Exhibit 2.2
ASSET USAGE AND REVENUE SHARE AGREEMENT
THIS AGREEMENT IS MADE THIS 15th DAY OF DECEMBER, 2000:
BETWEEN:
Gamecasters Inc.
(Hereinafter called GameCasters)
Having its head office in the City of Ottawa in the
Province of Ontario.
AND:
Cyberdome Entertainment Inc. In
Trust for a Company to be
Incorporated
(Hereinafter called CyberDome ")
Having its head office in the City of Ottawa in the
Province of Ontario.
FOR Equipment and Intellectual
Property:
Located at Xxxx 00 Xx. Xxxxxxx Xxxxxx 0000 Xx. Xxxxxxx Xxxx
Xxxxxx Xx. X0X 0X0
(Hereinafter referred to as the
"premises")
WHEREAS GameCasters is the owner of the Equipment described in the
attached schedules to this agreement ("the Equipment") whose market
value approximately $1,000,0000 (One Million Dollars) and
WHEREAS GameCasters is the owner of certain Intellectual Property
including but not limited to the proprietary technology consisting
of the "CyberTrak" hardware and software together with the
"CyberUniFace" gaming controller, an the Name "CYBERDOME" and
associated trademarks goodwill and marketing programs described in
the attached schedules to this Agreement ("the Name") including
schedule "B" whose market value is estimated by CyberDome to be
approximately $2,50,0000 (Two Million Five Hundred Thousand
Dollars) and
WHEREAS CyberDome wishes transfer to a newly formed company to be
incorporated both this agreement and a lease dated May 21, 1997
between Cyberdome Entertainment Inc. and 713949 Ontario Limited for
premises located in the Lower Level, St. Laurent Shopping Centre
known by the municipal address Unit 20, 0000 Xx. Xxxxxxx Xxxx
Xxxxxx Xx. X0X 0X0 (the "Premises") and
WHEREAS CyberDome wishes GameCasters to locate the Equipment at the
Premises under a "true" lease" (whereby all right title and
interest to the equipment will at all times remain with
GameCasters) and also allow CyberDome to use the Name and the
Intellectual Property under a "true" lease whereby all right title
and interest will at all times remain with GameCasters; and
WHEREAS GameCasters and CyberDome wish to set out the terms and
conditions under which GameCasters would agree to permit CyberDome
to use the Name, Intellectual Property and the Equipment; and
WHEREAS GameCasters and CyberDome wish to set out the terms and
conditions under which GameCasters agrees to permit CyberDome to
share such revenues derived from such usage of the Name The
Intellectual Property and the Equipment and shared as defined
herein.
WHEREAS GameCasters and CyberDome wish to set out their respective
rights and obligations as defined herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
mutual covenants and agreements herein and subject to the terms and
conditions set out herein, the parties agree as follows:
Definitions:
Equipment: shall mean any and all equipment used in the premises
including but not limited to, laser tag equipment, arcade
equipment, restaurant equipment, office equipment, computer
equipment, audio video equipment, furniture and fixtures, virtual
reality simulators, pool tables, fixed amusements such as the
climbing wall, any and all associated components to any of the
equipment, telephones, fax machines, network hardware, computer
software, lighting devices, tools and spare parts, leasehold
improvements and any other items used in the operation of the
premises.
Intellectual Property: shall mean any and all proprietary elements,
including but not limited to, computer software, network hardware,
any and all associated components to any of the to the proprietary
computer hardware and software, laser tag equipment, arcade
equipment, virtual reality simulators, marketing and membership
information, business and strategic plans, marketing programs,
customer and supplier lists, management and marketing programs and
any internal or external studies or evaluations.
Lease Agreement: shall mean the lease dated May 21, 1997 between
Cyberdome Entertainment Inc. and 713949 Ontario Limited.
Landlord: shall mean 713949 Ontario Limited also known as Devan
Properties and Morgaurd Real Estate Investment Trust.
Maintenance Budget: shall mean the money allocated to CyberDome by
GameCasters under this agreement for maintenance of the equipment
owned by GameCasters from the revenue derived from the Equipment,
the Name, the Intellectual Property and the premises
Marketing Budget: shall mean the money allocated CyberDome by
GameCasters under this agreement for marketing of the name and the
premises from the revenue derived from the Equipment, the Name, the
Intellectual Property and the premises
Name: shall mean the name CyberDome in any and all of its forms
derivations and representations or uses without limitation
including any associated visual images and associated slogans
including but not limited to "The Future of Entertainment" in any
and all media including all Internet URL's including but not
limited to "xxxxxxxxx.xx" and "xxxxxxxxxxx.xxx".
Premises: shall mean the Lower Level of the St. Laurent Shopping
Centre known by municipal address Unit 20, 0000 Xx. Xxxxxxx Xxxx
Xxxxxx Xx. X0X 0X0.
Revenue: shall mean all revenue derived from the facility including
but not limited to revenue derived from the Equipment, the Name,
the Intellectual Property and the premises.
Term of Agreement
1. The term of this Agreement is to commence on April 1, 2001 and
expiring upon the completion of the lease for the premises on
May 31, 2007 and shall renew itself for two five (5) year terms
under the same terms and conditions unless either party shall,
not less than forty-five (45) days prior to the expiry of the
term or any renewal thereof, give to the other, written notice
of termination by registered mail to their last known place of
business, provided that in no event shall this Agreement exceed
a term by renewal or otherwise of fifteen (15) years.
Agreement Not to Offend the Lease
2. The terms of this Agreement are specifically intended to comply
with each and every provision of the lease dated May 31, 19977
between Cyberdome Entertainment Inc. and 713949 Ontario Limited.
Should any terms of this agreement not be in compliance with the
lease dated May 31, 1997 between Cyberdome Entertainment Inc.
and 713949 Ontario Limited, then any and all such term(s) shall
be amended nunc pro tunc so that this agreement will fully
comply with each and every provision of the lease dated May 31,
1997 between Cyberdome Entertainment Inc. and 713949 Ontario
Limited.
Control and Allocation of Revenues
3. All revenues shall be to the account of GameCasters and at all
times CyberDome shall collect funds in trust for GameCasters as
its agent.
4. Provided CyberDome complies with the terms of this Agreement,
GameCasters will remit (Thirty Percent) 30% of gross revenues to
CyberDome by way of Revenue Share. CyberDome agrees that these
funds are adequate to comply with the requirements to pay the
lease, staffing and other overhead costs for the premises while
maintaining all current and future operating standards of
GameCasters and agrees to meet any funding shortfall from its
own resources.
5. Provided CyberDome complies with the terms of this Agreement,
GameCasters will remit up to (Ten) 10% of gross revenues to
CyberDome for a Maintenance budget. CyberDome agrees these
funds are adequate to fund a maintenance program maintaining all
current and future operating standards of GameCasters and agrees
to meet any funding shortfall from its own resources.
6. Provided CyberDome complies with all the terms and conditions of
this Agreement, GameCasters will remit (Ten) 10% of gross
revenues to CyberDome to fund a Marketing budget. CyberDome
agrees these funds are adequate to fund a Marketing Program
maintaining all current and future operating standards of
GameCasters and agrees to meet any funding shortfall from its
own resources.
7. CyberDome further guarantees that commencing on December 31,
2002 and annually thereafter, should the total net revenues
received by GameCasters, in the preceding one (1) year period,
net of the amounts paid to CyberDome for Revenue Share, the
Maintenance budget and the Marketing budget, not total a minimum
of $1,200,000 (One Million Two Hundred Thousand Dollars), then
CyberDome will pay GameCasters the difference between $1,200,000
(One Million Two Hundred Thousand Dollars) and the amounts
actually received by GameCasters during the preceding one (1)
year period.
8. Any tender of documents or money hereunder may be made upon the
solicitor acting for the party on whom tender is required and it
shall be sufficient that a negotiable, certified cheque be
tendered in lieu of cash or currency.
9. GameCasters also retains the right to remit any or all of
CyberDome's share of the revenues directly to creditors at its
absolute discretion. However any arrears of any rent or
operating costs that are legitimately disputed by CyberDome are
at the absolute discretion of GameCasters to be either included
in the direction to the creditors or held by GameCasters in
trust pending resolution of the dispute.
10. Should CyberDome as part of a charitable of fund-raising event
operate any or all of the Equipment, any monies generated by the
operation of the equipment for such an event shall be included
in the calculation of gross revenue.
11. All pricing including but not limited to game play is subject
to the approval of GameCasters.
12. CyberDome shall immediately provide any and all financial
reports required by GameCasters.
No Representations or Warranties From GameCasters
13. It is agreed that there is no representation, warranty,
collateral agreement or condition affecting this agreement
except as expressed in it.
14. It is further agreed that GameCasters makes no representation
or warranty of any kind, express or implied, including, without
limitation, as to title of the Equipment, the state, condition
or location of the Equipment or as to CyberDome's right to
acquire or use the Equipment. CyberDome accepts the Equipment on
an "as is" and "where is" basis without representation or
warranty from GameCasters.
GameCasters' Responsibilities
15. GameCasters shall provide Equipment to be used on the
Premises, which shall not be removed from the premises, without
the express written consent of GameCasters.
16. GameCasters shall allow CyberDome to use the Name and other
Intellectual Property, provided that at all times CyberDome
remains in strict compliance with any and all requirements of
such use which shall be determined from time to time by
GameCasters at its absolute discretion. CyberDome agrees that
immediately upon the request of GameCasters it will cease using
the name and or xxxx.
17. GameCasters will remit on a monthly basis the amounts agreed
upon herein for Revenue Share, The Marketing budget and The
Maintenance budget.
CyberDome's Responsibilities
18. CyberDome shall provide a prominent area within the Premises
for the Equipment and shall provide all necessary design, decor
and signage to operate the equipment for the public, CyberDome
shall consult with GameCasters to and determine the location
area, decor and signage for the Equipment. After installation,
CyberDome shall not move or cause or suffer the Equipment to be
moved from the Premises unless with prior written approval from
GameCasters.
19. CyberDome shall provide at its expense, all electricity as
required to operate the Equipment during CyberDome's hours of
operation as defined in the Lease Agreement. CyberDome shall
provide and pay for any and all staffing required to permit the
safe and efficient operation of the Equipment.
20. CyberDome will undertake to maintain the Equipment in "like
new" condition and in full working order. The cost of any and
all maintenance required to maintain the Equipment in "like new"
condition shall be borne by CyberDome and any component of the
Equipment determined to be rendered defective as a result of
normal wear and tear shall also be replaced by CyberDome at no
cost to GameCasters.
21. CyberDome shall report any Equipment malfunction or breakdown
to GameCasters immediately upon discovery and will effect
repairs by a qualified service technician within twenty-four
hours of such an Equipment failure.
22. CyberDome shall at all times permit GameCasters and its agents
and assigns without limitation, to attend upon the premises at
any all times without advance or any notice to inspect the
equipment. If upon inspection GameCasters at its absolute
discretion deems the equipment to be in need of repair then
CyberDome will affect repairs by a qualified service technician
within twenty-four hours of such a deemed Equipment failure. If
in the sole opinion of GameCasters, CyberDome will be unable to
complete the repairs in the allotted time or lacks the expertise
to complete them at all, then GameCasters shall be entitled to
immediately repair the equipment either directly or through the
use of its agents and offset the cost of the repairs against
CyberDome's share of the maintenance budget and if necessary the
revenue share and if necessary the marketing budget.
23. CyberDome shall insure the Equipment against fire, theft,
flood, malicious or accidental damage, at replacement value, as
deemed by GameCasters and will provide GameCasters with a
certificate of insurance evidencing said replacement cost
coverage showing GameCasters to be the insured. CyberDome
agrees to adjust the amount of the certificate annually, or more
frequently if required to ensure adequate replacement value
coverage is in place.
24. CyberDome shall not disconnect the supply of electricity to
the Equipment unless approved in writing by GameCasters even if
the Equipment is inoperative due to malfunction or poor
maintenance or GameCasters overdue in payments.
25. CyberDome shall obtain liability insurance for the Equipment
in the minimum amount of $5,000,000 (Five Million Dollars).
26. CyberDome shall agree to use any and all accounting systems
and or hardware or software required by GameCasters including
but not limited to, card readers, game and facility management
software cash management and or replacement systems and any
other cash or facility management tools deemed necessary.
CyberDome shall at all times permit GameCasters and its agents
and assigns without limitation, to attend upon the premises at
any all times without advance or any notice to inspect any or
all systems to confirm that CyberDome is complying with this
requirement.
GameCasters To Have Exclusive Right To Provide Equipment
27. During the term of this Agreement, GameCasters shall have the
exclusive right but not the obligation to be CyberDome's sole
supplier of any all equipment used in the facility. In the event
GameCasters elects not to provide a piece of equipment requested
by CyberDome then CyberDome shall, only upon the written consent
of GameCasters, be entitled to seek the equipment from another
supplier provided that GameCasters shall have the right but not
the obligation to match the terms proposed by that supplier.
GameCasters acceptance of any equipment from another in is not
a waiver of its rights under this clause, which shall remain in
full force and effect.
28. GameCasters shall have the first right but not the
obligation to provide and install all revenue generating
Equipment and Interactive Entertainment Equipment in any and
all future locations owned, franchised or operated by
CyberDome.
GameCasters To Have Exclusive Ownership of Equipment Including
Upgrades and Assesions
29. CyberDome shall not interfere or attempt to interfere with
GameCasters ' ownership of this Equipment which Equipment shall
at all times remain the property of GameCasters.
30. CyberDome shall not directly or indirectly pledge or otherwise
encumber the equipment in any way, which Equipment shall at all
times remain the exclusive property of GameCasters.
31. CyberDome agrees any enhancements upgrades additions or
improvements of any kind including but not limited to the
replacement or upgrade of any or all of the equipment's hardware
or software shall form part of the equipment which shall at all
times remain the exclusive property of GameCasters.
32. CyberDome irrevocably assigns any and all current and future
right, title or interest it would otherwise have due to any such
improvement enhancements upgrades additions or improvements of
any kind including but not limited to the replacement or upgrade
of any or all of the equipment's hardware or software to
GameCasters
GameCasters To Have Exclusive Ownership of Name, URL's Customer
Lists and Goodwill
33. CyberDome shall not interfere or attempt to interfere with
GameCasters ' ownership or control of the Name which Name
shall at all times remain the property of GameCasters. The
name includes but is not limited to, "CyberDome", "The Future
of Entertainment", "CyberTrak", "xxxxxxxxx.xx",
"xxxxxxxxxxx.xxx" and any and all other commercial
representations.
34. CyberDome agrees Customer lists, Membership Programs, Training
Programs or Customer Goodwill including any enhancements
upgrades additions or improvements of any kind including but not
limited to Internet sites, membership lists, curriculum
development marketing and continuity programs, shall form part
of the name which shall at all times remain the exclusive
property of GameCasters.
35. GameCasters shall permit CyberDome to use the name in
conjunction with the premises subject to cancellation without
notice at the sole discretion of GameCasters provided CyberDome
agrees to immediately cease using the name and any and all
programs derived from it upon such cancellation and irrevocably
waives any right to damages however caused resulting from such
a cancellation.
36. CyberDome agrees that it is using the name for the premises
only and will fully completely and immediately take any and all
steps necessary to preserve and protect the name from any abuse,
misuse, or use by any unauthorised party and to comply with any
and all terms and conditions GameCasters may require in
consideration for the use of the name. These conditions include
but are not limited to developing and funding reasonable
advertising and marketing programs to promote the name, provided
all such programs are subject to the prior written approval of
GameCasters.
GameCasters To Have Exclusive Control of Equipment Including
Exchange and Removal
37. At its discretion, GameCasters may exchange any or all of
the Equipment from the Premises without formal notice,
providing replacement equipment, which in the opinion of
GameCasters is similar in nature.
38. GameCasters may at its discretion remove any Equipment from
the premises with five (5) days written notice, and such
removal shall not constitute a breach of the terms and
conditions of this Agreement.
39. GameCasters retains the right to withhold access to, or
physically remove, the Equipment in the event that CyberDome
defaults under the terms and conditions of the lease dated May
21, 1997 between Cyberdome Entertainment Inc. and 713949
Ontario Limited. GameCasters shall have the right but not
the obligation, should CyberDome not remedy any default with
their landlord, to negotiate a new lease with the Landlord
without compensation to CyberDome.
GameCasters To Have Exclusive Control of Name Including
Substitution and Cancellation
40. At its discretion, GameCasters may substitute any or all of
the programs which derive from the name without notice, and
CyberDome irrevocably waives any right to damages however
caused resulting from such substitution, which shall not
constitute a breach of this Agreement.
41. GameCasters may cancel any or all of the programs or
activities which derive from the name with five (5) days
written notice, in consideration for GameCasters entering into
this agreement CyberDome irrevocably waives any right to
damages however caused resulting from such cancellation, and
such cancellation shall not constitute a breach of the terms
and conditions of this Agreement.
Resolution of Disputes
42. Should GameCasters believe that there is a violation of the
terms of this Agreement then GameCasters shall provide written
notice of the alleged violation to CyberDome, stating the terms
and conditions that would correct the violation and will provide
the other party 15 days to correct the violation. Should
CyberDome not agree with the terms and conditions to correct the
violation then GameCasters shall be free to terminate the
agreement without further notice or penalty.
43. Should CyberDome believe that there is a violation of the
terms of this Agreement then CyberDome shall provide written
notice of the alleged violation to GameCasters, stating the
terms and conditions that would correct the violation and will
provide GameCasters 15 days to correct the violation. Should
GameCasters agree with the terms and conditions to correct the
violation then CyberDome and GameCasters would agree to an
arbitrated solution.
No Assumption of Liabilities by GameCasters
44. The parties agree that GameCasters does not agree to assume
any liability whatsoever of CyberDome including but not limited
to the claims of creditors, secured or unsecured, employees,
claims for taxes, levies or charges of any type whatsoever,
actual, statutory or deemed with respect to the Assets.
Notice
44.3.1 Any notice required or permitted to be given hereunder
shall be in writing and shall be effectively given if (i)
delivered personally, (ii) sent by prepaid courier service or
mail, or (iii) sent prepaid by telecopier, telex or similar
means of electronic communication (confirmed on the same or
following day by prepaid mail) addressed, in the case of
notice to CyberDome, as follows:
Cyberdome Entertainment Inc.
Xxxx 00, 0000 Xx. Xxxxxxx Xxxx
Xxxxxx Xx. X0X 0X0
Attention: Xxx XxXxx
And in the case of GameCasters as follows:
GameCasters Inc.
000 Xxxxxxxx Xxxx,
Xxxx Xxxxxxxxx X.X.X0X 0X0
Attention: Xxxx Xxxxxxxxxxx
45. Any notice so given shall be deemed conclusively to have been
given and received when so personally delivered or sent by
telex, telecopier or other electronic communication or on the
second day following the sending thereof by private courier or
mail. Any party hereto or others mentioned above may change any
particulars of its address for notice by notice to the others in
the manner aforesaid.
Assignment of Agreement
46. GameCasters shall be free to assign this agreement in whole or
in part without notice to CyberDome.
47. CyberDome shall not assign this agreement without the written
consent of GameCasters who may unreasonably withhold such
consent.
Entire Agreement
48. This Agreement constitutes the entire agreement between the
Parties and except as herein stated and for the instruments and
documents to be executed and delivered pursuant hereto, and
contains all of the representations and warranties of the
GameCasters. There are no oral representations or warranties
from GameCasters of any kind. This Agreement may not be amended
or modified in any respect without the written approval of
GameCasters.
General
49. The division of this Agreement into Articles, sections and
subsections and the insertion of headings are for convenience of
reference only and shall not affect the construction or
interpretation hereof.
50. Words importing the singular number include the plural and
vice-versa; words importing the masculine gender include the
feminine and neuter genders.
51. All dollar amounts referred to in this Agreement are in lawful
money of The United States of America
52. CyberDome hereby agrees that all provisions of this Agreement,
shall forever survive the execution and delivery of this
Agreement and any and all documents delivered in connection
herewith.
53. This Agreement shall be interpreted in accordance with the
laws of the Province of Ontario and the laws of Canada
applicable therein and shall be treated in all respects as an
Ontario contract.
54. This Agreement shall enure to the benefit of and be binding on
the respective heirs, executors, administrators and assigns of
each of the parties.
55. The recitals to this Agreement are true and accurate and form
part of this Agreement.
56. The schedules to this Agreement, and any lists thereto,
form part of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the
parties, attested by the hands of duly authorized officers:
THIS AGREEMENT is hereby accepted this 15th day of December
2000.
CyberDome Entertainment Inc.
Per:
___________________________
Name: Xxx XxXxx President
I have authority to bind the
corporation
GameCasters Inc.
Per:
___________________________
Name: Xxxx Xxxxxxxxxxx
President
I have authority to bind the
corporation
