EXHIBIT 99.1
MYRIAD ENTERTAINMENT & RESORTS, INC. "XXXX"
SECURITIES PURCHASE AGREEMENT
AGREEMENT dated as of ___________, 2005, among MYRIAD
ENTERTAINMENT & RESORTS, INC., a Delaware corporation ("Company"), and
those individuals and/or entities set forth on the signature pages
hereto (being hereinafter referred to, individually, as a or any
"Subscriber" and, collectively, as the "Subscribers").
R E C I T A L S
The Company is in the development stage to implement its business plan
to capitalize on opportunities to enhance the sustained value of destinations
and properties in high-potential growth markets through the creation of unique,
world-class travel and leisure experiences. The Company owns, through its
wholly-owned subsidiary, MER Resorts, Inc., a Delaware corporation, a
thirty-three percent (33%) interest in Myriad World Resorts of Tunica, LLC, a
Mississippi limited liability company ("Tunica LLC"). The Tunica LLC project is
estimated to cost $1.5 billion to complete and construction is scheduled to
commence in 2006. Construction may proceed in a single phase or in multiple
phases in which case the first phase will likely be the construction of the
casino and the hotel. The Company desires to raise funds by the sale of up to
______ million (___________) shares of the Company's Common Stock, $.001 par
value per share (individually, a or any `Share" and, collectively, the "Shares")
to the Subscribers to further the Company's business operations.
The Subscribers desire to purchase the Shares from the Company and the
Company desires to sell the Shares to the Subscribers, in each case, upon the
terms and subject to the conditions set forth in this Agreement, its exhibits,
schedules and other agreements between the parties of even date herewith,
including without limitation, the Subscription for Shares document attached as
Exhibit A hereto (collectively, the "Agreement").
Accordingly, the parties hereto hereby agree as follows:
A G R E E M E N T S
I. SALE AND ISSUANCE OF SHARES
In reliance upon the representations, warranties and agreements set
forth in this Agreement and for the consideration and subject to the terms and
conditions set forth in this Agreement, the Subscribers agree to purchase at the
Closing (as hereinafter defined), and the Company agrees to sell and issue to
the Subscribers at the Closing, that number of Shares set forth opposite each
Subscriber's name on the signature pages attached to this Agreement, at a
purchase price of ____________ cents (USD$_________) per Share.
II. CLOSING
The closing (the "Closing") of the transactions contemplated by this
Agreement shall take place at the offices of Company, Suite 1000, 00000-000
Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0, on ____________ 2005 at
10:00 a.m., local time, or at such other time which the Company and the
Subscribers shall agree. The date and time of the closing are referred to as the
"Closing Date."
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III. ACTIONS AT CLOSING
At the Closing, the Company will deliver to each Subscriber a stock
certificate, registered in such Subscriber's name, representing the Shares to be
purchased by such Subscriber, against payment of the purchase price therefor, by
check payable to the Company, or by wire transfer pursuant to the Company's
instructions. The Company and the Subscribers agree to execute and deliver on
the Closing Date and thereafter all such other instruments, including without
limitation, the Subscription for Shares document in the form of Exhibit A
hereto, and to take or cause to be taken all such further action as may be
necessary fully to vest in and confirm to the Subscribers legal and equitable
title to and possession of the Shares.
IV. REPRESENTATIONS AND WARRANTIES OF COMPANY
The Company represents and warrants to the Subscribers that the
statements set forth in this Article are correct and complete as of the date of
this Agreement and will be correct and complete as of the Closing Date (as
though made then as though the Closing Date were substituted for the date of
this Agreement throughout this Article) as follows:
(a) Organization of Company. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) Power and Authority. The Company has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder, and
has taken, or prior to the Closing Date will have taken, all action required by
law, or otherwise, to authorize the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby. This Agreement and the
exhibits hereto have been duly executed and delivered by the Company and
constitute legal, valid and enforceable obligations of the Company, subject to
(i) applicable bankruptcy, moratorium, insolvency, reorganization and other
similar laws of general application relating to or affecting creditors' rights
and remedies generally, including without limitation, the effect of statutory or
other law regarding fraudulent conveyances and preferential transfers; (ii)
limitations imposed by equitable doctrines upon the specific enforceability of
any of the provisions of this Agreement; and (iii) the availability of
injunctive relief or other equitable remedies. The Company need not give any
notice to, make any filing with, or obtain any authorization, consent or
approval of any government or governmental agency in order to consummate the
transactions contemplated by this Agreement.
(c) Capitalization. Immediately prior to the Closing, the Company's
authorized capital stock shall consist of (i) three hundred million
(300,000,000) shares of Common Stock, $.001 par value per share, of which
thirty-eight million seven hundred sixty-two thousand one hundred thirty-three
(38,762,133) shares are issued and outstanding, and (ii) five million
(5,000,000) shares of Preferred Stock, $.001 par value per share, none of which
is outstanding. All of the issued and outstanding shares of Common Stock have
been duly authorized and validly issued, are fully paid and nonassessable and
have been issued in compliance with all applicable state and federal securities
laws. The Company has reserved five million (5,000,000) shares of Common Stock
for issuance to employees, consultants and non-employee directors pursuant to
the Company's 2000 Stock Incentive Plan or other written agreement. Except for
any restrictions imposed by applicable state and federal securities laws, there
is no right of first refusal, co-sale right, right of participation, right of
first offer, or other restriction on transfer applicable to any shares of the
Company's Common Stock. The Company is not a party to, or is subject to, any
agreement that affects or relates to the voting or giving of written consent
with respect to any shares of the Company's Common Stock.
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(d) No Conflicts. Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated hereby, will (i) violate
any statute, regulation, rule, judgment, order, decree, stipulation, injunction,
charge or other restriction of any government, governmental agency, or court to
which the Company is subject, or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any contract, lease, sublease, license, sublicense, permit, indenture,
agreement, instrument of indebtedness, security interest, or other arrangement
for which the Company is a party or by which it is bound or to which any of its
or the Company's assets is subject.
(e) SEC Documents; Financial Statements. Since March 31, 2005, the
Company has filed all reports, schedules, forms, statements and other documents
required to be filed by it with the SEC pursuant to the reporting requirements
of the Securities Exchange Act of 1934 Act, as amended ("1934 Act" or "Exchange
Act") (all of the foregoing filed prior to the date hereof and all exhibits
included therein and financial statements and schedules thereto and documents
incorporated by reference therein being hereinafter referred to as the "SEC
Documents"). The Company has delivered to the Purchaser or its representatives
true and complete copies of any SEC Documents that were filed by the Company
with the SEC but not filed electronically via XXXXX. As of their respective
dates, the SEC Documents complied in all material respects with the requirements
of the 1934 Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at the time they
were filed with the SEC, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. As of their respective dates, the financial
statements of the Company included in the SEC Documents complied as to form in
all material respects with applicable accounting requirements and the published
rules and regulations of the SEC with respect thereto. Such financial statements
have been prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be
otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended
(subject, in the case of unaudited statements, to normal year-end audit
adjustments). No other written information provided by or on behalf of the
Company to the Purchaser which is not included in the SEC Documents, contains
any untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstance under which they are or were made, not misleading.
(f) Absence of Litigation. Except for any matters otherwise disclosed
in the SEC Documents, there are no (i) actions, proceedings, arbitrations or
investigations pending or any threat thereof, or verdicts or judgments entered
against the Company before any court or before any administrative agency or
office which might result in any material adverse change in the business,
properties or condition, financial or otherwise, of the Company, or (ii)
violations by the Company of any foreign, federal, state or local laws,
regulations or orders, including but not limited to laws pertaining to workplace
safety, the violation of which would have a material adverse effect on the
business of the Company.
(g) No Adverse Changes; Ordinary Course of Business. Except as set
forth in Schedule IV(g) hereof, since September, 2005: (i) the businesses of the
Company have been conducted in the ordinary course and in substantially the same
manner as heretofore; (ii) there has not been a material adverse change in the
condition (financial or otherwise) of the assets, liabilities, earnings or
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business of the Company, nor has the Company suffered any damage, destruction or
loss (whether or not covered by insurance) which has materially and adversely
affected its assets, business or prospects; (iii) the Company has not created or
incurred any liability, commitment or obligation (absolute or contingent) except
unsecured current liabilities in the ordinary course of its business for other
than money borrowed and liabilities under contracts entered into in the ordinary
course of business; (iv) the Company has not purchased or otherwise acquired,
sold, leased or otherwise disposed of (or committed so to do) any property other
than items of inventory and supply in the ordinary course of business; (v) the
Company has not increased the salary or wage rate or other remuneration of any
employee; and (vi) the Company has not declared or paid any distributions, or
directly or indirectly purchased, retired, redeemed or otherwise acquired any
capital stock in the Company.
(h) Extent of Offering. Except as contemplated in this Agreement,
neither the Company nor any agent acting on its behalf, has offered or will
offer or solicit any offers to sell any securities to any person or persons so
as to require the issuance or sale of the Shares to be registered pursuant to
the provisions of Section 5 of the Securities Act of 1933, as amended (the
"Securities Act"), or prevent the Company from utilizing the provisions of
Regulation S of the Securities Act or any applicable state securities law
exemption from qualification.
(i) Brokers and Finders. The Company has made no agreements or
arrangements for brokerage commissions, finder's fees or similar compensation in
connection with the transactions contemplated by this Agreement based on any
arrangement or agreement binding upon the Company.
(j) Validity of Issuance. The Shares to be purchased and sold pursuant
to this Agreement, will, when issued, sold, and delivered, be duly and validly
issued, fully paid and nonassessable, and will be free and clear of any liens or
encumbrances caused or created by the Company and, assuming the accuracy and
completeness of the Subscribers' representations hereunder, will have been
issued in compliance with all applicable state and federal securities laws.
(k) No Material Misstatement or Omission. The representations,
warranties and statements contained in this Agreement with respect to the
Company and the other written information provided to the Subscribers by the
Company in connection with this Agreement and the transactions contemplated
hereby contain no untrue statement of material fact and do not omit to state a
material fact necessary in order to make the statements contained herein or
therein not misleading.
V. REPRESENTATIONS AND WARRANTIES OF SUBSCRIBERS
Each Subscriber represents and warrants to the Company that the
statements set forth in this Article are correct and complete as of the date of
this Agreement and will be correct and complete as of the Closing Date (as
though made then as though the Closing Date were substituted for the date of
this Agreement throughout this Article) as follows:
(a) Organization of Subscribers. The Subscriber is a natural person or
a corporation, partnership, limited liability company, or trust duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
formation.
(b) Power and Authority. The Subscriber has full power and authority to
execute and deliver this Agreement and to perform its obligations hereunder, and
has taken, or prior to the Closing Date will have taken, all action required by
law, or otherwise, to authorize the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby. This Agreement and the
exhibits hereto have been duly executed and delivered by the Subscribers and
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constitute legal, valid and enforceable obligations of the Subscribers. The
Subscriber need not give any notice to, make any filing with, or obtain any
authorization, consent or approval of any government or governmental agency in
order to consummate the transactions contemplated by this Agreement.
(c) Investment. Subscriber is acquiring the Shares for Subscriber's own
account, for investment only, and not with a view to, or for sale in connection
with any distribution thereof within the meaning of the applicable provisions of
the Securities Act, or any applicable local law or regulation. Subscriber has no
agreement or other arrangement, formal or informal, with any person to sell,
transfer or pledge any part of the Shares, or which would guarantee Subscriber
any profit or insure against any loss with respect to the Shares, and Subscriber
has no plans to enter into any such agreement or arrangement. Subscriber
understands that the Shares have not been registered by the Company under the
Securities Act or qualified with any other regulatory authority, and are being
sold to Subscriber in reliance upon the exemption from registration set forth in
Regulation S thereunder and applicable local law or regulation, and that such
reliance is based in part upon Subscriber's representations set forth in this
Agreement. At no time was Subscriber presented with or solicited by any form of
general solicitation or general advertising, including, but not limited to, any
advertisement, article, notice or other communication published in a newspaper,
magazine or similar media, or broadcast over television or radio, or any seminar
or meeting whose attendees have been invited by any general solicitation or
general advertising.
(d) The undersigned is not a "U.S. Person" (as that term is defined by
Regulation S under the Securities Act, or estate or trust of which any executor
or administrator or trustee, respectively, is a U.S. Person and any partnership
or corporation organized or incorporated under the laws of the United States)
and is not acquiring the Shares for the account or benefit of a U.S. Person or a
person in the United States.
(e) The Shares have not been offered to the Subscriber in the United
States, and the individuals making the order to purchase the Shares, and upon
executing and delivering this Subscription Agreement on behalf of the Subscriber
were not in the United States when the order was placed and this Subscription
Agreement was executed and delivered.
(f) The Subscriber is an "accredited investor" (as defined in Rule 501
of Regulation D promulgated under the Securities Act) and represents that the
Subscriber meets one or more of the applicable standards set forth in the
Subscription Agreement attached as Exhibit A hereto.
(g) The Subscriber represents, acknowledges and agrees that the Company
has advised Subscriber that the Company will issue stop transfer instructions to
its registrar or transfer agent prohibiting the transfer of the Shares offered
hereby for a period of one (1) year from the Closing Date. Subscriber further
agrees that the Shares offered hereby shall not be, voluntarily or
involuntarily, sold, transferred or otherwise disposed of for a minimum of one
(1) year from the Closing Date, and that any disposition of the Shares in
violation of this Agreement shall be null and void. Subscriber further agrees to
indemnify and hold the Company harmless from any and all damages that result or
arise from the disposition of any Shares by Subscriber in violation of this
Agreement.
(h) In consideration of Subscriber's purchase of the Shares, Subscriber
hereby acknowledges and agrees that Subscriber's representations and warranties
will be relied on by the Company, and further acknowledges, consents,
understands, and agrees to the following:
(i) The business of the Company is substantially dependent
upon the active participation of Xxxxx Hawrelechko. In the event of the death of
Mr. Hawrelechko, or if for any other reason his services may become unavailable
to the Company, it will be necessary for the Company to employ other qualified
executive personnel to manage its operations, and there is no assurance that any
such qualified person suitable would be available for this purpose.
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(ii) The Company is recently formed and has no operating
history. The Tunica LLC project is estimated to cost $1.22 billion to complete
and construction is scheduled to commence in 2006. Without obtaining significant
additional capital through equity and debt financings the Company will not be
able to implement its business plan.
(iii) The Company will face strong competition from other
persons or entities, many of whom have substantially greater financial and human
resources, that seek to manage and possibly develop projects similar to those
contemplated by the Company.
(iv) All accepted subscription funds received by the Company
pursuant to this offering will be deposited into a general account of the
Company and will be immediately available for the Company's use.
(v) The Shares are highly speculative investments. A
Subscriber investing in the Shares risks a complete loss of Subscriber's entire
investment in the Company, and understands and is fully cognizant of the risk
factors related to the purchase of the Shares.
(vi) There are substantial restrictions on the transferability
of the Shares and a Subscriber may not be able to liquidate Subscriber's
investment.
(vii) No foreign, federal or state agency has made any
findings as to the fairness of the terms of this offering.
(viii) There have been no express or implicit representations,
guarantees or warranties to Subscriber by the Company or any other person that a
percentage of profit and/or amount or type of gain or other consideration will
be realized as a result of this investment.
(i) Subscriber has received, carefully read and is familiar with the
terms and provisions of this Agreement, the Subscription Agreement attached
hereto, and the SEC Documents. Subscriber has decided to subscribe for the
Shares based solely on Subscriber's independent investigation and evaluation of
the Company and Subscriber has not relied on any oral statements or written
material other than as set forth in this Agreement, the Subscription Agreement
and the SEC Documents.
(j) Subscriber and Subscriber's attorneys and/or advisors have been
provided an opportunity to obtain information concerning the Company and have
been given an opportunity to ask questions of and receive answers from,
authorized representatives of the Company concerning the Company, the offering
and sale of the securities and any other relevant matters, and, in all instances
have been afforded the opportunity to obtain such additional information as
necessary to verify the accuracy of the information that was otherwise provided.
(k) Subscriber is knowledgeable and experienced with respect to
investment matters such as the proposed investment. Subscriber has such
knowledge and experience in financial and business matters that Subscriber is
capable of evaluating the risks and merits of the prospective investment.
(l) Subscriber is aware that the investment offered hereby is highly
speculative and Subscriber could lose Subscriber's entire investment and
Subscriber's financial condition is such that Subscriber is able to bear the
economic risks of this investment, including the risk of loss of Subscriber's
entire investment should the Company become worthless.
(m) Subscriber either (1) has a preexisting personal or business
relationship with the Company or one of more of its control persons, or (2) by
reason of Subscriber's business or financial experience, or by reason of the
business or financial experience of Subscriber's purchaser representative(s)
(who is unaffiliated with and who is not compensated, directly or indirectly, by
the Company or any Affiliate or selling agent of the Company), Subscriber is
capable of evaluating the risks and merits of this investment and of protecting
Subscriber's interests in connection with this investment.
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(n) This Agreement, and the Subscription Agreement, when executed and
delivered to the Company, and all of the statements, answers and information set
forth herein and therein are true, complete and correct on the date hereof and
will be true, complete and correct on the date of acceptance of this
Subscription Agreement. The representations, warranties, acknowledgements and
agreements made by the undersigned herein and therein shall survive acceptance
of the Subscription Agreement and may be relied upon by the Company and any
investigating party unless and until the undersigned delivers to them a written
execution and delivery instrument stating that such information is no longer
accurate and complete.
(o) In connection with this Agreement and the Subscription Agreement,
the Company is collecting certain "personal information", as that term is
defined in applicable federal and/or state privacy laws, rules and regulations
in effect from time to time, regarding the Subscriber. The Company agrees it
shall only use and disclose such personal information for purposes consistent
for that which it was initially collected without first obtaining consent from
the Subscriber. In addition to the foregoing, the Subscriber agrees and
acknowledges that the Company may use and disclose the Subscriber's personal
information and that of its representative/agent as follows:
(i) for internal use with respect to managing the
relationships between and contractual obligations of the Company and the
Subscriber;
(ii) for use and disclosure for income tax related purposes,
including without limitation, where required by law, disclosure to the Internal
Revenue Service and the applicable state tax agencies;
(iii) disclosure to securities commissions and other
regulatory bodies with jurisdiction with respect to reports of trade and similar
regulatory filings;
(iv) disclosure to a governmental or other authority to which
the disclosure is required by court order or subpoena compelling such disclosure
and where there is no reasonable alternative to such disclosure;
(v) disclosure to professional advisers of the Company in
connection with the performance of their professional services;
(vi) disclosure to any person where such disclosure is
necessary for legitimate business reasons and is made with the prior written
consent of the Subscriber;
(vii) disclosure to a court determining the rights of the
parties under this Subscription Agreement; or
(viii) use and disclosure as otherwise required or permitted
by law.
(p) No Material Misstatement or Omission. The representations,
warranties and statements contained in this Agreement with respect to the
Subscriber and the other written information provided to the Company by the
Subscriber in connection with this Agreement and the transactions contemplated
hereby contain no untrue statement of material fact and do not omit to state a
material fact necessary in order to make the statements contained herein or
therein not misleading.
VI. INDEMNIFICATION
The undersigned Subscriber acknowledges that Subscriber understands the
meaning and legal consequences of the representations and warranties set forth
in this Agreement, and hereby agrees to indemnify, defend and hold harmless the
Company and the Company's other investors, and the officers, directors,
shareholders, members, partners, agents, counsel, servants, employees,
Affiliates, parents and subsidiaries of each of them, from and against any and
all losses, costs, claims, expenses and damages (including reasonable attorneys'
fees and court costs), or liability due, which any one of them may incur by
reason of the failure of the undersigned to fulfill any of the terms or
conditions of this Agreement, or by reason of or attributable to any breach of
the representations and warranties made by the undersigned herein, or in any
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document provided by the undersigned to the Company or the fact that any of such
representations and warranties or acknowledgments and understandings set forth
herein or therein are untrue or without adequate factual basis to be considered
true and not misleading.
VII. GENERAL PROVISIONS
SECTION 7.01. ENTIRE AGREEMENT; AMENDMENTS. This Agreement (including
the exhibits, schedules and other documents referred to herein) contains the
entire agreement among the parties hereto with respect to the subject matter
hereof. This Agreement may be changed only by an instrument in writing signed by
the party against whom enforcement of any waiver, change, modification or
discharge is sought.
SECTION 7.02. NOTICES. All notices, requests, demands and other
communications shall be in writing and deemed to have been duly given when
delivered personally, by facsimile transmission upon receipt of a "clear" or
"ok" transmission notice, or three days following deposit in the United States
mail, first class, postage prepaid, certified mail, return receipt requested,
duly addressed as follows:
If to Company: Myriad Entertainment & Resorts, Inc.
Xxxxx 0000, 00000-000 Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxx
XXXXXX X0X 0X0
Attention: President
Fax: (000) 000-0000
If to Subscribers: To the names and addresses set forth
on the signature pages hereto.
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Any party may, pursuant to written notice in compliance with this Section, alter
or change the address or the identity of the person to whom any notice is to be
sent.
SECTION 7.03. FURTHER ASSURANCES. Each party hereto shall do such
further acts, including executing any and all documents which may be necessary
or expedient, in order to further the purposes of this Agreement.
SECTION 7.04. GOVERNING LAW; VENUE. This Agreement shall be governed
by, and interpreted in accordance with, the laws of the State of Delaware. In
the event of any dispute or controversy arising under this Agreement or the
transactions contemplated herein, the parties mutually consent to the
jurisdiction of the state and federal courts in Wilmington, Delaware, and agree
that any litigation may be served outside Delaware with the same force and
effect as if service had been made in Delaware.
SECTION 7.05. SEVERABILITY. In case any one or more of the provisions
or any portion of any provision contained in this Agreement should be found to
be invalid, illegal or unenforceable in any respect, such provision or portion
thereof shall be modified or deleted in such manner so as to afford the parties
the fullest protection commensurate with making this Agreement, as modified,
legal and enforceable under applicable laws, and the validity, legality and
enforceability of any such provision shall not in any way be affected or
impaired thereby, such remaining provisions or portion of any such provision
construed as severable and independent thereof.
SECTION 7.06. ARTICLE AND SECTION HEADINGS. The headings of Articles
and Sections of this Agreement are for convenient reference only, and shall not
in any manner govern, limit, modify or construe this Agreement or any part or
provisions hereof or otherwise be given any legal effect.
SECTION 7.07. PRONOUNS; GENDER; NUMBER. When the context so requires in
this Agreement, the masculine gender includes the feminine and/or the neuter,
and the singular number includes the plural.
SECTION 7.08. NO WAIVER. No term or condition of this Agreement shall
be deemed to have been waived, nor shall any party hereto be estopped from
enforcing any provision of this Agreement, except by written instrument of the
party charged with such waiver or estoppel. Any written waiver shall not be
deemed a continuing waiver unless specifically stated, shall operate only as to
the specific term or condition waived and shall not constitute a waiver of such
term or condition for the future or as to any act other than that specifically
waived.
SECTION 7.09. SUCCESSION AND ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties named herein and their
respective successors and permitted assigns. No party may assign either this
Agreement or any of its rights, interests, or obligations hereunder without the
prior written approval of the other party.
SECTION 7.10. ARBITRATION; ATTORNEYS' FEES. Any dispute or conflict
which arises between the parties hereto shall be submitted to the American
Arbitration Association before a single arbitrator in accordance with its then
current Commercial Rules in Wilmington, Delaware, for arbitration and the
parties shall be bound by the results of such arbitration in accordance with
applicable law. If either party brings an action for judicial review or
enforcement of the arbitration proceedings, award or decision, the prevailing
party in any such action, trial or appeal shall be entitled to its reasonable
attorneys' fees to be paid by the nonprevailing party as fixed by the court.
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SECTION 7.11. NO THIRD-PARTY BENEFICIARIES. This Agreement shall not
confer any rights or remedies upon any person other than the Parties and their
respective successors and permitted assigns.
SECTION 7.12. EXPENSES. Each of the parties will bear its own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
SECTION 7.13. CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction shall be applied against any party. Each
party has been represented by lawyers throughout this transaction who have
carefully negotiated the provisions of this Agreement. As a consequence, the
parties do not believe the presumption relating to the interpretation of
contracts against the drafter of any particular clause should be applied in this
case and therefore waive its effects. Any reference to any federal, state,
local, or foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
parties intend that each representation, warranty, and covenant contained herein
shall have independent significance. If any party has breached any
representation, warranty, or covenant contained herein in any respect, the fact
that there exists another representation, warranty, or covenant relating to the
same subject matter (regardless of the relative levels of specificity) which the
party has not breached shall not detract from or mitigate the fact that the
party is in breach of the first representation, warranty, or covenant.
SECTION 7.14. INCORPORATION OF EXHIBITS AND SCHEDULES. The exhibits and
schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
SECTION 7.15. SPECIFIC PERFORMANCE. Each party acknowledges and agrees
that the other party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each party agrees that the other
party shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having jurisdiction over the parties and the
matter, in addition to any other remedy to which they may be entitled, at law or
in equity.
SECTION 7.16. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
but all of which together will constitute one and the same instrument. Each
party hereto, and its respective successors and assigns, shall be authorized to
rely upon the signatures of all of the parties hereto which are delivered by
facsimile as constituting a duly authorized, irrevocable, actual, current
delivery of this Agreement with original ink signatures of each person and
entity.
SECTION 7.17. FINDER'S AND BROKER'S FEES. Each of the Company and each
Subscriber hereto represents and warrants that it has retained no finder or
broker in connection with the transactions contemplated by this Agreement, and
hereby agrees to indemnify and to hold the other harmless from any liability for
any finder's or broker's fee to any broker or other person or firm (and the
costs and expenses of defending against such liability or asserted liability)
for which such indemnifying person, or any of its employees or representatives,
are responsible.
{SIGNATURES ON FOLLOWING PAGES]
10
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, by their duly authorized representatives, all as of the date first
above written.
COMPANY: MYRIAD ENTERTAINMENT & RESORTS, INC.
By: __________________________________________
Xxxxx Hawrelechko, Chief Executive Officer
SUBSCRIBERS:
Number of Units: ____________________
__________________________________________
[Name of Subscriber]
By: ______________________________________
[Signature]
__________________________________________
[Name and Title]
__________________________________________
[Mailing Street Address]
__________________________________________
[City, State and Zip Code]
__________________________________________
[Taxpayer Identification Number or
Social Security Number]
11
