a Florida corporation (the “Company”), collectively hereinafter referred to as (the “Shares”), and Eilers Law Group, PA, Attn: William Robinson Eilers, Esq. (collectively with any and all successors, the “Voting Trustee”) as of March 14, 2017.

WHEREAS, the Stockholders and the Voting Trustee desire to create a voting trust upon the terms and subject to the conditions in this Agreement (the “Voting Trust”);

NOW THEREFORE, in consideration of the premises and the mutual covenants contained in this Agreement, the parties agree as follows:

1) Deposit. Each Stockholder hereby agrees that he/she/it will forthwith assign to and deposit with the Voting Trustee the number of Shares, held in either certificate(s) or book entry, set forth beneath his/her/its signature hereto, together with proper assignment or assignments thereof, substantially in the form of Exhibit A attached hereto. Each Stockholder further agrees to immediately deposit with the Voting Trustee in a like manner any and all Shares acquired (or the right to be acquired pursuant to an issued Warrant) by him/her/it after the date of this Agreement.

Pursuant to the terms of that certain Definitive Agreement (the “Definitive Agreement”), dated August 26, 2016, as amended, attached hereto as Exhibit D, and Amendment No. 2 to the Definitive Agreement (the “Amendment No. 2”), dated February 24, 2017, attached hereto as Exhibit E, by and between the Company and WOD Holdings Inc., a Delaware corporation (“WODH”), the Company has agreed to issue to and deposit with the Voting Trustee a certain amount of Shares equal to a total of 199,000 shares of Series B Preferred Stock, and 19,801,000 shares of Common Stock, respectively, after the completion by the Company of a reverse split of 1:1000 of its Common Stock, as referenced in the execution of an assignment, in the form of Exhibit A attached hereto, to be held in the Voting Trust for the benefit of WODH (also referred to herein as a “Stockholder”), pursuant to certain terms of the Definitive Agreement, as amended, and Amendment No. 2, and in accordance with the terms of this Agreement.

Further, upon the execution of this Agreement, the Company hereby approves in advance, and Dr. James G. Ricketts, and Stephen Antol (each a Stockholder), jointly and severally hereby agree to each deposit with the Voting Trustee a total of 500,000 shares of Series B Preferred Stock (for a total of 1,000,000 shares), owned and held by each of them as Stockholders, as referenced in the execution of two (2) separate assignments, in the form of Exhibit A attached hereto, which shall, thereafter, upon the completion by the Company of a reverse split of 1:1000 of its Common Stock, be converted by the Company and Voting Trustee into a total of 5,000 shares of Series B Preferred Stock each (for total of 10,000 shares), and 495,000 shares of Common Stock each (for a total totaling 990,000 shares), to be held by the Voting Trustee in the Voting Trust for the benefit of each such Stockholder, in accordance with the terms of this Agreement.

  

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In addition, upon the execution of this Agreement, the Company hereby approves, and Birch First Capital Investments LLC (f/k/a Birch First Capital Fund LLC), a Delaware limited liability company, and Baker & Myers & Associates, LLC, a Nevada limited lability company (each a Stockholder), hereby mutually agree to the assignment and transfer of the ownership interest into two (2) separate stock purchase warrants (each a “Warrant” and collectively the “Warrants”) for the right to purchase a total of 4,000,000 and 3,000,000 shares of Series B Preferred Stock, respectively, owned and held by each such Stockholder, respectively (totaling 7,000,000 shares), to the Voting Trustee, as referenced in the execution of two (2) separate assignments, in the form of Exhibit A attached hereto to, which shall, thereafter, upon the completion by the Company of a reverse split of 1:1000 of its Common Stock, be simultaneously exercised and converted by the Company and Voting Trustee into a total of 40,000 shares and 30,000 of Series B Preferred Stock each (for total of 70,000 shares), and 3,960,000 shares and 2,970,000 shares of Common Stock, respectively (for a total totaling 6,930,000 shares), to be held by the Voting Trustee in the Voting Trust for the benefit of each such Stockholder, in accordance with the terms of this Agreement.

2) Becoming a Party . Any holder of Shares (and/or a holder of a Warrant for the right to purchase certain number of shares) may become a Stockholder (and, accordingly, a party to this Agreement) by executing this Agreement and depositing his/her/its certificate(s) (or book entry) for his/her/its Shares with the Voting Trustee, either properly endorsed in blank or endorsed to the Voting Trustee.

3) Voting Trust Certificates. Upon the receipt from a Stockholder of a certificate(s) (or book entry) for the Shares together with proper assignment or assignments thereof, the Voting Trustee will deliver or cause to be delivered to such Stockholder a voting trust certificate or certificates (“Voting Trust Certificates”) substantially in the form of Exhibit B attached hereto, representing the number of Shares (or Warrant for the right to purchase a certain number of Shares) received from such Stockholder.

4) Transferability of Voting Trust Certificates . Voting Trust Certificates shall be transferable only upon the same terms and conditions and subject to the same restrictions as are applicable to the underlying Shares, whether or not such terms, conditions and restrictions are set forth in the bylaws of the Company, in a separate agreement or otherwise, including, but not limited, the terms of that certain Definitive Agreement, as amended and Amendment No.2, attached hereto. Any transfer of a Voting Trust Certificate shall vest in the transferee all rights and interests of the transferor in and under such Voting Trust Certificate and under this Agreement, and upon such transfer, the Voting Trustee will deliver or cause to be delivered to the transferee a Voting Trust Certificate for the same number of Shares as are represented by the Voting Trust Certificate so transferred. Until such transfer, the Voting Trustee and the Company may treat the registered holder of a Voting Trust Certificate as the owner thereof for all purposes whatsoever. If any Voting Trust Certificate shall be claimed to be lost or destroyed, a new Voting Trust Certificate may be issued in lieu thereof upon such proof of loss and such security as may be required by the Voting Trustee.

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5) Title . Title to all Shares deposited hereunder (“Trust Shares”) shall be vested in the Voting Trustee and shall be transferred to the Voting Trustee or to its nominee or nominees on the books of the Company, and the Voting Trustee shall possess and be entitled to exercise with respect to the Trustee Shares all voting rights of holders of the Trust Shares of any and every kind and character, including the right to vote such Shares and to take part in or consent in writing or otherwise to any corporate or stockholders’ action, whether ordinary or extraordinary, including:

	(a)	any amendment of the Certificate of Incorporation or the Bylaws of the Company,
	(b)	consolidation with or merger into any other corporation,
	(c)	changes in the number of directors,
	(d)	increases in the number of, or reclassification of, shares of the Company’s stock, and
	(e)	the dissolution of the Company,

all upon such terms and conditions and under such circumstances as the Voting Trustee may from time to time determine in its sole discretion, so as long as such powers do not circumvent or void the effectiveness of any and all agreements executed by Company as of the date of this Agreement or during the time in which this Agreement is in effect (e.g. advisory and management, shareholder and/or subscription agreements, etc.). It is expressly understood and agreed none of the holders of Voting Trust Certificates shall have any right, either under such Voting Trust Certificates or under this Agreement, or under any agreement express or implied, or otherwise, to vote any of the Trust Shares or to take part in or consent to any corporate or stockholders’ action requiring such vote.

6) Restriction on Encumbrances . The Voting Trustee shall not sell, pledge, hypothecate, mortgage or place any security interest upon, exchange or dispose of all or any part of the Trust Shares.

7) Dividends; Other Distributions . The registered holder of each Voting Trust Certificate shall be entitled, until distribution of the Shares represented thereby as hereinafter provided for, to receive from time to time payments equal to the dividends and the other distributions, if any, received by the Voting Trustee in respect of such Shares.

The Voting Trustee may, in its discretion, from time to time, instead of receiving and distributing any dividend or other distribution declared on Trust Shares, authorize the Company to make payment thereof directly to the registered holders of the applicable outstanding Voting Trust Certificates.

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8) Stock Dividends . In case the Voting Trustee shall receive any share certificates of the Company issued by way of dividends upon Trust Shares, the Voting Trustee shall hold such shares likewise subject to the terms of this Agreement, and shall issue Voting Trust Certificates representing such share certificates to those entitled thereto.

9) Affiliate Status .

	(a)	No Shareholder shall be deemed a beneficial owner as defined by Rule 13d-3 of the Exchange Act, unless deemed as such prior to becoming a Party to the Trust. Pursuant to Rule 13d-3(d)(1) no Shareholder shall have any power to revoke or terminate the Trust whereupon said Shareholder would thus become a beneficial owner as defined by Rule 13d-3.
	(b)	Pursuant to Rule 16b-8 of the Exchange Act, no Shareholder who prior to becoming a Party to the Trust was not required to file any reports pursuant to Rule 16b, generally, shall be required to make any such filings as a result of becoming a Party to the Trust.

10) Term; Termination; Extension .

	(a)	The Voting Trust and this Agreement shall continue to be in full force and effect for a period ending on December 31, 2018, unless extended pursuant to Section 10(b) of this Agreement. This Agreement may be terminated at any time by the unanimous vote of all Stockholders and the Voting Trustee, or pursuant to a closing by the Company and WODH, in which the Company has acquired a controlling ownership interest of not less than sixty percent (60%) of WOD Market LLC, a Colorado limited liability company, pursuant to that certain Joint Venture Agreement, dated February 24, 2017, by and between Company and WODH, as set forth in the executed Definitive Agreement and Amendment No. 2 described hereinabove.
	(b)	Except as it would constitute a violation of the laws of the State of Florida, the term of this Agreement shall automatically be extended at any time for an additional one (1) year period, unless otherwise amended by the unanimous vote of all Stockholders, either by a writing signed by such Stockholders or at a meeting called for such purpose by any Stockholder upon the same notice as is required for a special meeting of the stockholders of the Company, to which end any Stockholder shall have access to the books of the Voting Trustee containing a record of the Stockholders.
	(c)	Upon termination of the Voting Trust, the Trustee shall promptly send a notice to each Stockholder of such termination substantially in the form of Exhibit C attached hereto, and deliver to each Stockholder the Trust Shares owned by such Stockholder upon presentation and surrender of the applicable Voting Trust Certificate, accompanied, if required by the Voting Trustee, by properly executed transfers thereof to the Voting Trustee, within 30 days of such termination.

 

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11) Rules of Procedure . If there is more than one Voting Trustee, each Voting Trustee may adopt its own rules of procedure, and, in all matters by its decision, may act by proxy to any other person. The Voting Trustee, if an individual, may not act as a director or officer of the Company, and not may own Shares or other securities of the Company, except for the Trust Shares held in Trustee name.

12) Multiple Voting Trustees; Successor Voting Trustee . The number of Voting Trustees hereunder shall initially be one person. Upon the unanimous vote of all Voting Trustees then serving, the number of Voting Trustees may be increased or decreased, if more than one.

Any Voting Trustee hereunder may at any time resign by delivering a resignation in writing to the remaining Voting Trustee(s), to any designated successor thereto, or to one or more Stockholders. Each person appointed as a Voting Trustee hereunder shall make a written designation as to his successor as Voting Trustee in the event of his resignation, incapacity or death. Such designation may be changed at any time while the designating Voting Trustee remains in office. Upon the resignation, incapacity or death of a Voting Trustee, the most recently designated successor thereto shall be notified of his/her appointment and shall assume office as successor Voting Trustee upon written acceptance of such appointment. In the event that any Voting Trustee fails to designate a successor, the successor shall be chosen by the remaining Voting Trustee(s), or, if there are no remaining Voting Trustees, by the affirmative vote of holders of more than 50% percent of the Trust Shares. If a 50% or greater vote cannot be obtained, then the Board of Directors of the Company shall make such appointment on behalf of the Stockholders.

Each successor Voting Trustee shall, from the time of acceptance of such appointment, be deemed a Voting Trustee hereunder, and shall have all the title, rights and powers of a Voting Trustee hereunder, and all acts shall be done and all instruments shall be executed which shall be necessary or reasonably requested for the purposes of effecting such succession and of constituting any and all successor Voting Trustees at the time of such appointment as the owner of record of all of the Trust Shares.

13) Voting by Voting Trustee . In voting the Trust Shares or in otherwise acting hereunder, the Voting Trustee shall exercise his/her/its best judgment in the interests of the Company and Stockholders to the end that its affairs shall be properly managed, and its interests shall be properly promoted, but the Voting Trustee shall assume no responsibility in respect thereto or of any action taken by it or taken with its consent thereto, or pursuant to any vote so cast.

The Voting Trustee may vote the Trust Shares or take part in or consent to any corporate or stockholders’ action in person, in writing or by such person or persons as it shall at any time and from time to time select as its proxy or proxies; provided, however, that this power to act in person by writing or by proxy, shall not be construed to enable the Voting Trustee or its proxy to act otherwise than as provided in this Agreement.

Notwithstanding anything to the contrary in this Agreement, it is expressly provided that the Voting Trustee hereunder must vote all Trust Shares as a block on each and every issue and at all times. All Trust Shares shall be voted on each issue as determined by a majority in number of the Voting Trustees in office, and if no such majority has been achieved, then no Trust Shares shall be voted on such issue.

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14) Exoneration . No Voting Trustee, in his/her/its capacity as a stockholder of the Company, as a Voting Trustee or otherwise, shall be liable under this Agreement for any error of judgment or mistake of law or other mistake, or for any act or omission of any agent or attorney, or for any misconstruction of this Agreement or for any act or omission save only his own individual willful misconduct.

15) Compensation and Expenses . The Voting Trustee shall be paid an annual fee of $10,000, payable upon the termination date of this Agreement, and shall be reimbursed for all documented expenses, including, but not limited to, $500.00 for each cancellation, issuance, re-issuance or termination of Trust Shares, including applicable courier fees. The compensation and expenses of the Voting Trustee shall be paid by the Stockholders on a pro rata basis according to the number of Trust Shares owned by each Stockholder.

16) Injunction . The parties agree that any violation of this Agreement will cause irreparable harm and that in addition to any other remedy, injunctive and other equitable relief may be awarded. In addition, the parties agree that interim injunctive relief, in the form of a preliminary injunction or otherwise, may be issued to prevent actions or threatened actions on the part of a party hereto which may constitute a violation hereunder. The parties hereby consent to the jurisdiction of the courts of the State of Florida for all purposes relating to this paragraph and to this Agreement, including the granting of a preliminary injunction or other preliminary equitable relief.

17) Further Assurances. The parties hereto and their respective successors and assigns shall do all such things, execute all such documents, and provide all such reasonable assurances as may be required to carry out the terms and purposes of this Agreement.

18) Cumulative Remedies . Except as otherwise specifically provided in this Agreement, the rights and remedies available to any of the parties to this Agreement shall be deemed to be in addition to, and not in lieu of, any other rights and remedies available in law or equity.

19) Transferees’ Agreement to be Bound . No transfer of a Voting Trust Certificate shall be made upon the books of the Voting Trust (even though otherwise permitted) unless and until the transferee or transferees agree(s) to become a party to, and be bound by, this Agreement. Such agreement shall be in such form as may be acceptable to counsel for the Voting Trustee.

20) Miscellaneous .

(a) Governing Law . This Agreement will be construed in accordance with and governed by the laws of the State of Florida, without giving effect to the conflict of law principles of the State of Florida.

(b) Successors and Assigns . Except as otherwise expressly provided in this Agreement, this Agreement will be binding on, and will inure to the benefit of, the successors and permitted assigns of the parties to this Agreement. Nothing in this Agreement is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights or obligations under or by reason of this Agreement, except as expressly provided in this Agreement.

 

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(c) Notices . All notices and other communications required or permitted hereunder will be in writing and will be delivered by hand or sent by overnight courier, fax or e-mail to:

If to the initial Voting Trustee:

Eilers Law Group, PA

1000 Fifth Street
Suite 200 – P2
Miami Beach, FL 33139

Fax: (305) 900-3144

Email: wreilers@eilerslawgroup.com

Attn: William Robinson Eilers, Esq.

with a copy to:

ELITE DATA SERVICES INC.

720 S. Colorado Blvd., PH North

Denver, CO 80246

Fax: (720) 240-9378

Email: admin@elitedate.io

Attention: Chief Executive Officer

If to any Stockholder, to the address of such Stockholder as set forth beneath such Stockholder’s signature to this Agreement.

Each party may furnish an address substituting for the address given above by giving notice to the other parties in the manner prescribed by this Section 20(c). All notices and other communications will be deemed to have been given upon actual receipt by (or tender to and rejection by) the intended recipient or any other person at the specified address of the intended recipient.

(d) Severability . In the event that any provision of this Agreement is held to be unenforceable under applicable law, this Agreement will continue in full force and effect without such provision and will be enforceable in accordance with its terms.

 

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(e) Disputes . Any controversy, claim or dispute arising out of or relating to this Agreement, shall be settled by binding arbitration in Orange County, Orlando, Florida. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association, with the following exceptions if in conflict: (a) one arbitrator shall be chosen by the Company; (b) each party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (c) arbitration may proceed in the absence of any party if written notice (pursuant to the Arbitrator’s rules and regulations) of the proceeding has been given to such party. The parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity, provided however, that nothing in this subsection shall be construed as precluding brining an action for injunctive relief or other equitable relief. The arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELTING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO.

(f) Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole, (b) references to one gender include all genders, (c) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (d) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (e) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time.

(g) Entire Agreement . This Agreement embodies the entire agreement and understanding among the parties hereto with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements and understanding other than this Agreement relating to the subject matter hereof.

(h) Amendment and Waiver . This Agreement may be amended only by a written agreement executed by the parties hereto. No provision of this Agreement may be waived except by a written document executed by the party entitled to the benefits of the provision. No waiver of a provision will be deemed to be or will constitute a waiver of any other provision of this Agreement. A waiver will be effective only in the specific instance and for the purpose for which it was given, and will not constitute a continuing waiver.

(i) Counterparts. This Agreement may be in any number of counterparts, each of which will be deemed an original, but all of which together will constitute one instrument.

[The remainder of this page has been intentionally left blank.]

8

IN WITNESS WHEREOF, the undersigned have executed this Voting Trust Agreement as of the date first written above.

VOTING TRUSTEE			STOCKHOLDER(S)
Eilers Law Group, PA , a Florida corporation			WOD Holdings Inc., a Delaware corporation
By:	/s/ William Robison Eilers, Esq.		By:	/s/ Taryn Watson
	William Robinson Eilers, Esq.			Taryn Watson
	President			President
			Address
			720 S. Colorado Blvd., PH North Denver, CO 80246 Fax: (720) 289-6148 Email: taryn.watson@thewodmarket.com
			Number of Shares Held:
			A total of 199,000 shares of Series B Preferred Stock, and 19,801,000 shares of Common Stock, respectively, to be issued by the Company to the Voting Trustee, after the completion by the Company of a reverse split of 1:1000 of its Common Stock, in accordance with this Trust Agreement.

Acknowledged:

ELITE DATA SERVICES INC.
By:	/s/ Brenton Mix
	Brenton Mix,
	Chief Executive Officer

Signature Page to Voting Agreement

9

IN WITNESS WHEREOF, the undersigned have executed this Voting Trust Agreement as of the date first written above.

VOTING TRUSTEE			STOCKHOLDER(S)
Eilers Law Group, PA , a Florida corporation
By:	/s/ William Robison Eilers, Esq.		By:	/s/ Dr. James G. Ricketts
	William Robinson Eilers, Esq.,			Dr. James G. Ricketts,
	President			Individually
			Address
			________________________
			________________________
			________________________
			________________________
			Number of Shares Held:
			500,000 shares of Series B Preferred Stock, to be converted by the Company and Voting Trustee into a total of 5,000 shares of Series B Preferred Stock each, and 495,000 shares of Common Stock, respectively, after the completion by the Company of a reverse split of 1:1000 of its Common Stock, in accordance with this Trust Agreement.

Acknowledged:

ELITE DATA SERVICES INC.
By:	/s/ Brenton Mix
	Brenton Mix,
	Chief Executive Officer

Signature Page to Voting Agreement

10

IN WITNESS WHEREOF, the undersigned have executed this Voting Trust Agreement as of the date first written above.

VOTING TRUSTEE			STOCKHOLDER(S)
Eilers Law Group, PA , a Florida corporation
By:	/ s/ William Robison Eilers, Esq.		By:	/s/ Stephen Antol
	William Robinson Eilers, Esq., President			Stephen Antol Individually
			Address
			__________________________________
			__________________________________
			__________________________________
			__________________________________
			Number of Shares Held:
			500,000 shares of Series B Preferred Stock, to be converted by the Company and Voting Trustee into a total of 5,000 shares of Series B Preferred Stock each, and 495,000 shares of Common Stock, respectively, after the completion by the Company of a reverse split of 1:1000 of its Common Stock, in accordance with this Trust Agreement.

Acknowledged:

ELITE DATA SERVICES INC.
By:	/s/ Brenton Mix
	Brenton Mix
	Chief Executive Officer

Signature Page to Voting Agreement

11

IN WITNESS WHEREOF, the undersigned have executed this Voting Trust Agreement as of the date first written above.

	By:	/s/ Pier S. Bjorklund
		Pier S. Bjorklund
		Managing Director
	Address
	121 S. Orange Avenue, Ste. 1500 Orlando, Florida 32801 Tel: (561) 228-4107 Email: admin@birchfirst.com Attn: Managing Director
	Number of Shares Held:
	A Warrant for the right to purchase a total of 4,000,000 shares of Series B Preferred Stock, to be simultaneously exercised and converted by the Company and Voting Trustee into a total of 40,000 shares of Series B Preferred Stock each, and 3,960,000 shares of Common Stock, respectively, after the completion by the Company of a reverse split of 1:1000 of its Common Stock, in accordance with this Trust Agreement.

Acknowledged:

ELITE DATA SERVICES INC.
By:	/s/ Brenton Mix
	Brenton Mix
	Chief Executive Officer

Signature Page to Voting Agreement

12

IN WITNESS WHEREOF, the undersigned have executed this Voting Trust Agreement as of the date first written above.

VOTING TRUSTEE			STOCKHOLDER(S)
Eilers Law Group, PA , A Florida corporation			Baker & Myers & Associates LLC, a Nevada limited liability company
By:	/s/ William Robison Eilers, Esq.		By:	/s/ Sarah Myers
	William Robinson Eilers, Esq.			Sarah Myers
	President			Manager
			Address
			__________________________
			__________________________
			__________________________
			__________________________
			Number of Shares Held:
			A Warrant for the right to purchase a total of 3,000,000 shares of Series B Preferred Stock, to be simultaneously exercised and converted by the Company and Voting Trustee into a total of 30,000 shares of Series B Preferred Stock each, and 2,970,000 shares of Common Stock, respectively, after the completion by the Company of a reverse split of 1:1000 of its Common Stock, in accordance with this Trust Agreement.

Acknowledged:

ELITE DATA SERVICES INC.
By:	/s/ Brenton Mix
	Brenton Mix,
	Chief Executive Officer

Signature Page to Voting Agreement

13

EXHIBIT A

[Form of Irrevocable Stock Transfer Power]

IRREVOCABLE STOCK TRANSFER POWER

I, Taryn Watson, President of WOD Holdings Inc, a Delaware corporation, do hereby irrevocably sell, assign and transfer unto, Eilers Law Group, PA, Attn: William Robinson Eilers, Esq., as Voting Trustee of the DEAC Voting Trust dated March 14, 2017, all or any acquired portion of a total of 199,000 shares of Series B Preferred Stock, and 19,801,000 shares of Common Stock (the “Shares”), respectively, of Elite Data Services, Inc. (the “Company”), to be issued by the Company in the name of the Voting Trustee on the books of the Company, after the completion by the Company of a reverse split of 1:1000 of its Common Stock, in accordance with this Trust Agreement, and do hereby irrevocably constitute and appoint Manhattan Transfer Registrar Co. as attorney in fact to transfer the Shares on the books of the Company with full power of substitution in the premises.

STOCKHOLDER(S)   WOD Holdings Inc., a Delaware corporation
By:	/s/ Taryn Watson
	Taryn Watson,
	President
Date: March 14, 2017

14

EXHIBIT A

[Form of Irrevocable Stock Transfer Power]

IRREVOCABLE STOCK TRANSFER POWER

I, Dr. James G. Ricketts, do hereby irrevocably sell, assign and transfer unto, Eilers Law Group, PA, Attn: William Robinson Eilers, Esq., as Voting Trustee of the DEAC Voting Trust dated March 14, 2017, a total of 500,000 shares (the “Shares”) of Series B Preferred Stock, $0.0001 par value per share, of Elite Data Services, Inc. (the “Company”) standing in the name of Dr. James G. Ricketts on the books of the Company, and do hereby irrevocably constitute and appoint Manhattan Transfer Registrar Co. as attorney in fact to transfer the Shares on the books of the Company with full power of substitution in the premises.

STOCKHOLDER(S)
By:	/s/ Dr. James G. Ricketts
	Dr. James G. Ricketts,
	Individually
Date: March 14, 2017

15

EXHIBIT A

[Form of Irrevocable Stock Transfer Power]

IRREVOCABLE STOCK TRANSFER POWER

I, Stephen Antol, do hereby irrevocably sell, assign and transfer unto, Eilers Law Group, PA, Attn: William Robinson Eilers, Esq., as Voting Trustee of the DEAC Voting Trust dated March 14, 2017, a total of 500,000 shares (the “Shares”) of Series B Preferred Stock, $0.0001 par value per share, of Elite Data Services, Inc. (the “Company”) standing in the name of Stephen Antol on the books of the Company, and do hereby irrevocably constitute and appoint Manhattan Transfer Registrar Co. as attorney in fact to transfer the Shares on the books of the Company with full power of substitution in the premises.

STOCKHOLDER(S)
By:	/s/ Stephen Antol
	Stephen Antol
	Individually
Date: March 14, 2017

16

EXHIBIT A

[Form of Irrevocable Stock Transfer Power]

IRREVOCABLE STOCK TRANSFER POWER

I, Pier S. Bjorklund, Managing Director of Birch First Capital Partners, LLC (f/k/a Birch First Capital Management LLC), a Delaware limited liability company, and the Manager of Birch First Capital Investments LLC (f/k/a Birch First Capital Fund LLC), a Delaware limited liability company, do hereby irrevocably sell, assign and transfer unto, Eilers Law Group, PA, Attn: William Robinson Eilers, Esq., as Voting Trustee of the DEAC Voting Trust dated March 14, 2017, the stock purchase warrant (the “Warrant”) for the right to purchase a total of 4,000,000 shares (the “Shares”) of Series B Preferred Stock, $0.0001 par value per share, of Elite Data Services, Inc. (the “Company”) standing in the name of Birch First Capital Fund LLC on the books of the Company, and do hereby irrevocably constitute and appoint Manhattan Transfer Registrar Co. as attorney in fact to transfer the Shares on the books of the Company with full power of substitution in the premises.

STOCKHOLDER(S)
Birch First Capital Investments LLC f/k/a Birch First Capital Fund LLC a Delaware limited liability company
By:	Birch First Capital Partners LLC
f/k/a Birch First Capital Mgmt. LLC
Its:	Manager

By:	/s/ Pier S. Bjorklund
Print Name:	Pier S. Bjorklund
Date: March 14, 2017

17

EXHIBIT A

[Form of Irrevocable Stock Transfer Power]

IRREVOCABLE STOCK TRANSFER POWER

I, Sarah Myers, Manager of Baker & Myers & Associates LLC, a Nevada limited liability company, do hereby irrevocably sell, assign and transfer unto, Eilers Law Group, PA, Attn: William Robinson Eilers, Esq., as Voting Trustee of the DEAC Voting Trust dated March 14, 2017, the stock purchase warrant (the “Warrant”) for the right to purchase a total of 3,000,000 shares (the “Shares”) of Series B Preferred Stock, $0.0001 par value per share, of Elite Data Services, Inc. (the “Company”) standing in the name of Baker & Myers & Associates LLC on the books of the Company, and do hereby irrevocably constitute and appoint Manhattan Transfer Registrar Co. as attorney in fact to transfer the Shares on the books of the Company with full power of substitution in the premises.

STOCKHOLDER(S)   Baker & Myers & Associates LLC, a Nevada limited liability company
By:	/s/ Sarah Myers
	Sarah Myers
	Manager
Date: March 14, 2017

 

18

EXHIBIT B

[Form of Voting Trust Certificate]

DEAC VOTING TRUST CERTIFICATE

March 14, 2017

No. 001

199,000 shares of Series B Preferred Stock, and

19,801,000 shares of Common Stock

THIS VOTING TRUST CERTIFICATE (this “Certificate”) is issued under and pursuant to, its transfer restricted by, and the rights of the holder hereof are subject to and limited by, the terms and conditions of the DEAC Voting Trust Agreement (the “Agreement”), dated March 14, 2017, by and among certain holders of shares of the Series B preferred stock, $0.0001 par value per share (“Preferred Stock”) and shares of the common stock, $0.0001 par value per share (“Common Stock”), of ELITE DATA SERVICES INC., a Florida corporation (the “Company”), collectively hereinafter referred to as (the “Shares”), and Eilers Law Group, PA, Attn: William Robinson Eilers, Esq., as Voting Trustee (hereinafter referred to collectively with any and all successors as the “Voting Trustee”).

Upon the termination of the Voting Trust as provided in the Agreement, and upon the presentation and surrender of this Certificate, accompanied, if required by the Voting Trustee, by a properly executed transfer thereof to the Voting Trustee, the holder hereof will be entitled to receive, pursuant to the issuance by the Company in the name of the Voting Trustee, as referenced on the books of the Company, after the completion by the Company of a reverse split of 1:1000 of its Common Stock, in accordance with the executed Trust Agreement, a certificate(s) (or book entry) for a total of 199,000 shares of Series B Preferred Stock, and 19,801,000 shares of Common Stock of the Company, respectively (the “Shares”), or such other applicable denomination thereof, pursuant to the terms of the Definitive Agreement and Amendment No. 2, as incorporated by reference in the Trust Agreement, and in the meantime to receive payments equal to the dividends and the other distributions, if any, received by the Voting Trustee with respect to the Shares. The Voting Trustee shall, with respect to the Shares, possess and be entitled to exercise all rights of the holders of Common Stock of any and every kind and character, including the right to vote such Shares and to take part in or consent in writing or otherwise to any corporate or stockholders’ action, whether ordinary or extraordinary, including, but without limiting the generality thereof, each and every matter set forth in the Agreement, all upon such terms and conditions and under such circumstances as the Voting Trustee may from time to time determine in its sole discretion, and to do and perform any other act or thing which the stockholders of the Company are now or may hereafter be entitled to do or perform, it being expressly stipulated that the holder hereof shall have no right, either under this certificate or under the Agreement, or under any agreement express or implied, or otherwise, to vote the Shares or to take part in or consent to any corporate or stockholders’ action requiring such vote.

This Certificate is transferable only as provided in the Agreement, a copy of which may be obtained free of charge from the Voting Trustee upon written request, and then only upon the books of the Voting Trustee by the registered holder hereof in person or by attorney, upon surrender hereof properly endorsed. Until so transferred, the Voting Trustee and the Company may treat the registered holder as the owner hereof for all purposes whatsoever.

This certificate is not valid until signed by the Voting Trustee.

 

19

IN WITNESS WHEREOF, the Voting Trustee has executed this Voting Trust Certificate as of the date first written above.

VOTING TRUSTEE			STOCKHOLDER(S)
Eilers Law Group, PA ,			WOD Holdings Inc.,
a Florida corporation			a Delaware corporation
By:	/s/ William Robison Eilers, Esq.		By:	/s/ Taryn Watson
	William Robinson Eilers, Esq.			Taryn Watson
	President			President
			Address
			720 S. Colorado Blvd., PH North
			Denver, CO 80246
			Fax: (720) 289-6148
			Email: taryn.watson@thewodmarket.com

 

20

EXHIBIT B

[Form of Voting Trust Certificate]

DEAC VOTING TRUST CERTIFICATE

March 14, 2017

No. 002

500,000 shares of Series B Preferred Stock

THIS VOTING TRUST CERTIFICATE (this “Certificate”) is issued under and pursuant to, its transfer restricted by, and the rights of the holder hereof are subject to and limited by, the terms and conditions of the DEAC Voting Trust Agreement (the “Agreement”), dated March 14, 2017, by and among certain holders of shares of the Series B preferred stock, $0.0001 par value per share (“Preferred Stock”) and shares of the common stock, $0.0001 par value per share (“Common Stock”), of ELITE DATA SERVICES INC., a Florida corporation (the “Company”), collectively hereinafter referred to as (the “Shares”), and Eilers Law Group, PA, Attn: William Robinson Eilers, Esq., as Voting Trustee (hereinafter referred to collectively with any and all successors as the “Voting Trustee”).

Upon the termination of the Voting Trust as provided in the Agreement, and upon the presentation and surrender of this Certificate, accompanied, if required by the Voting Trustee, by a properly executed transfer thereof to the Voting Trustee, the holder hereof will be entitled to receive, pursuant to the issuance by the Company in the name of the Voting Trustee, as referenced on the books of the Company, after the completion by the Company of a reverse split of 1:1000 of its Common Stock, in accordance with the executed Trust Agreement, a certificate(s) (or book entry) for a total of 5,000 shares of Series B Preferred Stock, and 495,000 shares of Common Stock of the Company, respectively (the “Shares”), converted from the original 500,000 shares of Series B Preferred Stock of the Company, deposited to and with the Voting Trustee, on the date of execution of the Trust Agreement, and in the meantime to receive payments equal to the dividends and the other distributions, if any, received by the Voting Trustee with respect to the Shares. The Voting Trustee shall, with respect to the Shares, possess and be entitled to exercise all rights of the holders of Common Stock of any and every kind and character, including the right to vote such Shares and to take part in or consent in writing or otherwise to any corporate or stockholders’ action, whether ordinary or extraordinary, including, but without limiting the generality thereof, each and every matter set forth in the Agreement, all upon such terms and conditions and under such circumstances as the Voting Trustee may from time to time determine in its sole discretion, and to do and perform any other act or thing which the stockholders of the Company are now or may hereafter be entitled to do or perform, it being expressly stipulated that the holder hereof shall have no right, either under this certificate or under the Agreement, or under any agreement express or implied, or otherwise, to vote the Shares or to take part in or consent to any corporate or stockholders’ action requiring such vote.

This Certificate is transferable only as provided in the Agreement, a copy of which may be obtained free of charge from the Voting Trustee upon written request, and then only upon the books of the Voting Trustee by the registered holder hereof in person or by attorney, upon surrender hereof properly endorsed. Until so transferred, the Voting Trustee and the Company may treat the registered holder as the owner hereof for all purposes whatsoever.

This certificate is not valid until signed by the Voting Trustee.

 

21

IN WITNESS WHEREOF, the Voting Trustee has executed this Voting Trust Certificate as of the date first written above.

VOTING TRUSTEE			STOCKHOLDER(S)
Eilers Law Group, PA ,
a Florida corporation
By:	/s/ William Robison Eilers, Esq.		By:	/s/ Dr. James G. Ricketts
	William Robinson Eilers, Esq.			Dr. James G. Ricketts
	President			Individually
			Address
			______________________________
			______________________________
			______________________________
			______________________________

 

22

 

EXHIBIT B

[Form of Voting Trust Certificate]

DEAC VOTING TRUST CERTIFICATE

March 14, 2017

No. 003

500,000 shares of Series B Preferred Stock

THIS VOTING TRUST CERTIFICATE (this “Certificate”) is issued under and pursuant to, its transfer restricted by, and the rights of the holder hereof are subject to and limited by, the terms and conditions of the DEAC Voting Trust Agreement (the “Agreement”), dated March 14, 2017, by and among certain holders of shares of the Series B preferred stock, $0.0001 par value per share (“Preferred Stock”) and shares of the common stock, $0.0001 par value per share (“Common Stock”), of ELITE DATA SERVICES INC., a Florida corporation (the “Company”), collectively hereinafter referred to as (the “Shares”), and Eilers Law Group, PA, Attn: William Robinson Eilers, Esq., as Voting Trustee (hereinafter referred to collectively with any and all successors as the “Voting Trustee”).

Upon the termination of the Voting Trust as provided in the Agreement, and upon the presentation and surrender of this Certificate, accompanied, if required by the Voting Trustee, by a properly executed transfer thereof to the Voting Trustee, the holder hereof will be entitled to receive, pursuant to the issuance by the Company in the name of the Voting Trustee, as referenced on the books of the Company, after the completion by the Company of a reverse split of 1:1000 of its Common Stock, in accordance with the executed Trust Agreement, a certificate(s) (or book entry) for a total of 5,000 shares of Series B Preferred Stock, and 495,000 shares of Common Stock of the Company, respectively (the “Shares”), converted from the original 500,000 shares of Series B Preferred Stock of the Company, deposited to and with the Voting Trustee, on the date of execution of the Trust Agreement, and in the meantime to receive payments equal to the dividends and the other distributions, if any, received by the Voting Trustee with respect to the Shares. The Voting Trustee shall, with respect to the Shares, possess and be entitled to exercise all rights of the holders of Common Stock of any and every kind and character, including the right to vote such Shares and to take part in or consent in writing or otherwise to any corporate or stockholders’ action, whether ordinary or extraordinary, including, but without limiting the generality thereof, each and every matter set forth in the Agreement, all upon such terms and conditions and under such circumstances as the Voting Trustee may from time to time determine in its sole discretion, and to do and perform any other act or thing which the stockholders of the Company are now or may hereafter be entitled to do or perform, it being expressly stipulated that the holder hereof shall have no right, either under this certificate or under the Agreement, or under any agreement express or implied, or otherwise, to vote the Shares or to take part in or consent to any corporate or stockholders’ action requiring such vote.

This Certificate is transferable only as provided in the Agreement, a copy of which may be obtained free of charge from the Voting Trustee upon written request, and then only upon the books of the Voting Trustee by the registered holder hereof in person or by attorney, upon surrender hereof properly endorsed. Until so transferred, the Voting Trustee and the Company may treat the registered holder as the owner hereof for all purposes whatsoever.

This certificate is not valid until signed by the Voting Trustee.

 

23

IN WITNESS WHEREOF, the Voting Trustee has executed this Voting Trust Certificate as of the date first written above.

VOTING TRUSTEE			STOCKHOLDER(S)
Eilers Law Group, PA, a Florida corporation
By:	/s/ William Robison Eilers, Esq.		By:	/s/ Stephen Antol
	William Robinson Eilers, Esq.,			Stephen Antol,
	President			Individually
			Address
			______________________________
			______________________________
			______________________________
			______________________________

24

EXHIBIT B

[Form of Voting Trust Certificate]

DEAC VOTING TRUST CERTIFICATE

March 14, 2017

No. 004

4,000,000 shares of Series B Preferred Stock

THIS VOTING TRUST CERTIFICATE (this “Certificate”) is issued under and pursuant to, its transfer restricted by, and the rights of the holder hereof are subject to and limited by, the terms and conditions of the DEAC Voting Trust Agreement (the “Agreement”), dated March 14, 2017, by and among certain holders of shares of the Series B preferred stock, $0.0001 par value per share (“Preferred Stock”) and shares of the common stock, $0.0001 par value per share (“Common Stock”), of ELITE DATA SERVICES INC., a Florida corporation (the “Company”), collectively hereinafter referred to as (the “Shares”), and Eilers Law Group, PA, Attn: William Robinson Eilers, Esq., as Voting Trustee (hereinafter referred to collectively with any and all successors as the “Voting Trustee”).

Upon the termination of the Voting Trust as provided in the Agreement, and upon the presentation and surrender of this Certificate, accompanied, if required by the Voting Trustee, by a properly executed transfer thereof to the Voting Trustee, the holder hereof will be entitled to receive, pursuant to the issuance by the Company in the name of the Voting Trustee, as referenced on the books of the Company, after the completion by the Company of a reverse split of 1:1000 of its Common Stock, in accordance with the executed Trust Agreement, a certificate(s) (or book entry) for a total of 40,000 shares of Series B Preferred Stock, and 3,960,000 shares of Common Stock of the Company, respectively (the “Shares”), exercised and converted from the original stock purchase warrant (the “Warrant”) for the right to purchase a total of 4,000,000 shares of Series B Preferred Stock of the Company, deposited to and with the Voting Trustee, on the date of execution of the Trust Agreement, and in the meantime to receive payments equal to the dividends and the other distributions, if any, received by the Voting Trustee with respect to the Shares. The Voting Trustee shall, with respect to the Shares, possess and be entitled to exercise all rights of the holders of Common Stock of any and every kind and character, including the right to vote such Shares and to take part in or consent in writing or otherwise to any corporate or stockholders’ action, whether ordinary or extraordinary, including, but without limiting the generality thereof, each and every matter set forth in the Agreement, all upon such terms and conditions and under such circumstances as the Voting Trustee may from time to time determine in its sole discretion, and to do and perform any other act or thing which the stockholders of the Company are now or may hereafter be entitled to do or perform, it being expressly stipulated that the holder hereof shall have no right, either under this certificate or under the Agreement, or under any agreement express or implied, or otherwise, to vote the Shares or to take part in or consent to any corporate or stockholders’ action requiring such vote.

This Certificate is transferable only as provided in the Agreement, a copy of which may be obtained free of charge from the Voting Trustee upon written request, and then only upon the books of the Voting Trustee by the registered holder hereof in person or by attorney, upon surrender hereof properly endorsed. Until so transferred, the Voting Trustee and the Company may treat the registered holder as the owner hereof for all purposes whatsoever.

This certificate is not valid until signed by the Voting Trustee.

 

25

IN WITNESS WHEREOF, the Voting Trustee has executed this Voting Trust Certificate as of the date first written above.

VOTING TRUSTEE			STOCKHOLDER(S)
Eilers Law Group, PA ,			Birch First Capital Investments LLC
a Florida corporation			f/k/a Birch First Capital Fund LLC,
			a Delaware limited liability company
By:	/s/ William Robison Eilers, Esq.		By:	Birch First Capital Partners LLC
			f/k/a Birch First Capital Management LLC
			Its:	Manager
			By:	/s/ Pier S. Bjorklund
				Pier S. Bjorklund,
				Managing Director
			Address
			121 S. Orange Avenue, Ste. 1500
			Orlando, Florida 32801
			Tel: (561) 228-4107
			Email: admin@birchfirst.com
			Attn: Managing Director

26

EXHIBIT B

[Form of Voting Trust Certificate]

DEAC VOTING TRUST CERTIFICATE

March 14, 2017

No. 005

3,000,000 shares of Series B Preferred Stock

THIS VOTING TRUST CERTIFICATE (this “Certificate”) is issued under and pursuant to, its transfer restricted by, and the rights of the holder hereof are subject to and limited by, the terms and conditions of the DEAC Voting Trust Agreement (the “Agreement”), dated March 14, 2017, by and among certain holders of shares of the Series B preferred stock, $0.0001 par value per share (“Preferred Stock”) and shares of the common stock, $0.0001 par value per share (“Common Stock”), of ELITE DATA SERVICES INC., a Florida corporation (the “Company”), collectively hereinafter referred to as (the “Shares”), and Eilers Law Group, PA, Attn: William Robinson Eilers, Esq., as Voting Trustee (hereinafter referred to collectively with any and all successors as the “Voting Trustee”).

Upon the termination of the Voting Trust as provided in the Agreement, and upon the presentation and surrender of this Certificate, accompanied, if required by the Voting Trustee, by a properly executed transfer thereof to the Voting Trustee, the holder hereof will be entitled to receive, pursuant to the issuance by the Company in the name of the Voting Trustee, as referenced on the books of the Company, after the completion by the Company of a reverse split of 1:1000 of its Common Stock, in accordance with the executed Trust Agreement, a certificate(s) (or book entry) for a total of 30,000 shares of Series B Preferred Stock, and 2,970,000 shares of Common Stock of the Company, respectively (the “Shares”), exercised and converted from the original stock purchase warrant (the “Warrant”) for the right to purchase a total of 3,000,000 shares of Series B Preferred Stock of the Company, deposited to and with the Voting Trustee, on the date of execution of the Trust Agreement, and in the meantime to receive payments equal to the dividends and the other distributions, if any, received by the Voting Trustee with respect to the Shares. The Voting Trustee shall, with respect to the Shares, possess and be entitled to exercise all rights of the holders of Common Stock of any and every kind and character, including the right to vote such Shares and to take part in or consent in writing or otherwise to any corporate or stockholders’ action, whether ordinary or extraordinary, including, but without limiting the generality thereof, each and every matter set forth in the Agreement, all upon such terms and conditions and under such circumstances as the Voting Trustee may from time to time determine in its sole discretion, and to do and perform any other act or thing which the stockholders of the Company are now or may hereafter be entitled to do or perform, it being expressly stipulated that the holder hereof shall have no right, either under this certificate or under the Agreement, or under any agreement express or implied, or otherwise, to vote the Shares or to take part in or consent to any corporate or stockholders’ action requiring such vote.

This Certificate is transferable only as provided in the Agreement, a copy of which may be obtained free of charge from the Voting Trustee upon written request, and then only upon the books of the Voting Trustee by the registered holder hereof in person or by attorney, upon surrender hereof properly endorsed. Until so transferred, the Voting Trustee and the Company may treat the registered holder as the owner hereof for all purposes whatsoever.

This certificate is not valid until signed by the Voting Trustee.

 

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IN WITNESS WHEREOF, the Voting Trustee has executed this Voting Trust Certificate as of the date first written above.

VOTING TRUSTEE			STOCKHOLDER(S)
Eilers Law Group, PA ,			Baker & Myers & Associates LLC,
a Florida corporation			a Nevada limited liability company
By:	/s/ William Robison Eilers, Esq.		By:	/s/ Sarah Myers
	William Robinson Eilers, Esq.			Sarah Myers
	President			Manager
			Address
			Reserved
			______________________________
			______________________________
			______________________________
			______________________________

 

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EXHIBIT C

[Form of Termination Notice]

[DATE]

ELITE DATA SERVICES INC.

__________________________

__________________________

__________________________

__________________________

Notice is hereby given pursuant to Section 10(c) of the DEAC Voting Trust Agreement, dated March 14, 2017 (the “DEAC Voting Trust Agreement”), that the Voting Trust Agreement shall be terminated effective [DATE OF TERMINATION].

In connection with the above termination, and in accordance with the terms as set forth in Section 10 of the Voting Trust Agreement, as of the date set forth above, the Voting Trust Agreement shall cease to have any effect. Upon termination, the holders of any outstanding Voting Trust Certificates shall have no further rights under the Voting Trust Agreement, other than to receive certificates for their outstanding shares of common stock, upon surrender of the corresponding Voting Trust Certificate(s) within five (5) days after the termination of the Voting Trust Agreement.

Sincerely,

[Trustee]

 

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EXHIBIT D

DEFINITIVE AGREEMENT

(Elite Data Services Inc. – WOD Holdings Inc.)

See Attached.

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EXHIBIT E

AMENDMENT NO. 2 TO THE DEFINITIVE AGREEMENT

(Elite Data Services Inc. – WOD Holdings Inc.)

See Attached.

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