ASSET PURCHASE AND SALE AGREEMENT
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THIS ASSET PURCHASE AND SALE AGREEMENT (this "Agreement") is made and
entered into as of August 5, 1999, by and among CyberGames International, Inc.,
a Nevada corporation ("Buyer") and MasterCoin of Nevis Ltd, a Nevis limited
corporation ("Seller"), and Xxx Xxxxxxxx, an individual and the sole shareholder
of Seller (the "Shareholder"). All capitalized terms not otherwise specifically
defined herein shall have the meanings set forth in Article VII below.
Background
WHEREAS, the Seller is engaged in the business of developing and
marketing an electronic currency (the "Business"); and
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, certain of the assets of Seller as more particularly set forth
below; and
WHEREAS, the Shareholder is the sole shareholder of Seller and will
benefit from the sale of the Assets (as defined below) by Seller to Buyer;
Agreement
NOW, THEREFORE, in consideration of the respective representations,
warranties and covenants contained herein and for other good and valuable
consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
SALE OF ASSETS; CLOSING
1.1 Assets. Subject to the terms and conditions of this Agreement, at
the Closing, Seller shall sell, transfer, assign and deliver to Buyer, and Buyer
shall purchase from Seller all right, title and interest in and to the items set
forth on Schedule 1.1, attached hereto and made a part hereof (the "Assets").
1.2 Assumption of Liabilities. Buyer is not assuming any Liability of
Seller of any kind or nature other than those expressly set forth on Schedule
1.2, attached hereto and made a part hereof (the "Assumed Liabilities"). In
connection with the acquisition of the Assets, Seller understands and
acknowledges that except for the Assumed Liabilities, Buyer shall have no
obligation for any Liability of Seller of any kind or nature.
1.3 Purchase Price.
(a) The total purchase price (the "Purchase Price") for all of
the Assets shall consist of Buyer's issuance of 6,925,000 shares of the common
stock, no par value, of Buyer (the "CyberGames Common Stock") to be issued and
delivered at the Closing in accordance with Section 1.5(b) below (collectively,
the "Shares"):
(b) The parties hereto agree to allocate the Purchase Price
among the Assets for all purposes in accordance with an allocation schedule set
forth on Schedule 1.3(c), attached hereto and made a part hereof.
1.4 Closing. The parties hereto agree to close the purchase and
sale (the "Closing") provided for in this Agreement immediately following the
execution of this Agreement (the "Closing Date") and shall be effective as of
12:01 a.m. on the Closing Date.
1.5 Closing Deliveries.
(a) At the Closing, Seller shall deliver to Buyer:
(i) an executed Xxxx of Sale in substantially the
form of Exhibit A, transferring to Buyer the Assets, free and clear of
all Encumbrances;
(ii) possession of all of the tangible Assets and
copies of the records of the Company;
(iii) subscription agreements, in form and substance
acceptable to Buyer in its absolute discretion, executed by Xxxxxxx
Xxxxx ("Xxxxx") and Xxxxx Xxxxx ("Xxxxx") with respect to the Shares to
be issued to Xxxxx and Xxxxx as contemplated by Section 1.5(b) below;
and
(iv) such other documents, agreements, assignments,
instruments and certificates as may be required by this Agreement or as
may be reasonably requested by Buyer to carry out the terms and
conditions of this Agreement.
(b) At the Closing, Buyer, Xxxxx and Xxxxx shall deliver to
Seller (which deliveries may be waived in Seller's sole and absolute
discretion):
(i) executed certificates representing the Shares in
such denominations as Seller shall instruct Buyer in writing prior to
the Closing; and
(ii) such other documents, agreements, assignments,
instruments and certificates as may be required by this Agreement or as
may be reasonably requested by Seller to carry out the terms and
conditions of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
For the purpose of inducing Buyer to enter into this Agreement and with
the knowledge that Buyer will rely on the following representations and
warranties, as of the Closing Date, Seller and the Shareholder, jointly and
severally, represent and warrant to Buyer as follows:
2.1 Organization, Existence and Good Standing. Seller (i) is a Nevis
corporation, duly organized, validly existing and in good standing under the
laws of Nevis, West Indies, (ii) is qualified to do business in every
jurisdiction in which its ownership of property or conduct of business requires
it to be so qualified (iii) has full corporate power and authority to carry on
the Business as now being conducted to own and operate its properties and assets
including the Assets. Seller has not for the past five years, and is not
currently, conducting the Business under any names other than "MasterCoin."
2.2 Authority. Each of Seller and the Shareholder has full power and
authority to execute and deliver this Agreement and to perform its and his
obligations hereunder. This Agreement constitutes the legal, valid and binding
obligation of each of Seller and the Shareholder enforceable against Seller and
the Shareholder in accordance with its terms. All corporate or shareholder
action necessary to approve this transaction on the part of Seller has been
obtained.
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2.3 Consents and Approvals; No Violation. Neither the execution,
delivery and performance of this Agreement, nor the consummation of the
transactions contemplated hereby will (i) violate or conflict with, (ii) result
in, or require the creation or imposition of, any Encumbrance upon or with
respect to any of the Assets pursuant to, (iii) require Seller or the
Shareholder to make any filing or registration with, give notice to, or obtain
any consent, approval or authorization from any Governmental Authority or any
other Person (including creditors) in accordance with, (iv) result in a breach
of, (v) constitute (with or without due notice or lapse of time or both) a
default under, or (vi) give rise to any right of termination, cancellation or
acceleration under, any provision of the charter documents of of Seller, any
Legal Requirement binding upon Seller or the Shareholder, any contract,
agreement, license, lease, instrument or other arrangement binding upon Seller
or the Shareholder, or any Governmental Authorization or any other instrument or
obligation to which Seller or the Shareholder is a party, by which Seller, the
Shareholder or any of the Assets may be bound or to which Seller, the
Shareholder or any of the Assets may be subject.
2.4 Books and Records. All records of the Business have been made
available to Buyer and are true, complete and correct. At the Closing, all such
records will be in the possession of Seller and will be delivered to Buyer.
2.5 Title to Assets and Related Matters. Seller owns and has good and
marketable title in and to all of the Assets free and clear of all Encumbrances
and the claims or rights of any other Person. All of the tangible Assets are
merchantable and in good working order and repair. The Assets are sufficient for
the conduct of the Business as conducted by Seller during the one-year period
immediately prior to the Closing. All right, title and interest of Seller with
respect to the Assets will be enforceable by Buyer after the Closing without the
consent or agreement of any other Person.
2.6 Contracts. Schedule 2.5 contains an accurate and complete listing
of all of the contracts between Seller and any other Person other than Buyer or
related to the Business (the "Contracts"). Except as set forth in Schedule 2.5,
no amounts have been paid in advance in the form of fees or compensation to
Seller or any of its affiliates with respect to the Contracts and no amount is
owed by Seller to any Person for goods or services received with respect
thereto. True, correct and complete copies of the Contracts have been delivered
to Buyer. With respect to each of the Contracts:
(1) Each is in full force and effect, is legal, valid and
binding and is enforceable in accordance with its terms. Each will continue to
be in full force and effect, legal, valid and binding and enforceable, subject
to obtaining consent to the assignment thereof from the other parties thereto,
in accordance with its terms following the consummation of the transactions
contemplated hereby;
(2) There are no defaults under or breaches thereof, and no
condition exists or event has occurred which, with notice or lapse of time or
both, would constitute a default or a basis for force majeure or other claim of
excusable delay or non-performance thereunder; and
(3) No party to any of the Contracts has repudiated any
provision of such Contract and there has been no indication or notice of
termination or intent to terminate given, orally or in writing, by any such
party.
2.7 Compliance With Laws. Seller is in compliance with all Legal
Requirements applicable to it, the ownership of the Assets or the operation of
the Business or any combination thereof, and Seller has no basis to expect, nor
has it received, any Order, notice, or other communication from any Governmental
Authority or other Person of any alleged, actual, or potential violation of or
failure to comply with any such Legal Requirement. Seller has maintained and
currently has in full force and effect all required, appropriate and customary
licenses and Governmental Authorizations to conduct the Business.
2.8 Litigation. Neither Seller nor the Shareholder is subject to any
Order affecting the Assets or Seller's or the Shareholder's ability to carry out
the terms of this Agreement, there are no Proceedings pending or threatened
against Seller or the Shareholder which would affect Seller's or the
Shareholder's ability to carry out the terms of this Agreement or which would
affect title to the Assets, and there exist no facts to serve as a basis for any
assertion or institution of any Proceeding.
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2.9 No Broker's or Finder's Fees. No agent, broker, investment banker
or similar Person has acted directly or indirectly on behalf of Seller or the
Shareholder in connection with this Agreement or the transactions contemplated
hereby, and no Person, including Seller and/or the Shareholder, is or will be
entitled to any broker's or finder's fee or any other commission or similar fee
or expense, directly or indirectly, in connection with this Agreement or the
transactions contemplated hereby.
2.10 Financial Statements. Seller has delivered to Buyer certain
financial statements (including an income statement for the period ending
December 31,1998, and a balance sheet as of December 31, 1998, (the "Balance
Sheet")). Such financial statements fairly present the financial condition and
results of operations of Seller and the Business as of the respective dates
thereof and for the periods therein referenced. There are no taxes or
assessments owed or payable by Seller nor, upon consummation of the transaction
contemplated by this Agreement, will any taxes or assessments be payable by
Buyer with respect to Seller's operations, any Asset or the consummation of the
transactions contemplated by this Agreement.
2.11 Intellectual Property. Seller has the absolute right to use,
commercialize, exploit and transfer the intellectual property used,
commercialized or exploited by Seller in the conduct of the Business. Such
intellectual property constitutes a portion of the Assets. Seller has not
interfered with, infringed upon, misappropriated, or otherwise come into
conflict with any intellectual property rights of third parties. To the
knowledge of Seller, no third party has interfered with, infringed upon,
misappropriated, or otherwise come into conflict with any intellectual property
rights of Seller. No claim has been made that Seller's use of the Assets
infringes on the right of any other Person, nor has notice been given of any
such claim. Use of the Assets by Buyer in the Business will not interfere with,
infringe upon, misappropriate, or otherwise come into conflict with any
intellectual property rights of third parties.
2.12 Seller Shares. The Shareholder holds of record one hundred percent
(100%) of the issued and outstanding capital stock of Seller. No other Person
owns any equity securities of Seller, any options or warrants for the purchase
of any such equity securities or has any agreement with Seller or the
Shareholder for the purchase of any such equity securities or any options,
warrants or other rights to acquire such equity securities.
2.13 Securities Matters. Seller makes the following representations and
warranties with respect to its receipt of the Shares:
(a) Seller, Xxxxx and Xxxxx are the sole and true parties in
interest and are not acquiring the Shares for the benefit of any other Person.
(b) Seller confirms that all documents requested by it, its
officers, directors and shareholders have been made available and that each of
it, its officers, directors and shareholders has been supplied with all of the
additional information concerning the Shares and Buyer that has been requested.
(c) Seller has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of owning
the Shares.
(d) Seller is aware that the Shares are highly speculative and
subject to substantial risks. Seller understands there is a high degree of
economic risk associated with the Shares, including, but not limited to, the
possibility of the complete loss of any economic value for the shares and there
is limited transferability of the Shares, which may make the liquidation of the
Shares impossible for the indefinite future.
(e) Seller was able to ask questions of and receive answers
concerning the terms and conditions of this transaction and ask questions and
receive answers regarding the Company. At no time was Seller presented with or
solicited by or through any leaflet, public promotional meeting, television
advertisement or any other form of general advertising.
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(f) The Shares are being acquired solely for the account of
Seller, Xxxxx and Xxxxx, for investment, and are not being acquired with a view
to the resale, distribution, subdivision or fractionalization thereof.
(g) Seller understands that the Shares will not be registered
under the Securities Act of 1933, as amended (the "Securities Act"), or any
state securities laws, in partial reliance upon exemptions from registration for
certain private offerings. Seller understands and agrees that the Shares or any
interest therein, cannot be resold or otherwise disposed of by Seller in
contravention of the Securities Act or any other federal or any state securities
law or in a manner that could jeopardize the exemption from registration upon
which Buyer is relying for the issuance of the Shares.
(h) None of the following information has ever been
represented, guaranteed or warranted to Seller or any of its officers, directors
or shareholders, expressly or by implication, by any Person:
(1) The approximate or exact length of time that
Seller will be required to remain a shareholder of Buyer; or
(2) The percentage of profit and/or amount of or type
of consideration, profit
or loss to be realized, if any, as a result of owning Shares in Buyer.
2.14 Disclosure. Seller has not failed to disclose to Buyer any
information known to Seller or the Shareholder that is material to Buyer's
decision to enter into this Agreement and purchase the Assets. No representation
or warranty of either Seller or the Shareholder or both contained in this
Agreement or in the schedules to this Agreement contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements herein or therein, in light of the circumstances under which they
were made, not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
3.1 Authority. Buyer has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. This Agreement
has been duly and validly executed and delivered by Buyer and constitutes the
legal, valid and binding agreement of Buyer enforceable against Buyer in
accordance with its terms.
3.2 Consents and Approvals; No Violation. Neither Buyer's execution and
delivery of this Agreement, nor Buyer's consummation of the transactions
contemplated hereby will, as of the date hereof or as of the Closing Date: (i)
violate or conflict with, (ii) result in, or require the creation or imposition
of, any Encumbrance upon or with respect to any of the Assets pursuant to, (iii)
require Buyer to make any filing or registration with, give notice to, or obtain
any consent, approval or authorization from any Governmental Authority or any
other Person (including creditors), (iv) result in a breach of, or (v)
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration) under, any
provision of the Articles of Incorporation or Bylaws of the Buyer, any Legal
Requirement binding upon Buyer, any contract, agreement, license, lease,
instrument or other arrangement, or any Governmental Authorization or other
instrument or obligation to which Buyer is a party, or by which Buyer may be
bound or to which any of its assets may be subject.
3.3 No Broker's or Finder's Fees. No agent, broker, investment banker
or similar Person has acted directly or indirectly on behalf of Buyer in
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connection with this Agreement or the transactions contemplated hereby, and no
Person, including Buyer, is or will be entitled to any broker's or finder's fee
or any other commission or similar fee or expense, directly or indirectly, in
connection with this Agreement or the transactions contemplated hereby.
ARTICLE IV
COVENANTS OF PARTIES AFTER CLOSING
Each of the parties hereto agrees as follows with respect to the period
beginning immediately after the Closing:
4.1 Further Assurances of Seller. Seller and the Shareholder will, upon
the request of Buyer from time to time after the Closing, execute and deliver,
and use its best efforts to cause other Persons (including the Shareholder,
Xxxxx and Xxxxx) to execute and deliver, to Buyer all such further documents and
instruments, and will do or use their best efforts to cause to be done such
other acts, as Buyer may reasonably request more completely to consummate and
make effective the transactions contemplated hereby.
4.2 Payment of Costs. Shareholder shall bear its and Seller's costs and
expenses (including, without limitation, fees and expenses of business brokers,
legal counsel, accountants and other representatives, consultants, facilitators
and advisors, except as otherwise specifically set forth herein) incurred at any
time in connection with this Agreement and the transactions contemplated hereby.
Buyer shall bear its costs and expenses (including, without limitation, fees and
expenses of business brokers, legal counsel, accountants and other
representatives, consultants, facilitators and advisors, except as otherwise
specifically set forth herein) incurred at any time in connection with this
Agreement and the transactions contemplated hereby.
4.3 Restrictions on Transfer of Shares. The Shares will not be
registered under the Securities Act, and may not be sold, transferred, or
otherwise disposed of for value unless they are subsequently registered under
the Securities Act or an exemption from such registration is available, as
evidenced by an opinion of counsel retained by Seller and addressed to and
reasonably satisfactory to Buyer. Each certificate evidencing the Shares shall
be stamped or otherwise imprinted with a legend substantially in the following
form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND ARE "RESTRICTED SECURITIES" WITHIN THE
MEANING OF RULE 144 PROMULGATED UNDER THE SECURITIES ACT. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE
SOLD OR TRANSFERRED WITHOUT COMPLYING WITH RULE 144 IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION OR OTHER COMPLIANCE UNDER
THE SECURITIES ACT.
ARTICLE V
DEFAULT/INDEMNIFICATION
5.1 Default. If there is a breach of any of Seller's representations,
warranties or covenants contained in this Agreement or if any of such
representations or warranties are inaccurate, Buyer shall give written notice of
such breach or default to Seller and Seller shall have thirty (30) days after
receipt of such notice to cure the breach or default. If Seller shall not cure
such breach or default within such thirty (30) day cure period, Buyer shall be
entitled to pursue the indemnification relief set forth in Sections 5.2 through
5.4 of this Article V or any other remedy available to Buyer, including, without
limitation the remedies specified in Section 6.11. Notwithstanding anything in
this Section 5.1 to the contrary, the notice requirement and thirty (30) day
right to cure period provided for in this Section 5.1 shall not apply if Buyer
has been sued or is threatened with legal action as a result of such breach or
default or any other emergency that Buyer reasonably determines to require
expedited resolution, and, in each such case, the provisions of Sections 5.2
through 5.4 and Section 6.11 shall immediately apply.
5.2 Indemnification by Seller. Seller and the Shareholder, jointly and
severally, unconditionally, absolutely and irrevocably agree to and shall
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defend, indemnify and hold harmless Buyer, and each of Buyer's officers,
directors, employees, successors or assigns (Buyer and such persons are
collectively referred to as the "Buyer's Indemnified Persons") from and against,
and shall reimburse Buyer's Indemnified Persons for, each and every Loss
threatened against, paid or incurred by, or imposed on, any Buyer's Indemnified
Person, directly or indirectly, relating to, resulting from or arising out of:
(a) any inaccuracy in any representation or warranty, any breach or
nonfulfillment of any covenant, agreement or other obligation of Seller under
this Agreement, the schedules to the Agreement, or any agreement, certificate or
other document delivered or to be delivered by Seller pursuant hereto in any
respect; (b) any claim made based on facts alleged which, if true, would have
constituted any such inaccuracy, breach or nonfulfillment; (c) the ownership or
operation of the Assets or any activities with respect to the Assets or the
Business prior to the Closing Date; (d) the disposition of any of the Shares or
any part thereof, except as contemplated by this Agreement; or (e) the
application or any violation of, or failure to comply with, any Legal
Requirement by Seller or the Shareholder. With respect to matters not involving
Proceedings brought or asserted by third parties, within thirty (30) days after
notification from any of Buyer's Indemnified Persons supported by reasonable
documentation setting forth the nature of the circumstances entitling any or all
of Buyer's Indemnified Persons to indemnity hereunder, Seller and the
Shareholder, at no cost or expense to Buyer's Indemnified Persons, shall
diligently commence resolution of such matters in a manner reasonably acceptable
to Buyer's Indemnified Persons and shall diligently and timely prosecute such
resolution to completion; provided, however, with respect to those valid claims
that may be satisfied by payment of a liquidated sum of money and which are not
disputed reasonably and in good faith by Seller, Seller and the Shareholder
shall promptly pay the amount so claimed. If litigation or any other Proceeding
is commenced or threatened, the provisions of Section 5.4 below shall control
over the immediately preceding sentence.
5.3 Indemnification by Buyer. Buyer unconditionally, absolutely and
irrevocably agrees to and shall defend, indemnify and hold harmless Seller from
and against, and shall reimburse Seller for, each and every Loss paid, imposed
on or incurred by Seller, directly or indirectly, relating to, resulting from or
arising out of: (a) any inaccuracy in any representation or warranty or any
breach or nonfulfillment of any covenant, agreement or other obligation of Buyer
under this Agreement or under any agreement, certificate or other document
delivered or to be delivered by Buyer pursuant hereto in any material respect,
or (b) the ownership, management, operation or control of Buyer's business after
the Closing Date.
5.4 Notice and Defense of Third Party Claims. If any Proceeding shall
be brought or asserted under this Article V against an indemnified party or any
successor thereto (the "Indemnified Person") in respect of which indemnity may
be sought under this Article V from an indemnifying person or any successor
thereto (the "Indemnifying Person"), the Indemnified Person shall undertake the
defense, compromise or settlement of such Proceeding with counsel reasonably
satisfactory to the Indemnified Person, and the Indemnifying Person shall assume
and pay all fees, costs and expenses relating to or associated with the
Indemnified Person's defense thereof, including all fees and costs of counsel
and the payment of all costs and expenses in connection therewith. The
Indemnified Person shall give prompt written notice of such Proceeding to the
Indemnifying Person; provided, that any delay or failure to so notify the
Indemnifying Person shall relieve the Indemnifying Person of its obligations
hereunder only to the extent, if at all, that the Indemnifying Person is
materially prejudiced by reason of such delay or failure. Actual or threatened
action by a Governmental Authority or other Person is not a condition or
prerequisite to the Indemnifying Person's obligations under this Article V. In
connection with the Indemnified Person's defense of any such Proceeding, the
Indemnifying Person shall, reasonably and in good faith, assist and cooperate in
the defense thereof.
ARTICLE VI
MISCELLANEOUS
6.1 Survival of Representations and Warranties. All representations and
warranties of the parties hereto shall survive the Closing.
6.2 Amendment and Modification. This Agreement may be amended,
modified, terminated, rescinded or supplemented only by written agreement signed
by the parties hereto.
6.3 Waiver; Consents. Any failure of a party to comply with any
obligation, covenant, agreement or condition herein may be waived by each party
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affected thereby only by a written instrument signed by the party granting such
waiver. No waiver, or failure to insist upon strict compliance, by any party of
any term or condition or any breach of any term or condition contained in this
Agreement, in any one or more instances, shall be construed to be a waiver of,
or estoppel with respect to, any other term or condition or any other breach of
the same. Whenever this Agreement requires or permits consent by or on behalf of
any party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver.
6.4 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when (i) delivered
personally, or (ii) sent by telecopier (with receipt confirmed), provided that a
copy is mailed by registered or certified mail, return receipt requested, or
(iii) received by the addressee, if sent by Express Mail, Federal Express or
other express delivery service (receipt requested) or (iv) three (3) days after
being sent by registered or certified mail, return receipt requested, in each
case to the other party at the following addresses and telecopier numbers (or to
such other address or telecopier number for a party as shall be specified by
like notice; provided that notices of a change of address or telecopier number
shall be effective only upon receipt thereof):
if to Seller, to:
MasterCoin of Nevis Ltd.
Attention: Xxx Xxxxxxxx
Xxxxx Xxxxx, X.X. Xxx 0000
Xxxxxxxxxx Xxxx
Basseterre, St. Kitts, West Indies
Fax: (000) 000-0000
if to Buyer, to:
CyberGames International, Inc.
X.X. Xxx 00000
Xxxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Fax: (000) 000-0000
6.5 Assignment. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any party
hereto without the prior written consent of the other party.
6.6 Governing Law. This Agreement shall be governed by the laws of the
State of Nevada (regardless of the laws that might otherwise govern under
applicable principles of conflicts of law) as to all matters, including matters
of validity, construction, effect, performance and remedies.
6.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement. This Agreement may be
executed by facsimile signatures, each of which will be deemed an original.
6.8 Entire Agreement. This Agreement, including the instruments,
memoranda, certificates, exhibits, schedules and other documents referred to
herein (and all of which are hereby incorporated herein), embodies the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, representations,
warranties, covenants, or undertakings other than those expressly set forth or
referred to herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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6.9 Attorneys' Fees. In the event any party hereto institutes a
Proceeding against any other party hereto for a claim arising out of or to
enforce this Agreement, the party that prevails by enforcing this Agreement
shall be entitled to recover reasonable attorneys' fees, costs and expenses
incurred, in addition to any other relief to which they may be entitled.
6.10 Construction. This Agreement shall be construed as though all
parties had drafted it.
6.11 Non-Exclusivity of Remedies. The rights and remedies of the
parties hereto shall not be mutually exclusive, and the exercise of one or more
of the provisions of this Agreement shall not preclude the exercise of any other
provision. Each of the parties confirms that damages at law may be an inadequate
remedy for a breach or threatened breach of any of the provisions hereof. The
respective rights and obligations hereunder shall be enforceable by specific
performance, injunction, or other equitable remedy, but nothing herein contained
is intended to or shall limit or affect any rights at law or by statute or
otherwise of any party hereto as against the other party for a breach or
threatened breach of any provision hereof.
6.12 Risk of Loss. Seller shall retain all risk of loss with respect to
the Assets until the Closing has occurred.
ARTICLE VII
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the
meanings specified or referred to below whether or not capitalized when used in
this Agreement. Any reference or citation to a law, statute or regulation shall
be deemed to include any amendments to that law, statute or regulation and
judicial and administrative interpretations of it.
"Encumbrance" means any lien, pledge, hypothecation, charge, mortgage,
deed of trust, security interest, encumbrance, equity, trust, equitable
interest, claim, easement, right-of-way, servitude, right of possession, lease
tenancy, license, encroachment, burden, intrusion, covenant, infringement,
interference, proxy, option, right of first refusal, community property
interest, legend, defect, impediment, exception, condition, restriction,
reservation, limitation, impairment, imperfection of title, restriction on the
transfer of any security or other asset, restriction on the receipt of any
income derived from any security or other asset, and restriction on the
possession, use, exercise or transfer of any other attribute of ownership,
whether based on or arising from common law, constitutional provision, statute,
contract or otherwise.
"Entity" means any corporation (including any non-profit corporation),
limited liability company, general partnership, limited partnership, joint
venture, joint stock association, estate, trust, cooperative, foundation, union,
syndicate, league, consortium, coalition, committee, society, firm, company or
other enterprise, association, organization or entity of any nature, other than
a Governmental Authority.
"Governmental Authority" means any foreign governmental authority, the
United States of America, any State of the United States of America, any local
authority and any political subdivision of any of the foregoing, any
multi-national organization or body, any agency, department, commission, board,
bureau, court or other authority thereof, or any quasi-governmental or private
body exercising, or purporting to exercise, any executive, legislative,
judicial, administrative, police, regulatory or taxing authority or power of any
nature.
"Governmental Authorization" means any permit, license, franchise,
approval, certificate, consent, ratification, permission, confirmation,
endorsement, waiver, certification, registration, transfer, qualification or
other authorization issued, granted, given or otherwise made available by or
under the authority of any Governmental Authority or pursuant to any Legal
Requirement.
"Legal Requirement" means any law, statute, ordinance, decree,
requirement, Order, treaty, proclamation, convention, rule or regulation (or
interpretation of any of the foregoing) of, and the terms of any Governmental
9
Authorization issued by, any Governmental Authority.
"Liability" means any debt, obligation, duty or liability of any nature
(including any unknown, undisclosed, unfixed, unliquidated, unsecured,
unmatured, unaccrued, unasserted, contingent, conditional, inchoate, implied,
vicarious, joint, several or secondary liability), regardless of whether such
debt, obligation, duty or liability would be required to be disclosed on a
balance sheet prepared in accordance with GAAP.
"Loss" means any loss, damage, injury, harm, detriment, decline in
value, lost opportunity, Liability, exposure, claim, demand, Proceeding,
settlement, judgment, award, punitive damage award, fine, penalty, tax, fee,
charge, cost or expense (including costs of attempting to avoid or in opposing
the imposition thereof, interest, penalties, costs of preparation and
investigation, and the fees, disbursements and expenses of attorneys,
accountants and other professional advisors), as well as, with respect to
compliance with any Environmental Law.
"Order" means any order, judgment, injunction, edict, decree, ruling,
pronouncement, determination, decision, opinion, sentence, subpoena, consent
decree, writ or award issued, made, entered or rendered by any court,
administrative agency or other Governmental Authority or by any arbitrator.
"ordinary course of business" or "business in the ordinary course"
means the ordinary course of the Business consistent with past custom and
practice of Seller, including with respect to quantity and frequency.
"Person" means any individual, Entity or Governmental Authority.
"Proceeding" means any action, suit, litigation, arbitration, lawsuit,
claim, proceeding (including any civil, criminal, administrative, investigative
or appellate proceeding and any informal proceeding), prosecution, contest,
hearing, inquiry, inquest, audit, examination, investigation, challenge,
controversy or dispute commenced, brought, conducted or heard by or before, or
otherwise involving, any Governmental Authority or any arbitrator.
Signatures set forth on following page
10
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed on its behalf as of the date first above written.
"Buyer": "Seller":
CyberGames International, Inc.. MasterCoin of Nevis, Ltd,
a Nevada corporation a Nevis limited corporation
By: ____________________________________ By: _______________________
Name: _________________________________ Name: _____________________
Title: __________________________________ Title: ____________________
11
SCHEDULES
Schedule 1.1 - Assets
Schedule 1.2 - Assumed Liabilities
Schedule 1.3(c) - Purchase Price Allocation
Schedule 2.5 - Contracts
12
Schedule 1.1
Assets
------
The Assets are described on the pages attached to this Schedule 1.1,
including, without limitation, all good will associated therewith.
13
Schedule 1.2
Assumed Liabilities
-------------------
None.
14
Schedule 1.3(c)
Purchase Price Allocation
-------------------------
15
Schedule 2.5
Contracts
---------
See attached contracts.
16
EXHIBITS
EXHIBIT A - XXXX OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT
17
Exhibit A
Xxxx of Sale and Assignment
---------------------------
[see document attached hereto]
