EXHIBIT 10.1
DATED AS OF THE 2ND DAY OF JANUARY, 1999
PLAYSTAR WYOMING HOLDING CORP.
- AND -
CYBERSTATION LIMITED
- AND -
XXXXXX XXXXX AND XXXXXX XX XXXXXXXXX
MASTER AGREEMENT
TABLE OF CONTENTS
PAGE
MASTER AGREEMENT
THIS AGREEMENT made as of the 2nd day of January, 1999
AMONG:
PLAYSTAR WYOMING HOLDING CORP., a corporation organized and
existing under the laws of Antigua
("PlayStar")
- and -
CYBERSTATION LIMITED, a corporation organized and existing
under the laws of St. Kitts
(the "Company")
- and -
XXXXXX XXXXX and XXXXXX XX XXXXXXXXX, both of the Province of
Ontario and being kep person employees of the Company
("Xxxxx" and "Conceicao", respectively)
WHEREAS the Company is engaged in the business of developing
proprietary software, systems and services used to provide electronic commerce
solutions that enable businesses to sell products and services on the Internet;
AND WHEREAS the Company is the sole and exclusive owner of all
rights, titles and interest (including all patents, copyrights, trademarks,
service marks, trade names and trade secret rights) and to all software,
documentation, computer programs and the like comprising the intellectual
property and technology developed and used in the Business;
AND WHEREAS the Company has agreed to grant to PlayStar Sub an
exclusive perpetual royalty-free license to use the proprietary software and
intellectual property owned by the Company upon the terms set out in the
PlayStar License Agreement attached hereto as Exhibit A;
NOW THEREFORE, in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereto covenant and agree as
follows:
. Where used herein or in any amendment or supplement hereof, unless the context
otherwise requires, the words and phrases with initial capitals set forth below
will have the meanings so set forth therein.
"AFFILIATE" of any Person means any Person directly or
indirectly controlling, controlled by, or under direct or
indirect common control with, such Person;
"AGREEMENT" means this Agreement, including the Exhibits and
Schedules to this Agreement as amended or supplemented from
time to time; and the expressions "ARTICLE", "SECTION", or
"SUBSECTION", "SCHEDULE" and "EXHIBIT" followed by a number or
letter means and refers to the specified Article, section,
subsection, Schedule or Exhibit of this Agreement;
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"APPLICABLE LAW" means, with respect to any Person, property,
transaction, event or other matter, any law relating or
applicable to such Person, property, transaction, event or
other matter. Applicable law also includes, where appropriate,
any interpretation of the law (or any part) by any Person
having jurisdiction over it, or charged with its
administration or interpretation;
"ASSETS" means all properties, assets, interests and rights of
the Company including the following:
(a) the Software and the Intellectual Property;
(b) the Contracts;
(c) the License and Permits; and
(d) the Books and Records;
"BOOKS AND RECORDS" means all books, records, files and papers
Related to the Business or related to the Company including,
without limitation, drawings, engineering information,
computer programs (including source code), software programs,
manuals and data, sales and advertising materials, sales and
purchases correspondence, trade association files, research
and development records and other records, and all copies and
recordings of the foregoing;
"BUSINESS" means the business carried on by the Company at the
Closing Date which primarily involves the business of
developing proprietary software, systems and services used to
provide electronic commerce solutions that enable businesses
to sell products and services on the Internet;
"BUSINESS DAY" means any day except Saturday, Sunday or any
day on which banks are generally not open for business in the
City of Toronto;
"CANADIAN DOLLARS" means the lawful currency of Canada;
"CASINO MODULE" means the software programs and systems
(including source codes) developed by the Company for use in
marketing and administration of casino gaming on the Internet;
"CLAIM" has the meaning ascribed thereto in Section 5.1;
"CLOSING" means completion of the transactions provided for in
this Agreement;
"CLOSING DATE" means February 16, 1999 or such earlier or
later date as may be agreed upon in writing by the Parties;
"CLOSING TIME" means the time of closing on the Closing Date
provided for in Section 9.1; "COMPANY" means Cyberstation
Limited;
"COMPANY INTELLECTUAL PROPERTY" means all Intellectual
Property owned by the Company, excluding the Company Software;
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"COMPANY SOFTWARE" means all Software, the title to which is
owned by the Company including the Software identified in
Schedule 4.1(8)(a);
"CONFIDENTIAL INFORMATION" has the meaning ascribed thereto in
Section 6.3(4);
"CONSENTS AND APPROVALS" means all consents and approvals
required to be obtained in connection with the execution and
delivery of this Agreement and the completion of the
transactions contemplated by this Agreement other than any
consents and approvals required to be obtained by PlayStar in
connection with the issuance and listing of the Consideration
Shares;
"CONSIDERATION SHARES" has the meaning ascribed thereto in
Section 3.1;
"CYBERSTATION" means Cyberstation Computers & Support Inc., an
Ontario Corporation;
"CYBERSTATION LICENSE AGREEMENT" means the license agreement
to be entered into between the Company, as licensor, and
Cyberstation, as licensee, which shall be substantially in the
form of Exhibit D;
"DESIGNATED TERRITORY" means the countries and geographic
territories identified in Schedule 1.1;
"DIRECT CLAIM" has the meaning ascribed thereto in Section
5.3;
"DREAMPLAY" means DreamPlay Research Corporation, an Ontario
corporation;
"DREAMPLAY OPTION AGREEMENT" means the option agreement to be
entered into between the Company, as optionor, and PlayStar
Sub, as optionee, which will be substantially in the form of
Exhibit B hereto pursuant to which the Company will grant to
PlayStar Sub an option to acquire all of the issued and
outstanding shares of DreamPlay at a total price of $100 at
any time on or before December 31, 2009;
"GAAP" means those accounting principles which are recognized
as being generally accepted in Canada from time to time,
consistently applied;
"HARMFUL CODE" means any code or programming instructions that
are constructed with the ability to damage, interfere with, or
otherwise adversely affect computer programs, data files or
hardware without consent or intent of the computer user. This
definition includes, but is not limited to, self-replicating
and self-propagating programming instructions called viruses
or worms;
"INDEMNIFIED PARTY" means, in relation to an Indemnifying
Party, the Party to this Agreement that may be indemnified by
such Indemnifying Party under Article 5;
"INDEMNIFYING PARTY" means, in relation to an Indemnified
Party, the Party to this Agreement that has agreed to
indemnify that Indemnified Party under Article 5;
"INTELLECTUAL PROPERTY" means all rights of the Company to and
interests in:
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(a) all business and trade names, designs, logos and
service marks Related to the Business, including
"Cash Engine", "Mail Engine" "Post Engine", "MP3
Engine" and "Bank Engine";
(b) all inventions, patents, patent rights and patent
applications (including all reissues, divisions,
continuations, continuations-in-part and extensions
of any patent or patent application), industrial
designs and applications for registration of
industrial designs Related to the Business;
(c) all copyrights and trade-marks (whether used with
wares or services and including the goodwill
attaching to such trade-marks), registrations and
applications for trade-marks and copyrights (and all
future income from such trade-marks and copyrights)
Related to the Business;
(d) all processes, data, trade secrets, designs,
know-how, technologies in development, website
domains, domain names and related software, user
interfaces, source code, object code, algorithms,
architecture, structure, display screens, layouts,
development tools, instructions, templates,
evaluation software and hardware, formulae and
information, manufacturing, engineering and other
drawings and manuals, technology, processes, designs,
lab journals, note books, data, blueprints, research
and development reports, agency agreements, technical
information, technical assistance, engineering data,
design and engineering specifications, and similar
material recording or evidencing expertise or
information Related to the Business;
(e) all other intellectual and industrial property rights
throughout the world Related to the Business;
(f) all licences to the Company of the intellectual
property listed in items (a) to (e) above;
(g) all future income and proceeds from any of the
intellectual property listed in items (a) to (e)
above and the licences listed in item (f) above; and
(h) all rights to damages and profits by reason of the
infringement of any of the intellectual property
listed in items (a) to (e) above;
"INTERIM PERIOD" means the period from the date of this
Agreement to the Closing;
"LAW" means any law, rule, statute, regulation, order,
judgment, decree, treaty or other requirement having the force
of law;
"LICENSED SOFTWARE" means all Software other than the Company
Software;
"LICENSES AND PERMITS" means all licenses, permits, filings,
authorizations, approvals or indicia of authority necessary
for the conduct of the Business;
"LIEN" means any lien, mortgage, charge, hypothec, pledge,
security interest, prior assignment, option, warrant, lease,
sublease, right to possession, encumbrance, claim, right or
restriction which affects, by way of a conflicting ownership
interest or otherwise, the right, title or interest in or to
any particular property;
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"MANAGEMENT SERVICES AGREEMENT" means the management services
agreement to be entered into between PlayStar, as employer,
and Cyberstation Limited, a St. Kitts company, as service
provider, which shall be substantially in the form of Exhibit
C;
"NASDAQ" means National Association of Securities Dealers
Automated Quotation System;
"NET ENGINE" means Net Engine St. Kitts Limited, a St. Kitts
corporation of which Xxxxx and Xxxxxxxxx own at least 50% of
the issued shares;
"NOTICES" means the notices required to be given to any Person
under Applicable Law or pursuant to any contract or other
obligation to which the Company is a Party or by which the
Company is bound or which is applicable to any of the Assets,
in connection with the execution and delivery of this
Agreement or the completion of the transactions contemplated
by this Agreement;
"ORDINARY SHARES OF PLAYSTAR" means ordinary shares, par value
US$0.0001, in the capital of PlayStar;
"PARTY" means a party to this Agreement and any reference to a
party includes its successors and permitted assigns; and
"PARTIES" means every Party;
"PERSON" is to be broadly interpreted and to include an
individual, a corporation, a partnership, a trustee or any
unincorporated organization and words importing persons have a
similar meaning;
"PLAYSTAR LICENSE AGREEMENT" means the license agreement to be
entered into between the Company, as licensor, and PlayStar
Sub, as licensee, which shall be substantially in the form of
Exhibit A hereto;
"RELATED TO THE BUSINESS" means, directly or indirectly, used
in, arising from, or relating in any manner to the Business;
"REPRESENTATIVES" has the meaning ascribed thereto in Section
6.2(4)(b);
"SECURITIES ACT", "SEC", and "REGULATION S" have the
respective meanings assigned thereto in Section 3.5;
"SOFTWARE" means all the Company's rights and interests in all
computer software, including without limitation, the computer
software shown in Schedule 4.1(8)(a) whether in source code,
object code, machine readable or human readable forms, and
includes all updates, upgrades, improvements and modifications
thereto and all associated documentation and technical
information;
"TAX" or "TAXES"means all taxes, charges, fees, levies,
imposts and other assessments, including all income, sales,
use, goods and services, value added, capital, capital gains,
net worth, transfer, profits, withholding, payroll, employer
health, excise, real property and personal property taxes, and
any other taxes, custom duties, fees, assessments or similar
charges in the nature of a tax, including Canada Pension Plan
and provincial pension plan contributions, unemployment
insurance and employment
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insurance payments and workers compensation premiums, together
with any interest, fines and penalties, imposed by any
governmental agency (federal, provincial or municipal),
and whether or not disputed;
"THIRD PARTY CLAIM" has the meaning ascribed thereto in
Section 5.3; and
"YEAR 2000 COMPLIANT" has the meaning ascribed thereto in
Section 4.1(14).
. The division of this Agreement into Articles and Sections, the insertion of
headings and the provision of any table of contents are for convenience of
reference only and shall not affect the construction or interpretation of this
Agreement.
. Unless the context requires otherwise, words importing the singular include
the plural and vice versa and words importing gender include all genders.
. If any payment is required to be made or other action is required to be taken
pursuant to this Agreement on a day which is not a Business Day, then such
payment or action shall be made or taken on the next Business Day.
. Except as otherwise expressly provided in this Agreement:
(a) unless otherwise specified, all dollar amounts
referred to in this Agreement are stated in Canadian
Dollars; and
(b) any payment contemplated by this Agreement shall be
made by cash, certified cheque or any other method
that provides immediately available funds.
. Any reference in this Agreement to any statute or any section thereof shall,
unless otherwise expressly stated, be deemed to be a reference to such statute
or section as amended, restated or re-enacted from time to time.
. The following schedules form part of this Agreement:
Schedule 1.1 - Designated Territories
Schedule 4.1(8)(a) - List of Company Software
. The following exhibits form part of this Agreement:
Exhibit A - Form of PlayStar License Agreement
Exhibit B - Form of DreamPlay Option Agreement
Exhibit C - Form of Management Services Agreement
Exhibit D - Form of Cyberstation License Agreement
. At the Closing, the Company will grant to PlayStar Sub an option to acquire
the Casino Module for a purchase price of $100.00, such option to become
effective at such time as the Management Services Agreement is terminated.
. At the Closing, the Company shall enter into the DreamPlay Option Agreement
pursuant to which the Company shall grant to PlayStar Sub an irrevocable option
to purchase all of the issued and outstanding shares in the capital of DreamPlay
for a total purchase price of $100, at any time on or before December 31, 2009.
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. At the Closing, the Company shall transfer, or cause to be transferred to
PlayStar, 50% of the issued and outstanding shares of Net Engine.
. Subject to the terms and conditions of this Agreement, at the Closing, the
Company and PlayStar Sub shall enter into the PlayStar License Agreement which
shall be substantially in the form of Exhibit A hereto with PlayStar Sub.
Pursuant to the PlayStar License Agreement, the Company will grant to PlayStar
Sub an exclusive perpetual royalty-free license to use, in the Designated
Territory, all Company Intellectual Property and Company Software now owned or
hereafter acquired or developed by the Company in consideration for the issue to
the Company at Closing of 5,000,000 Ordinary Shares of PlayStar (the
"Consideration Shares"). For the purposes of this Agreement, each Consideration
Share shall be valued at US$0.31, being the closing market price of the Ordinary
Shares of PlayStar on NASDAQ on December 31, 1998. Concurrent with the execution
of the PlayStar License Agreement, the Company shall enter into an exclusive
perpetual royalty-free license agreement substantially in the form of Exhibit D
hereto which shall provide Cyberstation, or a wholly-owned subsidiary of
Cyberstation, with a similar license in respect of all territory not covered by
the Designated Territory.
(1)The Company acknowledges that the Consideration Shares have not been
registered with the Securities Exchange Commission (the "SEC") under the UNITED
STATES SECURITIES ACT OF 1933, as amended (the "Securities Act"), or the
securities laws of any state or foreign country. The Consideration Shares are
being issued pursuant to an exemption from registration under Regulation S
("Regulation S") promulgated under the Securities Act. The securities may not be
offered, sold or otherwise transferred in the United States or to US Persons (as
such term is defined in Regulation S) unless the securities are registered under
the Securities Act and applicable state and foreign laws, or such offers sales
and transfers are made pursuant to available exemption from the requirements of
these laws. In view of the foregoing restrictions, the Company, Xxxxx and
Xxxxxxxxx fully understand and agree that they must bear the economic risk of
such Person's acquisition for an indefinite period of time unless the securities
are subsequently registered under the Securities Act and under the applicable
securities laws of such states or unless an exemption from such registration is
available in the opinion of counsel for the holder, which counsel and opinion
are reasonably satisfactory to counsel to PlayStar. The Company is acquiring the
Consideration Shares for the Company's own account, for investment and not with
a view to resale or distribution except in compliance with the Securities Act.
(2) Neither the Company nor any Affiliate of the Company is a United
States Person (as defined in Regulation S);
(3) The Company is aware that an exemption from the registration
requirements of the Securities Act pursuant to Rule 144 promulgated thereunder
is not presently available; that PlayStar has no obligation to make available an
exemption from the registration requirements pursuant to such Rule 144 or any
successor rule for resale of the Consideration Shares; and that even if an
exemption under Rule 144 were available, Rule 144 permits only routine sales of
securities in limited amounts in accordance with the terms and conditions of
such Rule 144.
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(4) In accordance with the foregoing, the Company agrees to the placement
of a legend on any certificate or other document evidencing the Consideration
Shares, stating that they have not been registered under the Securities Act (and
a stop transfer order may be placed with respect thereto).
. Each of the Company, Xxxxx and Conceicao represents and warrants as follows
and acknowledges that PlayStar and PlayStar are relying on such representations
and warranties as a material inducement to entering into this Agreement and
completing the transactions contemplated by this Agreement:
(1) INCORPORATION AND POWER. The Company is a corporation incorporated,
validly subsisting and in good standing under the laws of St. Kitts and has full
power and authority to own its Assets and to carry on the Business as presently
conducted by it. The Company is duly qualified to do business and is in good
standing in all other jurisdictions where the conduct of its business so
requires. No act or proceeding has been taken by or against the Company in
connection with the dissolution, liquidation, winding up, bankruptcy or
reorganization of the Company.
(2) DUE AUTHORIZATION. The Company has the corporate power, authority and
capacity to enter into this Agreement and all other agreements and instruments
to be executed by it as contemplated by this Agreement and to carry out its
obligations under this Agreement and such other agreements and instruments. The
execution and delivery of this Agreement and such other agreements and
instruments and the completion of the transactions contemplated by this
Agreement and such other agreements and instruments have been duly authorized by
all necessary corporate action on the part of the Company, its directors and its
shareholders.
(3) ENFORCEABILITY OF OBLIGATIONS. This Agreement constitutes a valid and
binding obligation of the Company enforceable against it in accordance with its
terms subject, however, to limitations on enforcement imposed by bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of the rights
of creditors or others and to the extent that equitable remedies such as
specific performance and injunctions are only available in the discretion of the
court from which they are sought. The Company is not an insolvent Person within
the meaning of the BANKRUPTCY AND INSOLVENCY ACT (Canada) and will not become an
insolvent Person as a result of the Closing.
(4) ABSENCE OF CONFLICTING AGREEMENTS. The execution, delivery and
performance of this Agreement by the Company and the completion (with any
required Consents and Approvals and Notices) of the transactions contemplated by
this Agreement do not and will not result in or constitute any of the following:
(a) a default, breach or violation or an event that, with
notice or lapse of time or both, would be a default,
breach or violation of any of the terms, conditions
or provisions of the articles or by-laws of the
Company or of any Contract or any of the Licenses and
Permits;
(b) an event which, pursuant to the terms of any Contract
or any of the Licenses and Permits, causes any right
or interest of the Company to come to an end or be
amended in any way that is detrimental to the
Business or entitles any other Person to terminate or
amend any such right or interest;
(c) the creation or imposition of any Lien on any Asset;
or
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(d) the violation of any Applicable Law applicable to or
affecting the Company which is Related to the
Business.
(5) CORPORATE RECORDS. The minute books of each of the Company contain
true, correct and complete copies of its articles, its by-laws, the minutes of
every meeting of its board of directors and every committee thereof and of its
shareholders and every written resolution of its directors and shareholders.
(6) BANKRUPTCY. The Company is not an insolvent person within the meaning
of the BANKRUPTCY AND INSOLVENCY ACT (Canada) nor has made an assignment in
favour of its creditors nor a proposal in bankruptcy to its creditors or any
class thereof nor had any petition for a receiving order presented in respect of
it. The Company has not initiated proceedings with respect to a compromise or
arrangement with its creditors or for its winding up, liquidation or
dissolution. No receiver has been appointed in respect of the Company or any of
the Assets and no execution or distress has been levied upon any of the Assets.
(7) TITLE TO ASSETS. The Company have good and marketable title to all the
Assets, free and clear of any and all Liens. The Assets are sufficient to permit
the continued operation of the Business in substantially the same manner as
conducted in the year ended on the date of this Agreement. There is no
agreement, option or other right or privilege outstanding in favour of any
Person for the purchase from the Company of the Business or of any of the Assets
out of the ordinary course of business.
(8) SOFTWARE
(a) Schedule 4.1(8)(a) lists all Company Software. The
Company is the exclusive owner of all right, title
and interest in and to the Company Software, and the
Company has the right to use, execute, reproduce,
display, advertise, modify, prepare or have prepared
derivative works based upon, and has the right to
distribute, exploit, sell, transfer, license, or
lease, including the right to transfer and assign to
PlayStar free and clear of any Liens, all versions
and releases of the Company Software. The Company is
in possession of (i) the source code and object code
for all Company Software; and (ii) all other
documentation and know-how required for the effective
use of the Company Software.
(b) No person other than the Company has any right or
interest of any kind or nature in or with respect to
the Company Software or any portion thereof including
any right to sell, license, lease, transfer,
distribute use or otherwise exploit the Company
Software or any portion thereof. There has been no
disclosure of the Company Software other than through
the licensing of object code versions of the Company
Software.
(c) The Company is in possession of all documentation,
technical specifications and know-how required to
permit the Company to understand, operate, maintain
and support the Company Software and use the Company
Software as currently used in the Business or as
offered or represented to the Company's customers or
potential customers.
(d) To the knowledge of the Company, the Company Software
is free from material programming errors and defects
of workmanship and materials when maintained and
operated in accordance with the Company's
documentation and user guides.
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(e) All Software sold by the Company has contained
appropriate proprietary legends and copyright notices
displayed in or on such Software. In no instance has
the eligibility of the Company Software for
protection under applicable copyright law been
forfeited to the public domain by omission of any
required notice or any other action.
(f) No saleable version of the Software contains any
disabling mechanism or protection feature designed to
prevent its use. The Software contains no Harmful
Code.
(9) INTELLECTUAL PROPERTY
(a) The Company is the sole registered and beneficial
owner of the Company Intellectual Property and has
the right to use and assign the use of the Company
Intellectual Property and to transfer the Company
Intellectual Property to PlayStar.
(b) The Company is the only owner of the Company
Intellectual Property and is entitled to the
exclusive and uninterrupted use of such Company
Intellectual Property without payment of any royalty
or other fees and has the right to bring actions for
infringement of the Company Intellectual Property. No
past or present shareholder, officer, director or
employee of the Company or any third party has any
right, title or interest in any of the Company
Intellectual Property or Company Software, and all
such Persons have waived their moral rights in any
copyright works within the Company Intellectual
Property and the Company Software.
(c) There are no outstanding rights, or licences or
permissions granted by the Company to any Person or
entity to use, sell, license, lease, transfer or
otherwise exploit the Intellectual Property.
(d) There are no outstanding rights, licenses or
permissions granted to the Company by any other
Person to use any part of the Intellectual Property
owned by other Persons.
(e) The Company has the right to use all of the
Intellectual Property. The Company represents and
warrants that it has no knowledge that the Company's
use of such trademarks infringes the rights of any
other Person.
(f) No Person has challenged the validity of the Company
Intellectual Property or the Company's rights to,
title to or interest in any of the Intellectual
Property.
(g) Neither the use of the Intellectual Property nor the
conduct of the Business has infringed or currently
infringes upon the industrial or intellectual
property rights of any other Person.
(h) No other Person has infringed the Company's rights to
the Intellectual Property, and the Company has
diligently protected its legal and moral rights to
the exclusive use of the Intellectual Property,
including Intellectual Property relating to the
Software.
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(i) There is no governmental prohibition or restriction
on the use of the Intellectual Property.
(j) All employees of the Company (whether or not employed
in connection with the Business) have agreed to
maintain the confidentiality of confidential
Intellectual Property.
(10) YEAR 2000 COMPLIANCE. The Company Software is Year 2000 Compliant.
"Year 2000 Compliant" means that the Data Processing System, the Software, and
the data and files comprised within the Assets, including the Books and Records,
will operate and interface, both internally and externally, without error,
interruption, inconsistency, generation of incorrect values or invalid results,
malfunction or inaccuracy with respect to time, dates, years, centuries or leap
years, including without limitation correctly and unambiguously (i) using,
recognizing, calculating, comparing, manipulating, managing, inputting,
outputting, transferring, communicating, storing, retrieving, sorting,
sequencing, displaying, referencing and indicating time, dates, years, centuries
(including without limitation single century and multi-century formulas) and
leap years, prior to, during and beyond the year 2000; (ii) performing
calculations to accommodate same century and multi-century formulas and calendar
date values; (iii) performing leap year calendar date references and other
calculations involving leap years; and, (iv) providing calendar date data
interface functionality reflecting the century. Any disclaimer or limitation of
liability by the Company, whether set out in this Agreement or otherwise, shall
not apply to this representation and warranty.
(11) LITIGATION. There is no action, suit, proceeding, claim, application,
complaint or investigation in any court or before any arbitrator or by any
regulatory body or governmental or non-governmental body pending or threatened
by or against the Company Related to the Business or affecting the the Business
or the transactions contemplated by this Agreement, and there is no factual or
legal basis which could give rise to any such action, suit, proceeding, claim,
application, complaint or investigation. There are no judgments, orders, decrees
or awards before any court, department, commission, board, instrumentality or
arbitrator which affects the Assets or the Business.
(12) CONFLICTS OF INTEREST. No shareholder, director, officer or employee
of the Company or any affiliate of any of the foregoing: (a) has any pecuniary
interest in any supplier or customer of the Business or in any other business
with which the Company conducts business or with which the Company is in
competition; (b) has any interest in the Assets; or (c) has any contractual or
other claim, express or implied, of any kind whatsoever against the Company in
connection with the Business or Assets.
(13) RELATED ASSETS. Neither the Company, nor Xxxxx, nor Xxxxxxxxx owns or
has any interest in any software, systems, services or other intellectual or
industrial property rights or shares of or interest in any Person involved in
the development, sale or other use of such software, systems, services or other
intellectual or industrial property rights.
(14) LICENSES AND PERMITS. To the knowledge of the Company, there are no
Licenses and Permits that are required to enable the Company to carry on the
Business.
(15) CONSENTS AND APPROVALS. No Consent or Approval of any Person is
required in connection with the execution and delivery of this Agreement and the
completion of the transaction contemplated by this Agreement.
(16) NOTICES. No Notice is required to be delivered to any Person in
connection with the execution and delivery of this Agreement and the completion
of the transactions contemplated by this Agreement.
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(17) COMPLIANCE WITH LAWS. The Business has been operated, and the Assets
used, in compliance with all requirements of applicable federal, provincial and
municipal law, and all requirements of all governmental bodies or agencies
having jurisdiction over it. The Company has not received any notice from any
federal, provincial or municipal authority or any insurance or inspection body,
that any of the properties, facilities, equipment or business procedures or
practices of the Business fails to comply with any applicable law, ordinance,
regulation, building or zoning law, or requirement of any public authority or
body wherever located. There are no regulations or legislation pending before
any federal, provincial or municipal governmental body or legislature which, if
adopted, would have a materially adverse effect on the Business or the Assets.
(18) BROKERAGE FEES. The Company has not entered into any agreement which
would entitle any Person to any valid claim against PlayStar or PlayStar for a
broker's commission, finder's fee or any like payment in respect of the
transactions contemplated by this Agreement.
(19) FULL DISCLOSURE. Neither this Agreement, including all Exhibits and
Schedules, nor any other documents or instruments delivered by the Company to
PlayStar in connection with this Agreement and the transactions contemplated by
this Agreement, contains or will contain any untrue statement of any material
fact or omits or will omit to state any material fact required to be stated to
make such statement, document or instrument not misleading. There has been no
event, transaction or information which has come to the attention of the Company
that has not been disclosed to PlayStar in writing which could reasonably, be
expected to have a material adverse effect on the ongoing operation by a
reasonable and prudent operator of the Business or any material part thereof,
except for matters which affect businesses similar to do the Business generally.
. PlayStar hereby represents and warrants to the Company as follows and
acknowledges that the Company is relying on such representations and warranties
in connection with the transactions provided for herein:
(1)INCORPORATION AND POWER. PlayStar is a corporation incorporated,
validly subsisting and in good standing under the laws of Antigua and has full
power and authority to own its properties and to carry on the business as
presently conducted by it.
(2)DUE AUTHORIZATION. PlayStar has the corporate power, authority and
capacity to enter into this Agreement and all other agreements and instruments
to be executed by it as contemplated by this Agreement and to carry out its
obligations under this Agreement and such other agreements and instruments. The
execution and delivery of this Agreement and such other agreements and
instruments and the completion of the transactions contemplated by this
Agreement and such other agreements and instruments have been duly authorized by
all necessary corporate action on the part of PlayStar.
(3)ENFORCEABILITY OF OBLIGATIONS. This Agreement constitutes a valid and
binding obligation of PlayStar enforceable against PlayStar in accordance with
its terms subject, however, to limitations on enforcement imposed by bankruptcy,
insolvency, reorganization or other laws affecting the enforcement of the rights
of creditors or others and to the extent that equitable remedies such as
specific performance and injunctions are only available in the discretion of the
court from which they are sought. PlayStar is not an insolvent Person within the
meaning of the BANKRUPTCY AND INSOLVENCY ACT (Canada) and will not become an
insolvent Person as a result of the Closing.
(4)ABSENCE OF CONFLICTING AGREEMENTS. The execution, delivery and
performance of this Agreement by PlayStar and the completion (with any required
-13-
Consents and Approvals and Notices) of the transactions contemplated by this
Agreement do not and will not result in or constitute any of the following:
(a) a default, breach or violation or an event that, with
notice or lapse of time or both, would be a default,
breach or violation of any of the terms, conditions
or provisions of the articles or by-laws of PlayStar
or of any Contract to which PlayStar is a party or
bound or by which PlayStar or any of its assets or
its properties is bound or affected; or
(b) the violation of any Applicable Law applicable to or
affecting PlayStar or any of its assets or its
properties.
(5)CONSENTS AND APPROVALS. Except for certain notifications and filings
with applicable regulatory authorities, there is no requirement for PlayStar or
PlayStar to make any filing with, give any notice to or obtain any licence,
permit, certificate, registration, authorization, consent or approval of, any
government or regulatory authority as a condition to the lawful consummation of
the transactions contemplated by this Agreement.
(6)LITIGATION. PlayStar is not a party to or, to PlayStar's best
knowledge, threatened with, any suit, action, arbitration or other legal or
administrative proceeding which would adversely affect PlayStar's obligations
under this Agreement.
(7)FULL DISCLOSURE. Neither this Agreement, including all Exhibits and
Schedules, nor any other documents or instruments delivered by PlayStar to the
Company in connection with this Agreement and the transactions contemplated by
this Agreement, contains or will contain any untrue statements of any material
fact or omits or will omit to state any material fact required to be stated to
make such statement, document or instrument not misleading.
(1)The representations and warranties of the Company contained in Section
4.1 or any other agreement, certificate or instrument delivered pursuant to this
Agreement shall survive the Closing for a period of two years from the Closing
Date, and notwithstanding the Closing and any inspection or inquiries made by or
on behalf of PlayStar, shall continue in full force and effect for the benefit
of PlayStar, after which time the Company shall be released from all obligations
in respect of such representations and warranties except with respect to any
Claims asserted by PlayStar in writing (setting out in reasonable detail the
nature of the Claim and approximate amount of such Claim) before the expiration
of such period.
(2)The representations and warranties of PlayStar contained in Section 4.2
or any other agreement, certificate or instrument delivered pursuant to this
Agreement shall survive the Closing for a period of two years from the Closing
Date, and notwithstanding the Closing, shall continue in full force and effect
for the benefit of the Company, after which time PlayStar shall be released from
all obligations in respect of such representations and warranties except with
respect to any Claims asserted by the Company in writing (setting out in
reasonable detail the nature of the Claim and the appropriate amount thereof)
before the expiration of such period.
. Each of the Company, Xxxxx and Conceicao agrees to indemnify and save harmless
PlayStar and PlayStar from all losses, claims, damages, liabilities,
-14-
deficiencies, costs and expenses (a "Claim") which may be made or brought
against an Indemnified Party or which it may suffer or incur directly or
indirectly as a result of or arising out of:
(a) any incorrectness in or breach of any representation
or warranty of the Company contained in this
Agreement or in any agreement, instrument,
certificate or other document delivered pursuant to
this Agreement; and
(b) any breach or non-performance of any covenant or
agreement on the part of the Company under this
Agreement or in any agreement, instrument,
certificate or other document delivered pursuant to
this Agreement.
. PlayStar agrees to indemnify and save harmless the Company in respect of any
Claim which may be made or brought against an Indemnified Party or which it may
suffer or incur directly or indirectly as a result of or arising out of:
(a) any incorrectness in or breach of any representation
or warranty of PlayStar contained in this Agreement
or in any agreement, instrument, certificate or other
document delivered pursuant to this Agreement;
(b) any breach or non-performance of any covenant or
agreement on the part of PlayStar under this
Agreement or in any agreement, instrument,
certificate or other document delivered pursuant to
this Agreement.
. If and Indemnified Party becomes aware of a Claim in respect of which
indemnification is provided pursuant to either of Section 5.1 or 5.2, as the
case may be the Indemnified Party shall promptly give written notice thereof to
the Indemnifying Party. Such notice shall specify whether the claim arises as a
result of a claim by a third Person against the Indemnified Party (a "Third
Party Claim") or whether the Claim does not so arise (a "Direct Claim"), and
shall also specify with reasonable particularity (to the extent that the
information is available)
(a) the factual basis for the Claim; and
(b) the amount of the Claim, if known.
If, through the fault of the Indemnified Party, the Indemnifying Party does not
receive notice of any Claim in time effectively to contest the determination of
any liability susceptible of being contested, then the Liability of the
Indemnifying Party to the Indemnified Party under this Article shall be reduced
by the amount of any losses incurred by the Indemnifying Party resulting from
the Indemnified Party's failure to give such notice on a timely basis.
. In the case of a Direct Claim, the Indemnifying Party shall have 60 days
following receipt of notice of the Claim to make such investigation of the Claim
as is considered necessary or desirable. For the purpose of such investigation,
the Indemnified Party shall make available to the Indemnifying Party the
information relied upon by the Indemnified Party to substantiate the Claim,
together with all such other information as the Indemnifying Party may
reasonably request. If both parties agree at or prior to the expiration of such
60-day period (or any mutually agreed upon extension thereof) to the validity
and amount of such Claim, the Indemnifying Party shall immediately pay to the
Indemnified Party the full agreed upon amount of the claim, failing which the
matter shall be determined by a court of competent jurisdiction.
. In the case of a Third Party Claim, the Indemnifying Party shall have the
right, at its expense, to participate in or assume control of the negotiation,
settlement or defence of the Claim. If the Indemnifying Party elects to assume
-15-
such control, the Indemnifying Party shall reimburse the Indemnified Party for
all of the Indemnified Party's out-of-pocket expenses incurred as a result of
such participation or assumption. The Indemnified Party shall have the right to
participate in the negotiation, settlement or defence of such Third Party Claim
and to retain counsel to act on its behalf, provided that the fees and
disbursements of such counsel shall be paid by the Indemnified Party unless the
Indemnifying Party consents to the retention of such counsel at its expense or
unless the named parties to any action or proceeding include both the
Indemnifying Party and the Indemnified Party by the same counsel would be
inappropriate due to the actual or potential differing interests between them
(such as the availability of different defences). The Indemnified Party shall
cooperate with the Indemnifying Party so as to permit the Indemnifying Party to
conduct such negotiation, settlement and defence and for this purpose shall
preserve all relevant documents in relation to the Third Party Claim, allow the
Indemnifying Party access on reasonable notice to inspect and take copies of all
such documents and require its personnel to provide such statements as the
Indemnifying Party may reasonably require and to attend and give evidence at any
trial or hearing in respect of the Third Party Claim. If, having elected to
assume control of the negotiation, settlement or defence of the Third Party
Claim, the Indemnifying Party thereafter fails to conduct such negotiation,
settlement or defence with reasonable diligence, then the Indemnified Party
shall be entitled to assume such control and the Indemnifying Party shall be
bound by the results obtained by the Indemnified Party with respect to such
Third Party Claim. If any Third Party Claim is of a nature such that (i) the
Indemnified Party is required by Applicable Law or the order of any court,
tribunal or regulatory body having jurisdiction, or (ii) it is necessary in the
reasonable view of the Indemnified Party acting in good faith and in a manner
consistent with reasonable commercial practices, in respect of (A) a Third Party
Claim by a customer relating to products or services supplied by the Business or
(B) a Third Party Claim relating to any Contract which is necessary to the
ongoing operations of the Business or any material part thereof in order to
avoid material damage to the relationship between the Indemnified Party and any
of its major customers or to preserve the rights of the Indemnified Party under
such an essential contract, to make a payment to any person (a "Third Party")
with respect to the Third Party Claim before the completion of settlement
negotiations or related legal proceedings, as the case may be, then the
Indemnified Party may make such payment and the Indemnifying Party shall,
promptly after demand by the Indemnified Party, reimburse the Indemnified Party
for such payment. If the amount of any liability of the Indemnified Party under
the Third Party Claim in respect of which such a payment was made, as finally
determined, is less than the amount which was paid by the Indemnifying Party to
the Indemnified Party, the Indemnified Party shall, promptly after receipt of
the difference from the Third Party, pay the amount of such difference to the
Indemnifying Party. If such a payment, by resulting in settlement of the Third
Party Claim, precludes a final determination of the merits of the Third Party
Claim and the Indemnified Party and the Indemnifying Party are unable to agree
whether such payment was unreasonable in the circumstances having regard to the
amount and merits of the Third Party Claim, then such dispute shall be referred
to and finally settled by binding arbitration from which there shall be no
appeal.
. If the Indemnifying Party fails to assume control of the defence of any Third
Party Claim, the Indemnified Party shall have the exclusive right to contest,
settle or pay the amount claimed. Whether or not the Indemnifying Party assumes
control of the negotiation, settlement or defence of any Third Party Claim, the
Indemnifying Party shall not settle any Third Party Claim without the written
consent of the Indemnified Party, which consent shall not be unreasonably
withheld or delayed; provided, however, that the liability of the Indemnifying
Party shall be limited to the proposed settlement amount if any such consent is
not obtained for any reason within a reasonable time after the request therefor.
. PlayStar shall be entitled to set-off the amount of any Claim submitted under
Section 5.1 as damages or by way of indemnification against any other amounts
payable by PlayStar to the Company whether under this Agreement or otherwise.
-16-
. The Company shall give to PlayStar and its agents access to the Company and
all of the Company's documents (including without limitation all contracts),
books and records relating to the current and past operations of the Business,
and shall permit PlayStar and its agents to make copies thereof, and the Company
shall permit PlayStar to interview the Company's employees during reasonable
business hours and upon reasonable prior notice.
(1)Each Party shall (and shall cause each of its Representatives (as
defined below) to) hold in strictest confidence and not use in any manner, other
than as expressly contemplated by this Agreement, any Confidential Information
(as defined below) of the other Party.
(2)Section 6.2(1) shall not apply to the disclosure of any Confidential
Information where such disclosure is required by Applicable Law. In that case,
the Party required to disclose (or whose Representative is required to disclose)
shall, as soon as possible in the circumstances, notify the other Party of the
requirement. Upon receiving such notification, the other Party may take any
reasonable action to challenge the requirement, and the affected Party shall (or
shall cause the applicable Representative to), at the expense of the other
Party, assist the other Party in taking such reasonable action.
(3)Following the termination of this Agreement in accordance with the
provisions of either of Sections 8.2 or 8.4, each Party shall (and shall cause
each of its Representatives to) promptly, upon a request from the other Party,
return to the requesting Party all copies of any tangible items (other than this
Agreement), if any, which are or which contain Confidential Information of the
requesting Party; provided that if the Party so obligated to return Confidential
Information or its Representatives have prepared summaries or analyses
containing or concerning any Confidential Information, then such Party may,
instead of returning the summaries or analyses, destroy them and provide a
certificate to that effect to the requesting Party.
(4)For the purposes of this Section 6.2:
(a) "CONFIDENTIAL INFORMATION" of a Party at any time
means all information relating to such Party's
business (including business plans, way of doing
business, business results and prospects and customer
lists) which,
(i) at the time is of a confidential nature
(whether or not specifically identified as
confidential) and is known or should be
known by the other Party or its
Representatives as being confidential, and
(ii) has been or is from time to time made known
to or is otherwise learned by the other
Party or any of its Representatives as a
result of the matters provided for in this
Agreement,
including the following information:
(iii) the terms of this Agreement;
(iv) a Party's proprietary software; and
-17-
(v) a Party's business records,
but not including any information that at such time:
(vi) has become generally available to the public
other than as a result of a disclosure by
the other Party or any of its
Representatives;
(vii) was available to the other Party or its
Representatives on a non-confidential basis
before the date of this Agreement; or
(viii) becomes available to the other Party or its
Representatives on a non-confidential basis
from a Person other than the first-mentioned
Party or any of its Representatives who is
not, to the knowledge of such other Party or
its Representatives, otherwise bound by
confidentiality obligations to such
first-mentioned Party in respect of such
information or otherwise prohibited from
transmitting the information to the other
Party or its Representatives; and
(b) "REPRESENTATIVES" with respect to any party means its
Affiliates and its and their respective directors,
officers, employees, agents and other representatives
and advisers.
. During the Interim Period, the Company shall, and shall cause the Company to:
(a) not do any act or omit to do any act which would
cause a breach of representation, warranty, covenant
or agreement contained in this Agreement;
(b) maintain and keep the Assets in good repair; and
(c) notify PlayStar immediately of any breach of any
representation or covenant in this Agreement.
. During the Interim Period, the Company shall not and shall cause the Company's
shareholders not to, take any action, directly or indirectly, to encourage,
initiate or engage in discussions or negotiations with, or provide any
information to any Person, other than PlayStar and its agents, concerning any
sale, transfer, assignment, license, merger or similar transaction involving the
Company, its shares, the Company or the Assets. The Company shall notify
PlayStar promptly if any such discussions or negotiations are sought or if any
proposal for a sale, transfer, assignment, license, merger or similar
transaction is received or being considered.
. The Company shall use its best efforts to obtain all Consents and Approvals
before the Closing Date at the Company's own expense.
. The Company shall update on or before the Closing, by amendment or supplement,
any of the information disclosure schedules referred to in this Agreement and
any other disclosure in writing from the Company to PlayStar as soon as
reasonably possible after new or conflicting information comes to the attention
of the Company. PlayStar shall not be obligated to accept any such amendment or
supplement and receipt of any such amendment or supplement shall not be deemed
to be a waiver or release by PlayStar of any provision of this Agreement.
-18-
. At the Closing, PlayStar Sub will enter into the Management Services Agreement
with Cyberstation Limited, a St. Kitts company which shall be substantially in
the form of Exhibit C.
. Each Party shall promptly do execute, deliver, or cause to be done, executed
or delivered all further acts, documents and things in connection with this
Agreement that the other Party may reasonably require for the purpose of giving
effect to this Agreement.
. PlayStar agrees to use reasonable efforts to ensure that the Consideration
Shares will be registered under the Securities Act as soon as reasonably
practicable following the Closing.
. The obligations of PlayStar to consummate the transactions contemplated by
this Agreement are subject to the satisfaction, on or prior to the Closing Date,
of each of the following conditions, any or all of which PlayStar may waive in
its sole discretion:
(1) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Company, Xxxxx and Xxxxxxxxx in Section 4.1 shall be true and correct as if
made on and as of the Closing.
(2) PERFORMANCE OF AGREEMENTS. The Company shall have performed and
complied with all of their covenants and agreements contained in this Agreement
which are required to be performed or complied with on or prior to the Closing.
(3) DUE DILIGENCE INVESTIGATIONS. PlayStar shall have conducted and
completed its investigation of the Company, the Business, the Assets and
PlayStar, in its sole discretion, shall have been satisfied in all respects with
the results of such investigation and, in its sole discretion, shall have
determined to proceed with the transactions contemplated by this Agreement.
(4) GOOD TITLE. PlayStar shall be satisfied that the Company is the owner
with good and marketable title to the Company Intellectual Property and the
Company Software, in each case, free and clear of any and all Liens.
(5) NO LITIGATION. There shall be no litigation or proceedings:
(a) pending or threatened against any of the parties
hereto or against any of their respective Affiliates
or any of their respective directors or officers, or
involving the assets or properties of any of them,
for the purpose of enjoining, preventing or
restraining the completion of the transactions
contemplated hereby or otherwise claiming that such
completion is improper; or
(b) pending or threatened against any of the Parties or
against any of their respective Affiliates or any of
their respective directors or officers which in the
judgment of PlayStar, would make the completion of
the transactions contemplated by this Agreement
inadvisable.
(6) REGULATORY APPROVAL. All regulatory approvals required for the issue
of the Consideration Shares shall have been received.
-19-
(7) LICENSE AGREEMENTS. The Company shall have executed and delivered the
PlayStar License Agreement and the Cyberstation License Agreement substantially
in the form of Exhibit A and Exhibit D, respectively.
(8) MANAGEMENT SERVICES AGREEMENT. Cyberstation Limited shall have
executed and delivered the Management Services Agreement substantially in the
form of Exhibit C.
(9) DREAMPLAY OPTION AGREEMENT. The Company shall have executed and
delivered the DreamPlay Option Agreement substantially in the form of Exhibit B
hereto.
(10) NET ENGINE. PlayStar Sub shall have received a transfer of 50% of the
issued and outstanding shares in the capital of Net Engine;
(11) CASINO MODULE. PlayStar Sub will have received an option in form
reasonably satisfactory to PlayStar in respect of the purchase of the Casino
Module as provided in Section 3.2.
(12) OPINIONS OF COUNSEL. The Company shall have delivered to PlayStar a
favourable opinions of counsel to the Company which shall be in a form
reasonably acceptable to PlayStar.
(13) NO ACTIONS, ETC. No action, suit, proceeding or investigation by or
before any court, administrative agency or other governmental authority shall
have been instituted or threatened, the effect of which would restrain, prohibit
or invalidate the transactions contemplated by this Agreement.
(14) CONSENTS AND APPROVALS. All Consents and Approvals have been
obtained.
(15) CERTIFICATE AS TO REPRESENTATIONS AND WARRANTIES. Each of the
Company, Xxxxx and Conceicao shall have executed and delivered to PlayStar a
certificate confirming the accuracy of all of the representations and warranties
of the Company, Xxxxx and Xxxxxxxxx contained in this Agreement.
(16) DELIVERIES. All documents required to be delivered by the Company at
or prior to the Closing Date shall have been delivered to PlayStar at Closing.
. If any condition in Section 8.1 has not been fulfilled at or before the
Closing, then PlayStar in its sole discretion may, without limiting any rights
or remedies available to PlayStar or PlayStar at law or in equity, either:
(a) terminate this Agreement by Notice to the Company, in
which event PlayStar and PlayStar shall be released
from its obligations under this Agreement to cause
PlayStar Sub to enter into the PlayStar License
Agreement; or
(b) waive compliance with any such condition without
prejudice to its right of termination in the event of
non-fulfilment of any other condition.
. The obligations of the Company to consummate the transactions contemplated by
this Agreement are subject to the satisfaction, on or prior to the Closing Date,
of each of the following conditions, any or all of which the Company may waive
in its sole discretion:
(1) REPRESENTATIONS AND WARRANTIES. The representations and warranties of
PlayStar set forth in Section 4.2 shall be true and correct as if made on and as
of the Closing.
-20-
(2) PERFORMANCE OF AGREEMENTS. PlayStar shall have performed and complied
with all of its covenants and agreements contained in this Agreement which are
required to be performed or complied with on or prior to the Closing.
(3) NO LITIGATION. There shall be no litigation or proceedings:
(a) pending or threatened against any of the parties
hereto or against any of their respective Affiliates
or any of their respective directors or officers, or
involving the assets or properties of any of them,
for the purpose of enjoining, preventing or
restraining the completion of the transactions
contemplated hereby or otherwise claiming that such
completion is improper; or
(b) pending or threatened against any of the Parties or
against any of their respective Affiliates or any of
their respective directors or officers which in the
judgment of the Company, would make the completion of
the transactions contemplated by this Agreement
inadvisable.
(4) NO ACTIONS, ETC. No action, suit, proceeding or investigation by or
before any court, administrative agency or other governmental authority shall
have been instituted or threatened, the effect of which would restrain, prohibit
or invalidate the transactions contemplated by this Agreement.
(5) PLAYSTAR LICENSE AGREEMENT. PlayStar Sub shall have executed and
delivered the PlayStar License Agreement substantially in the form of Exhibit A.
(6) MANAGEMENT SERVICES AGREEMENT. PlayStar Sub shall have executed and
delivered the Management Services Agreement substantially in the form of Exhibit
C.
(7) DIRECTOR. Xxxxx, or his nominee, shall have been appointed a director
and Chief Executive Officer of PlayStar Sub.
(8) DELIVERIES. All documents required to be delivered by PlayStar and
PlayStar at or prior to Closing shall have been delivered to the Company at
Closing.
(9) REGULATORY APPROVAL. All regulatory approvals required for the issue
of the Consideration Shares shall have been received.
(10) OPINIONS OF COUNSEL. PlayStar shall have delivered to the Company
favourable opinions of counsel to PlayStar and PlayStar Sub which will be in a
form reasonably acceptable to the Company.
. If any condition in Section 8.3 shall not have been fulfilled at or before the
Closing, then the Company in its sole discretion may, without limiting any
rights or remedies available to the Company at law or in equity, either:
(a) terminate this Agreement by Notice to PlayStar in
which event the Company shall be released from all
obligations under this Agreement; or
(b) waive compliance with any such condition without
prejudice to its right of termination in the event of
non-fulfilment of any other condition.
-21-
. The transactions provided for by this agreement shall be consummated (the
"Closing") at 10:00 a.m. (Toronto time) on the Closing Date, at the offices of
Blake, Xxxxxxx & Xxxxxxx, Toronto, Ontario, or at such other place and time as
The Company and PlayStar shall mutually agree.
. At the Closing, the Company shall deliver, or cause to be delivered, to
PlayStar:
(a) a certified resolution of the directors of the
Company approving this Agreement;
(b) a certificate signed by the President of the Company,
Xxxxx and Conceicao dated the Closing Date,
confirming: (i) the truth and accuracy of all of the
representations and warranties of the Company
contained in this Agreement as of Closing Date and as
of all times between the date hereof and the Closing
Date; (ii) all agreements and covenants of the
Company required to have been complied with have been
complied with; and (iii) that all necessary corporate
action has been taken by the Company to authorize the
consummation of the transactions contemplated by this
Agreement;
(c) a certificate signed by the Secretary or other
officer of the Company, dated the Closing Date,
attaching the constating documents of the Company,
the corporate resolutions of the Company authorizing
the execution, delivery and performance by the
Company of this Agreement and the certificate of
status of the Company;
(d) all Consents and Approvals;
(e) the PlayStar License Agreement duly executed by the
Company;
(f) the Cyberstation License Agreement executed by
Cyberstation and the Company;
(g) certificates representing 50% of the issued shares of
Net Engine endorsed in blank for transfer;
(h) the Management Services Agreement duly executed by
Cyberstation Limited;
(i) the DreamPlay Option Agreement signed by the Company;
(j) an option duly executed by the Company in favour of
PlayStar Sub to purchase the Casino Module as
provided in Section 2.1;
(k) opinion of counsel to the Company, dated the Closing
Date, in form and content reasonably acceptable to
PlayStar; and
(l) all such other assurances, transfers, assignments,
consents, and such other agreements, documents and
instruments as may be reasonably required by PlayStar
to complete the transactions provided for in this
Agreement.
At the Closing, PlayStar shall deliver or cause to be delivered to The Company:
(a) share certificates for the Consideration Shares duly
issued and registered in the name of The Company or
its nominee;
-22-
(b) a certified resolution of the sole director of
PlayStar approving this Agreement and the issue of
the Consideration Shares to the Company pursuant to
the terms hereof;
(c) certificates signed by the President of PlayStar and
by the President of PlayStar, dated the Closing Date,
confirming: (i) the truth and accuracy of all of the
representations and warranties of PlayStar contained
in this Agreement as of the Closing Date and as of
all times between the date hereof and the Closing
Date; (ii) that all agreements and covenants of
PlayStar required to have been complied with have
been complied with; and (iii) that all necessary
corporate action by PlayStar and PlayStar has been
taken to authorize the consummation of the
transactions contemplated by the Agreement;
(d) certificates signed by the Secretary or other officer
of PlayStar and of PlayStar Sub, dated the Closing
Date, attaching the respective constating documents
of PlayStar and PlayStar, the respective corporate
resolutions of PlayStar and PlayStar authorizing the
execution, delivery and performance by PlayStar and
PlayStar of this Agreement and certificates of status
of PlayStar and of PlayStar;
(e) the PlayStar License Agreement duly executed by
PlayStar Sub;
(f) the Shareholders Agreement duly executed by PlayStar;
(g) the Management Services Agreement duly executed by
PlayStar Sub; and
(h) opinions of counsel to PlayStar and PlayStar Sub,
dated the Closing Date, in form and content
reasonably acceptable to The Company.
. Each Party shall be responsible for its own legal and other expenses
(including any taxes imposed on such expenses) incurred in connection with the
negotiation, preparation, execution, delivery and performance of this Agreement
and the transactions contemplated by this Agreement and for the payment of any
broker's commission, finder's fee or like payment payable by it in respect of
the transactions contemplated by this Agreement.
. Except to the extent otherwise required by law or with the prior consent of
the other Party, neither Party shall make any public announcement regarding this
Agreement or the transactions contemplated by this Agreement.
(1) All notices and other communications hereunder shall be in writing and
shall be sent by certified mail, postage prepaid, return receipt requested; by
an overnight express courier services that provides written confirmation of
delivery; or by facsimile with confirmation, addressed as follows:
IF TO PLAYSTAR:
PlayStar Wyoming Holding Corp.
The Dollar Building
Nevis Street, Top Floor
St. John's, Antigua
WI
Fax: (000) 000-0000
Attention: Xxxxxxx X.X. Xxxxxx
-23-
With a copy (which shall not constitute notice) to:
Blake, Xxxxxxx & Xxxxxxx
Box 00
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Fax: (000) 000-0000
Attention: X. X. Xxxxx
IF TO XXXXX OR XXXXXXXXX, ADDRESSED TO XXXXX AND/OR CONCEICAO,
AS THE CASE MAY BE:
Cyberstation Computers & Support Inc.
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxx Xxxxx
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx & Xxxxxx
1 First Canadian Place
000 Xxxx Xxxxxx Xxxx
P.O. Box 160, Suite 700
Toronto, Ontario
M5X 1C7
Attention: Xxx Xxxxxx
Fax: (000) 000-0000
IF TO THE COMPANY:
Cyberstation Limited
6 Horizons Villas
Fort Tyson
Frigate Bay
St. Kitts, WI
Attention: The President
Fax: (000) 000-0000
-24-
With a copy (which shall not constitute notice) to:
Xxxxxx & Xxxxxx
1 First Canadian Place
000 Xxxx Xxxxxx Xxxx
P.O. Box 160, Suite 700
Toronto, Ontario M5X 1C7
Attention: Xxx Xxxxxx
Fax: (000) 000-0000
(2) Any such communication so given or made shall be deemed to have been
given or made and to have been received on the day of delivery if delivered, or
on the day of faxing or sending by other means of recorded electronic
communication, provided that such day in either event is a Business Day and the
communication is so delivered, faxed or sent before 4:30 p.m. on such day.
Otherwise, such communication shall be deemed to have been given and made and to
have been received on the next following Business Day. Any such communication
sent by mail shall be deemed to have been given and made and to have been
received on the fifth Business Day following the mailing thereof; provided
however that no such communication shall be mailed during any actual or
apprehended disruption of postal services. Any such communication given or made
in any other manner shall be deemed to have been given or made and to have been
received only upon actual receipt.
(3) Any Party may change its address for receiving notice by giving notice
of a new address in the manner provided herein.
. This Agreement constitutes the entire agreement between the parties pertaining
to the subject matter of this Agreement and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written. There are
no conditions, warranties, representations or other agreements between the
parties in connection with the subject matter of this Agreement (whether oral or
written, express or implied, statutory or otherwise) except as specifically set
out in this Agreement.
. Time shall be of the essence of this Agreement.
. If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable in any respect, such
determination shall not impair or affect the validity, legality or
enforceability of the remaining provisions hereof, and each provision is hereby
declared to be separate, severable and distinct.
. This Agreement shall be construed, interpreted and enforced in accordance
with, and the respective rights and obligations of the parties shall be governed
by, the laws of the Province of Ontario and the federal laws of Canada
applicable therein, and each Party hereby irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of such province and all
courts competent to hear appeals therefrom.
. A waiver of any default, breach or non-compliance under this Agreement is not
effective unless in writing and signed by the Party to be bound by the waiver.
No waiver shall be inferred from or implied by any failure to act or delay in
acting by a Party in respect of any default, breach or non-observance or by
anything done or omitted to be done by the other Party. The waiver by a Party of
any default, breach or non-compliance under this Agreement shall not operate as
a waiver of that Party's rights under this Agreement in respect of any
continuing or subsequent default, breach or non-observance (whether of the same
or any other nature).
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. This Agreement may not be assigned by any Party without the prior written
consent of the other Parties. This Agreement shall be binding upon the parties
hereto, and their successors and permitted assigns.
. This Agreement may be executed in any number of counterparts, by facsimile or
otherwise, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the date first written above.
PLAYSTAR WYOMING HOLDING CORP.
By: /s/ XXXXXX XXXXX
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CYBERSTATION LIMITED
By: /s/ XXXXXX XX XXXXXXXXX
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