Exhibit 10.3
PLAYSTAR WYOMING HOLDING CORP.
REGULATION S SUBSCRIPTION AGREEMENT
Playstar Wyoming Holding Corp.
P.O. Box W1584
Wood's Centre
St John's, Antigua
West Indies
Gentlemen:
1. Application. The undersigned, intending to be legally
bound, hereby agrees to purchase and subscribe for a Convertible Promissory Note
(the "CONVERTIBLE NOTE") of Playstar Wyoming Holding Corp., an Antigua
corporation (the "COMPANY"), in the principal amount of One Hundred Thousand
U.S. Dollars ($100,000). The terms of the Convertible Note, including the terms
on which the Convertible Note shall automatically convert into fully paid and
non-assessable shares of the Company's common stock, par value $.0001 per share,
(the "CONVERSION SHARES") immediately upon the approval by the stockholders of
the Company of an amendment to the Company's Articles of Incorporation
increasing the authorized number of shares of common stock to an amount
necessary to permit issuance of the Conversion Shares, are set forth in the
Convertible Note substantially in the form attached hereto as Exhibit A. The
Convertible Note and the Conversion Shares are sometimes referred to herein as
the "SECURITIES." The undersigned understands that this subscription is and
shall be irrevocable unless the Company for any reason rejects this
subscription.
2. Representations and Warranties of the Subscriber. The
undersigned represents and warrants to the Company as follows:
(a) The undersigned, in making the decision to
purchase the Securities, has relied upon independent investigations
made by him or it and his or its representatives, if any. The
undersigned and/or his or its advisors have had a reasonable
opportunity to ask questions of and receive answers from Company
concerning the Securities.
(b) The undersigned has been supplied with or has
sufficient access to all information, including financial statements
and other financial information of the Company, and has been afforded
with an opportunity to ask questions of and receive answers concerning
information to which a reasonable investor would attach significance in
making investment decisions, so that as a reasonable investor the
undersigned has been able to make the undersigned's decision to
purchase the Securities.
(c) The undersigned is able to bear the substantial
economic risks of an investment in the Securities for an indefinite
period of time, has no need for liquidity in such investment, has made
commitments to investments that are not readily marketable
which are reasonable in relation to the undersigned's net worth and, at
the present time, could afford a complete loss of such investment.
(d) The undersigned has such knowledge and experience
in financial, tax and business matters so as to enable him or it to
utilize the information made available to the undersigned in connection
with the sale of the Securities to evaluate the merits and risks of an
investment in the Securities and to make an informed investment
decision with respect thereto.
(e) The undersigned understands that the Securities
are being sold in reliance on an exemption from the registration
requirements of federal and state securities laws under Regulation S
promulgated under the U.S. Securities Act of 1993 (the "SECURITIES
ACT") and that the Company is relying upon the truth and accuracy of
the representations, warranties, agreements, acknowledgments and
understandings of the undersigned set forth herein in order to
determine the applicability of such exemptions and the suitability of
the undersigned to purchase the Securities. The representations,
warranties and agreements contained herein are true and correct as of
the date hereof and may be relied upon by the Company, and the
undersigned will notify the Company immediately of any adverse change
in any such representations and warranties which may occur prior to the
acceptance of this Agreement by the Company and will promptly send the
Company written confirmation thereof if requested by the Company. The
representations, warranties and agreements of the undersigned contained
herein shall survive the execution and delivery of this Agreement and
the purchase of the Securities.
(f) Neither the undersigned nor any person or entity
for whom the undersigned is acting as fiduciary is a U.S. person. A
U.S. person means any one of the following:
(i) any natural person resident in the
United States of America;
(ii) any partnership or corporation
organized or incorporated under the laws of the United States of
America;
(iii) any estate of which any executor or
administrator is a U.S. person;
(iv) any trust of which any trustee is a
U.S. person;
(v) any agency or branch of a foreign entity
located in the United States of America;
(vi) any non-discretionary account or
similar account (other than an estate or trust) held by a dealer or
other fiduciary for the benefit or account of a U.S. person;
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(vii) any discretionary account or similar
account (other than an estate or trust) held by a dealer or other
fiduciary organized, incorporated or (if an individual) resident in the
United States of America; and
(viii) any partnership or corporation if:
(A) organized or incorporated under
the laws of any foreign jurisdiction; and
(B) formed by a U.S. person
principally for the purpose of investing in
securities not registered under the Securities Act,
unless it is organized or incorporated, and owned, by
accredited investors (as defined in Rule 501(a) under
the Securities Act) who are not natural persons,
estates or trusts.
(g) ALL OFFERS AND SALES OF THE SECURITIES PRIOR TO
THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD AS DEFINED IN RULE
902 SHALL ONLY BE MADE IN COMPLIANCE WITH THE SAFE HARBOR CONTAINED IN
REGULATION S, PURSUANT TO REGISTRATION OF SECURITIES UNDER THE
SECURITIES ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT, AND ALL OFFERS AND SALES AFTER THE DISTRIBUTION
COMPLIANCE PERIOD SHALL BE MADE ONLY PURSUANT TO SUCH A REGISTRATION OR
TO SUCH EXEMPTION FROM REGISTRATION.
(h) ALL DOCUMENTS RECEIVED BY THE UNDERSIGNED INCLUDE
STATEMENTS TO THE EFFECT THAT THE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT AND MAY NOT BE OFFERED OR SOLD IN THE UNITED
STATES OR TO U.S. PERSONS OR FOR THE ACCOUNT OR BENEFIT OF A U.S.
PERSON (OTHER THAN DISTRIBUTORS AS DEFINED IN REGULATION S) DURING THE
DISTRIBUTION COMPLIANCE PERIOD AS DEFINED IN RULE 902 UNLESS THE
SECURITIES ARE REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM
THE REGISTRATION REQUIREMENTS IS AVAILABLE.
(i) IN THE VIEW OF THE SEC, THE STATUTORY BASIS FOR
THE EXEMPTION CLAIMED FOR THIS TRANSACTION WOULD NOT BE PRESENT IF THE
OFFERING OF SHARES, ALTHOUGH IN TECHNICAL COMPLIANCE WITH REGULATION S,
IS PART OF A PLAN OR SCHEME TO EVADE THE REGISTRATION PROVISIONS OF THE
SECURITIES ACT. THE UNDERSIGNED IS ACQUIRING THE SECURITIES FOR
INVESTMENT PURPOSES AND HAS NO PRESENT INTENTION TO SELL THE SECURITIES
IN THE UNITED STATES OF AMERICA TO A U.S. PERSON OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON.
(j) The undersigned agrees to the placement of a
legend to the foregoing effect on any document evidencing the
Securities.
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(k) Neither the undersigned nor any of his or its
affiliates or agents will, directly or indirectly, maintain any short
position in the Securities or any other securities of the Company for
so long as any of the Securities are owned by the undersigned.
3. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the undersigned as follows:
(a) The Company is an international business
corporation duly organized, validly existing and in good standing under
the laws of Antigua and has all requisite corporate power and authority
to carry on its business as now conducted and as proposed to be
conducted.
(b) The Company has previously furnished to the
undersigned copies of the Company's Report on Form 20-F for the fiscal
year ended June 30, 1999 made pursuant to the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT").
(c) All corporate action on the part of the Company,
its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Subscription Agreement,
the performance of all obligations of the Company hereunder and the
authorization, issuance (or reservation for issuance) and delivery of
the Securities has been taken, and this Subscription Agreement
constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms.
(d) The Securities, when issued, sold and delivered
in accordance with the terms hereof for the consideration expressed
herein, will be validly issued, fully paid and nonassessable and, based
in part upon the accuracy of the representations of the undersigned in
this Subscription Agreement, will be issued in compliance with all
applicable United States federal and state securities laws.
(e) The execution and delivery of this Subscription
Agreement and the consummation of the transactions contemplated hereby,
including the issuance of the Securities, do not and will not conflict
with or result in a breach by the Company of any of the terms or
provisions of, or constitute a default under, the Certificate of
Incorporation or By-Laws of the Company, or any indenture, mortgage,
deed of trust or other material instrument to which the Company is a
party or by which it or any of its properties or assets are bound, or
any applicable decree, judgment or order of any court, federal or state
regulatory body, administrative agency or other governmental body
having jurisdiction over the Company or any of its properties or
assets.
4. Registration.
(a) Definitions. The following definitions shall
apply with respect to a registration (a "REGISTRATION") pursuant to
this Section 4:
(i) The term "Public Offering" shall mean an
underwritten public offering of equity securities of the
Company pursuant to an effective
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registration statement under the Securities Act covering the
offer and sale of equity securities of such entity to the
public.
(ii) The term "Registrable Securities" shall
mean the Securities. Registrable Securities shall cease to be
Registrable Securities when they may be sold under Rule 144(k)
and all requisite steps have been taken to remove any legends
or restrictions on transfer with respect to such Registrable
Securities.
(iii) The term "Registration Statement"
shall mean any registration statement of the Company that
covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the prospectus
included therein, any amendment or supplement thereof,
including post-effective amendments, and all exhibits and all
material incorporated by reference in such Registration
Statement.
(b) Agreement to Register.
(i) As soon as reasonably practicable after
the date hereof, the Company shall prepare and file with the
SEC a Registration Statement covering the resale of the
Securities (the "REGISTRABLE SECURITIES") and use its best
efforts to cause such Registration Statement to become
effective within 120 days therefrom.
(ii) With respect to a Registration
Statement other than a Registration Statement on Form S-4, if
the holders of Registrable Securities desire to distribute the
Registrable Securities by means of an underwriting they shall
so advise the Company and shall select an underwriter
reasonably acceptable to the Company. The Company and all
holders of Registrable Securities proposing to distribute
their Registrable Securities through such underwriter shall
enter into an underwriting agreement in customary form with
the underwriter selected for such underwriting by the Company.
The Company shall not be required to effect more than two
underwritten Public Offering of Registrable Securities. The
Company shall pay all expenses, other than underwriters'
discounts and commissions and fees and disbursements of
experts and counsel retained by the undersigned, relating to
an underwriting of the Registrable Securities covered by the
first request, and the holder(s) of the Registrable Securities
requesting an underwriting shall pay all reasonable
registration expenses arising from the second such
underwriting.
(c) Provisions Applicable to Registration. The
following provisions shall apply, as applicable, in connection with the
undersigned's Registrable Securities to be included in the Registration
Statement pursuant to this Section 4:
(i) the undersigned, if reasonably requested
by the Company or by the underwriter with respect to any
Public Offering, shall agree not to sell, make any short sale
of, loan, grant any options for the purchase of, or otherwise
dispose of any Registrable Securities (other than those
included in the
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Registration) without the prior written consent of the Company
or such underwriters, as the case may be, for such period of
time (not to exceed one hundred eighty (180) days), from the
effective date of such Registration Statement, or the
commencement of the offering, as applicable, as may be
requested by the underwriters, provided that all other holders
of the class of securities being registered pursuant to the
Registration shall make the same agreements as those made by
the undersigned under this Section (c)(i);
(ii) the undersigned shall promptly provide
the Company with such non-confidential and non-proprietary
information as it shall reasonably request and that is
available to the undersigned in order to prepare the
Registration Statement;
(iii) subject to Section 4(b)(ii), all
reasonable and necessary expenses in connection with the
preparation of the Registration Statement, including, without
limitation, any and all legal, accounting and filing fees, but
not including fees and disbursements of experts and counsel
retained by the undersigned or underwriting discounts and
commissions to be paid by the undersigned, shall be borne by
the Company;
(iv) the Company shall use its best efforts
to effect such Registration permitting the sale of such
Registrable Securities in accordance with this Section (c),
and pursuant thereto, the Company shall as expeditiously as
possible:
(1) prepare and file with the SEC a
Registration Statement relating to the applicable
Registration on any appropriate form under the
Securities Act, which form shall be available for the
sale of the Registrable Securities in accordance with
the intended method or methods of distribution
thereof and use its best efforts to cause such
Registration Statement to become effective and keep
such Registration Statement effective in accordance
with Section (c)(iv)(2) below;
(2) prepare and file with the SEC
such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep
the Registration effective until all such Registrable
Securities are sold; cause the prospectus to be
supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule
424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by such
Registration Statement during the applicable period
in accordance with the intended method or methods of
distribution by the sellers thereof as set forth in
such Registration Statement or supplement to the
prospectus; provided, however that the Company may,
from time to time, request that the holders of the
Registrable Securities immediately discontinue the
disposition of the Registrable Securities if the
Company determines, in the good faith exercise of its
reasonable business
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judgment, that the offering and disposition of the
Registrable Securities could materially interfere
with bona fide financing, acquisition or other
material business plans of the Company or would
require disclosure of non-public information, the
premature disclosure of which could materially and
adversely affect the Company (it being acknowledged
that the Company is not required to disclose in such
request any such transaction, plan or non-public
information), so long as the Company promptly after
the disclosure of such transaction, plan or
non-public information complies with this Section
(c)(iv)(2);
(3) notify the undersigned and the
underwriter, if any, promptly, and (if requested by
any such person) confirm such advice in writing, (A)
when the prospectus or any prospectus supplement or
post-effective amendment has been filed, and, with
respect to the Registration Statement or any
post-effective amendment thereto, when the same has
become effective, (B) of any request by the SEC for
amendments or supplements to the Registration
Statement or the prospectus or for additional
information, (C) of the issuance by the SEC of any
stop order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose, (D) of the receipt by
the Company of any notification with respect to the
suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the
initiation of any proceedings for such purpose and
(E) subject to the proviso below, of the happening of
any event as a result of which the prospectus
included in such Registration Statement, as then in
effect, includes an untrue statement of a material
fact or omits to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading in light of the circumstances
then existing and, subject to Section (c)(iv)(2)
above, at the request of any such person, prepare and
furnish to such person a reasonable number of copies
of a supplement to or an amendment of such prospectus
as may be necessary so that, as thereafter delivered
to the purchasers of such shares, such prospectus
shall not include an untrue statement of a material
fact or omit to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading in light of the circumstances
then existing; provided, however, the Company need
not disclose the event if it otherwise has not
disclosed such event to the public;
(4) if requested by the underwriter
or the undersigned, promptly incorporate in a
prospectus supplement or post-effective amendment
such information as the underwriter and the
undersigned agree should be included therein relating
to the plan of distribution with respect to such
Registrable Securities, including, without
limitation, the purchase price being paid therefor by
such underwriters and with respect to any other terms
of the underwritten offering of the Registrable
Securities to be sold in such offering; and make all
required filings of such prospectus
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supplements or post-effective amendments as soon as
notified of the matters to be incorporated in such
prospectus supplements or post-effective amendments;
(5) deliver to the undersigned and
the underwriters, if any, without charge, as many
copies of the prospectus (including each preliminary
prospectus) in conformity with the requirement of the
Securities Act and any amendments or supplements
thereto as such persons may reasonably request and
such other documents as they may reasonably request
to facilitate the prior sale or other disposition of
such Registrable Securities;
(6) prior to any Public Offering of
Registrable Securities, register or qualify or
cooperate with the undersigned, or the underwriters,
if any, in connection with the registration or
qualification of such Registrable Securities for
offer and sale under the securities or blue sky laws
of such jurisdictions as the undersigned or
underwriters, if any, reasonably requests in writing
and do any and all other acts or things necessary or
advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered
by the Registration Statement; provided, however,
that the Company shall not be required to qualify to
do business in any jurisdiction where it is not then
so qualified or to take any action that would subject
it to general service of process in any such
jurisdiction where it is not then so subject or would
subject the Company to any tax in any such
jurisdiction where it is not then so subject; and
(7) with a view to making available
the benefits of certain rules and regulations of the
SEC which may at any time permit the sale of
Registrable Securities to the public without
registration, during such time as a public market
exists for its equity securities, the Company agrees
to:
a) make and keep public information
available, as those terms are understood and defined
in Rule 144 under the Securities Act, at all times
after the effective date of the first registration
under the Securities Act filed by the Company for an
offering of its equity securities to the general
public;
b) use its best efforts to file
with the SEC in a timely manner all reports and other
documents required of the Company under the
Securities Act and the Exchange Act (at any time
after it has become subject to such reporting
requirements); and
c) furnish to the undersigned
forthwith upon the undersigned's request a written
statement by the Company as to the Company's
compliance with the reporting requirements of said
Rule 144, and of the Securities Act and the Exchange
Act, a copy of the most recent
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annual or quarterly report of the Company and such
other reports and documents of the Company as the
undersigned may reasonably request in availing itself
of any rule or regulation of the SEC allowing a
holder to sell any such securities without
registration;
(v) Notwithstanding the provisions of this
Section 4 to the contrary, the Company:
(1) may require the undersigned to
furnish to the Company such information regarding the
distribution of such securities as the Company may
from time to time reasonably request in writing; and
(2) may require the undersigned to
covenant that the undersigned has not taken, and will
not take, directly or indirectly, any action
designed, or which might reasonably be expected, to
cause or result in, under the Exchange Act or
otherwise, or which has caused or resulted in,
stabilization or manipulation of the price of any
security of the Company to facilitate the sale or
resale of the Registrable Securities; and
(vi) the undersigned agrees by acquisition
of such Registrable Securities that, upon receipt of the
request referred to in the proviso of Section (c)(iv)(2) or of
any notice from the Company of the happening of any event of
the kind described in Section (c)(iv)(3) hereof (other than as
provided in Section (c)(iv)(3)(A) hereof), the undersigned
shall forthwith discontinue disposition of Registrable
Securities until it is advised in writing by the Company that
the use of the prospectus may be resumed, and has received
copies of any additional or supplemental documents or filings
that are incorporated by reference in the prospectus, and, if
so directed by the Company, the undersigned shall deliver to
the Company (at the Company's expense) all copies other than
permanent file copies then in the undersigned's possession, of
the prospectus covering such Registrable Securities current
prior to the time of receipt of such notice.
(d) Indemnification.
(i) In the event of a Registration or
qualification of any Registrable Securities under the
Securities Act pursuant to the provisions of this Section 4,
the Company shall indemnify and hold harmless the undersigned,
the officers and directors of the undersigned and each
director or officer of any person or entity who controls the
undersigned, each underwriter of such Registrable Securities
and each other person or entity who controls the undersigned
or such underwriter within the meaning of the Securities Act
(collectively, the "SUBSCRIBER INDEMNITEES"), from and against
any and all losses, claims, damages or liabilities, joint or
several, to which any of the Subscriber Indemnitees, joint or
several, may become subject under the Securities Act or the
applicable securities laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (x) any untrue
statement or alleged untrue statement of any material fact
contained in any
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Registration Statement under which such Registrable Securities
were registered or qualified under the Securities Act, or any
amendment or supplement thereto, any preliminary prospectus or
final prospectus contained therein, or any supplement thereto,
or any document prepared and/or furnished to the undersigned
incident to the registration or qualification on any
Registrable Securities, or (y) the omission or alleged
omission to state in any Registration Statement a material
fact required to be stated therein or necessary to make the
statements therein not misleading or, with respect to any
prospectus, necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading, or (z) any violation by the Company of the
Securities Act or state securities or "blue sky" laws
applicable to the Company and relating to action or inaction
required of the Company, in connection with such registration
or qualification under such state securities or "blue sky"
laws, and in each case shall reimburse the Subscriber
Indemnitees for any legal or other expenses reasonably
incurred by such Subscriber Indemnitees in connection with
investigating or defending any such loss, claim, damage or
liability (or action in respect thereof); provided, however,
that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability (or
action in respect thereof) arises out of or is based upon an
untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement in
reliance upon and in conformity with information furnished to
the Company through an instrument duly executed by such
Subscriber Indemnitees; and provided further, that the Company
shall not be liable in any such case to the extent that any
such loss, claim, damage or liability (or action in respect
thereof) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission in
such Registration Statement, which untrue statement or alleged
untrue statement or omission or alleged omission is completely
corrected in an amendment or supplement to the Registration
Statement and such Subscriber Indemnitee thereafter fails to
deliver or cause to be delivered such Registration Statement
as so amended or supplemented prior to or concurrently with
the sale of the Registrable Securities to the person asserting
such loss, claim, damage or liability (or actions in respect
thereof) or expense after the Company has furnished the
undersigned with the same.
(ii) In the event of the Registration or
qualification of any Registrable Securities under the
Securities Act pursuant to the provisions of this Section 4,
the undersigned shall severally and not jointly indemnify and
hold harmless the Company, each person who controls the
Company within the meaning of the Securities Act, each officer
and director of the Company and any other selling holder from
and against any losses, claims, damages or liabilities to
which the Company, such controlling person, any such officer
or director or any other selling holder may become subject
under the Securities Act or the applicable securities laws or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon (x) any untrue statement or alleged untrue
statement of any material fact contained in any Registration
Statement under which such Registrable Securities were
registered or
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qualified under the Securities Act, or any amendment or
supplement thereto, or (y) the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, which
untrue statement or alleged untrue statement or omission or
alleged omission was made therein in reliance upon and in
conformity with written information furnished to the Company
through an instrument duly executed by the undersigned
specifically for use in preparation thereof, and in each case
shall reimburse the Company, such controlling person, each
such officer or director and any other selling holder for any
legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss,
claim, damage or liability (or action in respect thereof).
(iii) Promptly after receipt by a person
entitled to indemnification under this Section (e) (an
"INDEMNIFIED PARTY") of notice of the commencement of any
action or claim relating to any Registration Statement filed
under the provisions of this Section 4 or as to which
indemnity may be sought hereunder, such Indemnified Party
shall, if a claim for indemnification hereunder in respect
thereof is to be made against any other party hereto (an
"INDEMNIFYING PARTY"), give written notice to such
Indemnifying Party of the commencement of such action or
claim, but the omission so to notify the Indemnifying Party
will not relieve such person from any liability that such
person may have to any Indemnified Party otherwise than
pursuant to the provisions of this Section (e) and shall also
not relieve the Indemnifying Party of such party's obligations
under this Section (e), except to the extent that the omission
so to notify results in the Indemnifying Party being damaged
solely as a result of the failure to give timely notice. In
case any such action is brought against an Indemnified Party,
and such party notifies an Indemnifying Party of the
commencement thereof, the Indemnifying Party shall be entitled
(at such party's own expense) to participate in and, to the
extent that the Indemnifying Party may wish, jointly with any
other Indemnifying Party similarly notified, to assume the
defense, with counsel satisfactory to such Indemnified Party,
of such action and/or to settle such action and, after notice
from the Indemnifying Party to such Indemnified Party of its
election so to assume the defense thereof, the Indemnifying
Party shall not be liable to such Indemnified Party for any
legal or other expenses subsequently incurred by such
Indemnified Party in connection with the defense thereof,
other than the reasonable cost of investigation; provided,
however, that no Indemnifying Party and no Indemnified Party
shall enter into any settlement agreement that would impose
any liability on such other party or parties without the prior
written consent of such other party or parties, unless such
other party or parties are fully indemnified to such party's
satisfaction, as the case may be, against any such liability.
(iv) If for any reason the indemnification
provided for in this Section 4 is unavailable to an
Indemnified Party or is insufficient to hold it harmless as
contemplated by this Section 4, then the Indemnifying Party
shall contribute to the amount paid or payable by the
Indemnified Party as a result of
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such loss, claim, damage, liability or action in such
proportion as is appropriate to reflect not only the relative
benefits received by the Indemnified Party and the
Indemnifying Party, but also the relative fault of the
Indemnified Party and the Indemnifying Party, as well as any
other relevant equitable considerations. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation.
5. Miscellaneous.
(a) This Subscription Agreement shall survive the
death or disability of the undersigned and shall be binding upon the
undersigned's heirs, executors, administrators, successors and
permitted assigns.
(b) This Subscription Agreement has been duly and
validly authorized, executed and delivered by the undersigned and
constitutes the valid, binding and enforceable agreement of the
undersigned. If this Subscription Agreement is being completed on
behalf of a corporation, partnership or trust, it has been completed
and executed by an authorized corporate officer, general partner or
trustee.
(c) This Subscription Agreement and the documents
referred to herein constitute the entire agreement between the parties
hereto with respect to the subject matter hereof and together supersede
all prior discussions or agreements in respect thereof.
(d) Within five (5) days after receipt of a written
request from the Company, the undersigned agrees to provide such
information, to execute and deliver such documents and to take, or
forbear from taking, such actions or provide such further assurances as
reasonably may be necessary to correct any errors in documentation, to
comply with any and all laws to which the Company is subject.
(e) The Company shall be notified immediately of any
change in any of the information contained above occurring prior to the
undersigned's purchase of the Securities or at any time thereafter for
so long as the undersigned is a holder of the Securities.
(f) This Subscription Agreement may be executed in
two or more counterparts, each of which shall be deemed to be an
original, but all of which shall constitute a single document.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned has executed this
Subscription Agreement dated as of November 21, 2000.
Subscription
Amount: $100,000 SELECT INVESTMENTS LTD.
By:_____________________________________
Name:
Title:
Social Security
or Taxpayer
Identification No.______________________
U.S. Citizen
__________Yes __________No
Residence or Business Address:
________________________________________
Street
________________________________________
City State Zip Code
Mailing Address (if different
from Residence or Business
Address):
________________________________________
Street
________________________________________
City State Zip Code
ACCEPTED AND AGREED TO:
PLAYSTAR WYOMING HOLDING CORP.
By:____________________________________
Name:__________________________________
Title:_________________________________
Dated as of: November 21, 2000
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