Exhibit 6.3
SECOND AMENDING AGREEMENT
THIS SECOND AMENDING AGREEMENT is made as of the 6th day of August
1999.
BETWEEN:
MAC MULTIMEDIA ACCELERATOR CORP., a company incorporated
--------------------------------
under the laws of the Province of British Columbia with a
registered and records office at 0000-0000 Xxxx Xxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0.
(the "Vendor")
AND:
XXX-XXX.XXX, a corporation incorporated under the laws of
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the State Nevada with a registered and records office at 0
Xxxxx Xxxxxx, Xxxxx 0000, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxx, 00000-0000, XXX.
(the "Purchaser")
WHEREAS:
A. The Purchaser changed its name from Hartco, Ltd. to Xxx-Xxx.Xxx on
August 4, 1999;
B. The Vendor and Hartco, Ltd. entered into an Asset Purchase Agreement
made as of June 10, 1999 and an Amending Agreement made as of June 21,
1999 (collectively, the "Agreement"); and
C. The Vendor and the Purchaser wish to further amend the Agreement.
NOW THEREFORE, THIS AMENDING AGREEMENT WITNESSES that, in
consideration of the covenants, agreements, representations and warranties
hereinafter set forth and provided for, the parties hereto covenant and agree as
follows:
1. Section 1.1(c) of the Agreement shall be deleted and be replaced with
the following:
" "Closing Date" means December 30, 1999 or such other day as may be
determined under the provisions of Section 6.2 or as may otherwise be
mutually agreed upon in writing by the parties hereto;"
2. Section 1.1 (e) of the Agreement shall be deleted and be replaced with
the following:
" "Development Agreement" means the software development agreement
dated as of May 1, 1998 between the Vendor and Mindquake, as amended
by an agreement dated as of March 24, 1999, pursuant to which
Mindquake has agreed to design, develop and implement the Program on
behalf of the Vendor and the lease agreements (collectively the
"Leases") for hardware and software, used by Mindquake in carrying
out such duties, between the Vendor and Newcourt Financial Ltd. (lease
numbers 546493, 546495 & 547559) and between the Vendor and Copelco
Capital Ltd. (lease numbers 0853240 & 0877320);"
3. Section 2.2 of the Agreement shall be deleted and replaced with the
following:
"The total purchase price payable for the Work shall be the sum of
Seven Hundred and Twenty-two Thousand ($722,000.00) Dollars and the costs, if
any, incurred by the Vendor pursuant to Section 4.1 (the "Purchase Price"), such
sum to be paid by the Purchaser to the Vendor by way of cash, certified cheque
or bank draft as follows:
(a) $2,000.00 upon Closing or within two Business Days following the
execution and delivery of this Agreement, whichever occurs first;
(b) amounts paid to the Vendor from time to time as a result of licenses
of the Program obtained by the Purchaser, if any, as provided for in
Section 4.9; and
(c) the balance of the Purchase Price upon Closing."
4. Section 4.1 of the Agreement shall be modified by adding the following
after the first paragraph thereof:
"The Vendor may, at its option, engage Mindquake or others to improve
or enhance the Work, including customisation for licensees, beyond that
specified in the Development Agreement, to engage third parties to provide a
standard form of license agreement and/or beta test agreement or to engage third
parties to copyright the Program and the cost of any of the foregoing shall be
included in the Purchase Price as provided in Section 2.2 provided that the
Purchaser has first approved any such costs in writing.
The Purchaser shall reimburse the Vendor monthly for all amounts due
under the Leases from and after August 10, 1999 until the Closing Date at which
time the Leases shall be assigned to the Purchaser by the Vendor."
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5. Section 4.6 of the Agreement shall be modified by adding the following
after the first paragraph thereof:
"The Purchaser shall from time to time advise the Vendor of its
progress in raising funds and shall forthwith advise the Vendor in writing as
soon as the Purchaser has obtained a commitment for equity or debt financing
sufficient to meet the Purchase Price. The parties shall thereafter co-operate
to complete the transaction contemplated by this agreement as soon as reasonably
possible after the Purchaser has completed such equity or debt financing."
6. A new Section 4.9 shall be added to the Agreement immediately
following Section 4.8 as follows:
"4.9 Beta Testing and Licensing
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The Purchaser shall use its best efforts to obtain beta test partners
for the Program and to obtain commitments to license the Program. The Vendor
hereby authorises the Purchaser, as Licensor, to enter into license agreements
of the Program with third parities provided that:
(a) the Vendor has first approved in writing both the licensee and
the terms of the license agreement, which approval may be arbitrarily
withheld;
(b) the licensee is directed to pay all proceeds required to be made
by it under the license directly to the Vendor (net of any bona fide
third party costs incurred by the Purchaser in obtaining such licenses
which have been previously approved by the Vendor) which proceeds
shall be credited towards the Purchase Price pursuant to Section 3(b);
and
(c) In the event that the Purchaser is unable to complete the
transaction contemplated by this Agreement, the Purchaser shall,
immediately upon the termination of this Agreement, assign to the
Vendor the licenses that the Purchaser entered into under this Section
4.9, if any."
7. Section 6.1(e) and Section 7.1(e) of the Agreement shall both be
deleted and both be replaced with the following:
"The Purchaser shall have completed an equity or debt financing and
shall have raised sufficient funds, on or before December 29, 1999 or
such later date as may be determined under the provisions of Section
6.2, to meet the Purchase Price; and"
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8. Section 6.2 of the Agreement shall be deleted and be replaced with the
following:
"The Purchaser may, upon provision of prior written notice to the
Vendor, given at least one Business Day prior to the date provided for
satisfaction of the condition contained in Section 6.1(e) and Section 7.1(e),
together with evidence satisfactory to the Vendor, acting reasonably, that the
Purchaser is making progress towards the completion of the conditions contained
in Section 6.1(e) and Section 7.1(e), extend the Closing Date, together with the
date specified in Section 6.1(e) and Section 7.1(e), all by the same period of
up to four weeks. The Purchaser may not, without the written consent of the
Vendor, exercise the rights of extension provided in this Section 6.2 more than
three times, and for each extension, shall provide such satisfactory evidence."
9. Time shall continue to be of the essence of the Agreement.
10. All other terms and conditions of the Agreement shall remain
unchanged.
IN WITNESS WHEREOF the parties have duly executed this Second Amending
Agreement as of the day first above written.
MAC MULTIMEDIA ACCELERATOR CORP.
Per:______________________________
Authorised Signatory
Per:______________________________
Authorised Signatory
XXX-XXX.XXX
Per:______________________________
Authorised Signatory
Per:______________________________
Authorised Signatory
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