Exhibit 10.11
PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT is made and entered into on this the 1st day of
March, 2000, by and between INTERCAPITAL GLOBAL FUND, LTD., an Antigua and
Barbados corporation, having its principal place of Business at One High Street,
St. Xxxx, Antigua (hereinafter referred to as Seller) and XXXXXXXXX.XXX INC., a
publicly held Canadian company, having its principal place of business at #0
Xxxxxxx Xxxxx Xxx, Xxxxxxx, Xxxxxxx, Xxxxxx X0X0X0, (hereinafter referred to as
"Buyer").
Article 1. Purchase and Sale
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In consideration of the mutual promises and conditions herein contained,
Seller hereby agrees to sell to Buyer, and Buyer agrees to purchase from Seller
on the terms, conditions, warranties and representations set forth in this
Agreement, one half (50%) of the business including Domain names and all assets
tangible or intangible owned by Seller under the names of XXXXXXXXXX.XXX,
XXXXXXXXXX.XXX and XXXXXXXXXX.XXX and located at 0000 Xxxxx Xxxxxx, Xxxxx #000,
Xxxxxxxx, Xxxxxx, Xxxxxx X0X0X0 (hereinafter referred to as "the Business") and
all customer deposits on hand and in those names at the time of the signing of
this Agreement.
Article 2. Amount of Purchase
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The total purchase price to be paid by Buyer to Seller for one half
(50%) of all the properties, assets, rights and customer deposits of the
Business described in this Agreement (hereinafter referred to as the "Purchase
Price"), shall be TWO MILLION DOLLARS ($2,000,000.00) in United States
currency.
Article 3. Payment of Purchase Price
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The Total Purchase Price shall be paid in United States dollars as
follows:
(a) $100,000.00 in cash, check or the equivalent, shall be paid when
this Agreement is signed
(b) $400,000.00 shall be paid by delivery from Buyer to Seller of a
Five (5) year Promissory Note executed in favor of Seller by Buyer which shall
bear interest from the date of its execution at 9% per year and principal and
interest shall be payable in equal quarterly installments beginning on or before
the 1st day of July, 2000, in the quarterly amount of $24,910.02 each.
(c) $1,500,000.00 shall be paid by delivery from Buyer to Seller of
15,000,000 shares of common stock in Xxxxxxxxx.xxx Inc. with a strike price of
0.10 cents per share U.S. The stock issued to Seller shall be that stock that is
issued after stock reversals are made by Buyer.
Article 4. Closing
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At the closing the seller shall:
(a) execute all documents necessary to finalize this Agreement
and transfer all customer deposits on hand at the time of
the closing.
At the closing the Buyer shall:
(a) Pay Seller $100,000.00 in cash, check or the equivalent,
(b) Execute the note to Seller for $400,000.00 U.S. dollars under
the terms and conditions set forth hereinabove,
(c) Issue 15,000,000 shares of Xxxxxxxxx.xxx Inc. common stock to
Seller, and
(d) Execute all other documents necessary to finalize this
Agreement.
Article 5. Representation, Warranties, Covenants
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and Agreements by Seller
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Seller hereby agrees and warrants and represents to Buyer that:
(a) Seller is the lawful owner of the Business and has good right
and due authorization to sell the same. At the time of signing
this Agreement Seller neither knows nor has reason to know of
the existence of any outstanding claim or title, or interest, or
lien in, to or on the Business except as shown on the financial
records of the Business;
(b) Seller owes no obligations and has contracted no liabilities
effecting the Business or which might affect to consummation of
the purchase and sale described in this Agreement that have not
been expressly disclosed to Buyer;
(c) No litigation, actions or proceedings legal, equitable,
administrative, including but not limited to lawsuits, claims or
disputes are pending or threatened which might affect the
Business, the assets being purchased, or the consummation of the
purchase and sale described in this Agreement; and
(d) Seller agrees to indemnify and hold Buyer harmless from and all
claims, causes of actions, damages, or debits, including legal
fees, resulting from any actions, occurrences or events
occurring prior to the Closing.
Article 6. Nonassumption of liabilities
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Unless otherwise expressly provided for herein, the liabilities and
obligations incurred by Seller prior to the Closing are not being assumed by
Buyer but continue as liabilities and obligations of Seller and shall be solely
paid by Seller.
In the event Buyer is required to pay after the Closing any valid debt
or expense incurred by Seller prior to the Closing, Buyer shall have the right
to offset any such debt or expense actually paid by it, which is the valid and
legal obligation of the Seller, against any payment owed to Seller by Buyer.
Article 7. Default
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After execution of this Agreement by the parties, default shall be the
failure of either party to perform their respective obligations and duties
and/or shall be a breach of a warranty or covenant herein.
In the event of default of either party, Seller and Buyer shall have the
right to xxx for specific performance and/or xxx for damages in addition to any
other relief provided in this Agreement. In a suit for default, reasonable
attorney's fees shall be recoverable by the prevailing party.
Article 8. General and Administrative Provisions
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Parties Bound. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto and their respective successors and permitted
assigns.
Assignment. The Seller shall have no right to transfer or assign its
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interest in this Agreement without the prior written consent of the Buyer.
Corporate Authority. Each party hereto represents unto the other that
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this Agreement, the transaction contemplated herein, and the execution and
delivery hereof, have been duly authorized by all necessary corporate
proceedings and actions, including without limitation, the action on the part of
the directors. Certified copies of such corporate or other resolutions
authorizing this transaction shall upon request be delivered at the closing.
Applicable Law. This Agreement shall be construed, interpreted and
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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 hereto, irrevocably
and unconditionally submits to the non-exclusive jurisdiction of the courts of
such province and all courts competent to hear appeals therefrom.
Severability. If any provision of this Agreement is determined by a
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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.
Amendment and Waivers. No amendment or waiver of any provision of this
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Agreement shall be binding on any party unless consented to in writing by each
party hereto. No waiver of any provision of this Agreement shall constitute a
waiver of any other provision, nor shall any waiver constitute a continuing
waiver unless otherwise expressly provided.
Entire Agreement. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter hereof and supersedes all
prior agreements, understandings, negotiations and discussions, whether written
or oral. There are no conditions, covenants, agreements, representations,
warranties or other provisions, express or implied, collateral, statutory or
other wise, relating to the subject matter hereof except as herein provided.
Notices. All notices or other communications required or permitted to be
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given pursuant to this Agreement shall be in writing and shall be delivered in
person, transmitted by telecopy or similar means or recorded electronic
communication or sent by registered mail, charges prepaid, and addressed as
follows:
If to Seller: Intercapital Global Fund, Ltd.
0000 Xxxxx Xxxxxx, Xxxxx #000
Xxxxxxxx, Xxxxxx X0X0X0
Attn: Xx. Xxxxx Xxxxxxxx, Xx., Chairman
If to Buyer: Xxxxxxxxx.xxx Inc.
#0 Xxxxxxx Xxxxx Xxx
Xxxxxxx, Xxxxxxx X0X0X0
Xxxxxx
Attn: Mr. John Bentivoilo, Senior Vice
President and Director
A party may change its address for notice by giving notice of such
change to the other party in writing.
This Agreement may be executed in counterparts, each of which shall
constitute an original and all of which taken together shall constitute one and
the same instrument.
IN WITNESS WHEREOF this Agreement has been executed by the parties.
INTERCAPITAL GLOBAL FUND, LTD.
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Xxxxx Xxxxxxxx, Xx.
Chairman
XXXXXXXXX.XXX INC
/s/ Xxxx Bentivoilo
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Xxxx Bentivoilo
Senior Vice President and Director
PROMISSORY NOTE
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Date: March 1, 2000
Maker: Xxxxxxxxx.xxx Inc.
Mailing address: #0 Xxxxxxx Xxxxx Xxx, Xxxxxxx, Xxxxxxx, X0X0X0, Xxxxxx
Payee: Intercapital Global Fund, Ltd.
Mailing address: One High Street, St. Xxxx, Antigua
Place for Payment: 0000 Xxxxx Xxxxxx, Xxxxx #000, Xxxxxxxx Xxxxxx, X0X0X0,
Xxxxxx
Principal Amount: FOUR HUNDRED THOUSAND AND NO/100 ($400,000.00)
Annual Interest Rate on Unpaid Principal from Date: Nine Percent (9%)
Terms of Payment (principal and interest): In equal quarterly installments of
$24,910.02 each beginning on July 1, 2000 and continuing thereafter until paid.
Maker promises to pay to the order of Payee at the place for payment and
according to the terms of payment the principal amount plus interest at the rate
stated above. All unpaid amounts shall be due by the final scheduled payment
date. This note may be prepaid, in whole or in part, at any time without
penalty.
If Maker defaults in the payment of this note, and the default continues
after Payee gives Maker notice of the default and the time within which it must
be cured, as may be required by law or by written agreement, then Payee may
declare the unpaid principal balance on this note immediately due. Maker waives
all demands for payment, presentations for payment, notices of intention to
accelerate maturity, notices of acceleration of maturity, protests, and notices
of protest, to the extent permitted by law.
If this note is given to an attorney for collection, or if suit is
brought for collection, or if it is collected through probate, bankruptcy, or
other judicial proceeding, then Maker shall pay Payee all costs of collection,
including reasonable attorney's fees and court costs, in addition to other
amounts due. Reasonable attorney's fees shall be 10% of all amounts due unless
either party pleads otherwise.
Interest on the debt evidenced by this note shall not exceed the maximum
amount of nonusurious interest that may be contracted for, taken, reserved,
charged, or received under law. This provision overrides other provisions in
this and all other instruments concerning the debt.
When the context requires, singular nouns and pronouns include the
plural.
Xxxxxxxxx.xxx Inc.
By /s/ [ILLEGIBLE]
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Senior Vice President and Director
Maker
PROMISSORY NOTE
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Date: March 1, 2000
Maker: Xxxxxxxxx.xxx Inc.
Mailing address: #0 Xxxxxxx Xxxxx Xxx, Xxxxxxx, Xxxxxxx, X0X0X0, Xxxxxx
Payee: 1/st/ American Mutual Funds, Inc.
Mailing address: 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxxxx 00000
Place for Payment: 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxxxx 00000
Principal Amount: ONE HUNDRED THOUSAND AND NO/100 ($100,000.00)
Annual Interest Rate on Unpaid Principal from Date: Nine Percent (9%)
Terms of Payment (principal and interest): Due on demand
Maker promises to pay to the order of Payee at the place for payment and
according to the terms of payment the principal amount plus interest at the rate
stated above. All unpaid amounts shall be due by the final scheduled payment
date. This note may be prepaid, in whole or in part, at any time without
penalty.
If Maker defaults in the payment of this note, and the default continues
after Payee gives Maker notice of the default and the time within which it must
be cured, as may be required by law or by written agreement, then Payee may
declare the unpaid principal balance on this note immediately due. Maker waives
all demands for payment, presentations for payment, notices of intention to
accelerate maturity, notices of acceleration of maturity, protests, and notices
of protest, to the extent permitted by law.
If this note is given to an attorney for collection, or if suit is
brought for collection, or if it is collected through probate, bankruptcy, or
other judicial proceeding, then Maker shall pay Payee all costs of collection,
including reasonable attorney's fees and court costs, in addition to other
amounts due. Reasonable attorney's fees shall be 10% of all amounts due unless
either party pleads otherwise.
Interest on the debt evidenced by this note shall not exceed the maximum
amount of nonusurious interest that may be contracted for, taken, reserved,
charged, or received under law. This provision overrides other provisions in
this and all other instruments concerning the debt.
When the context requires, singular nouns and pronouns include the
plural.
Xxxxxxxxx.xxx Inc.
By /s/ [ILLEGIBLE]
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Senior Vice President and Director
Maker
Intercapital Global Fund, Ltd.
Software Support Maintenance Agreement
THIS AGREEMENT (hereinafter Agreement), made and entered into by and between
Intercapital Global Fund, Ltd., having its principal place of business at One
High Street, St. Xxxx, Antigua (hereinafter referred to as IGF); and
Xxxxxxxxx.Xxx Inc. having its principal place of business at: #0 Xxxxxxx
Xxxxx Xxx, Xxxxxxx Xxxxxxx X0X0X0. Hereinafter referred to as Customer).
1. DEFINITIONS
For the purpose of this Agreement, the following terms shall have the meanings
ascribed to them.
EFFECTIVE DATE. The term Effective Date shall mean first date of signing of this
Agreement.
IMPROVEMENTS. Improvements to the Licensed Software are designated by a change
to the products release indicator (up to next whole number release).
Improvements generally comprise maintenance modifications or minor enhancements
to functionality. Improvements exclude versions. Versions are comprised of
significant enhancements to functionality. If there is any issue whether a new
release is an Improvement or a version, it shall be within IGF's sole discretion
to much such determination.
LICENSED SOFTWARE. The term Licensed Software shall mean the computer program(s)
as detailed in Attachment A. The Licensed Software shall include Improvements as
defined above. Licensed Software will be distributed in Object Code only format.
OBJECT CODE. Object Code shall exist solely of code, substantially or entirely
in binary form, which is directly executable by a computer after suitable
processing, but without the intervening steps of compilation or assembly. Object
Code shall not include any Source Code.
TECHNICAL INFORMATION. The term Technical Information shall mean the material
supplied by IGF in printed form or on magnetic media that supports the Licensed
Software and describes its installation, operation, or maintenance.
USER. The entity or persons, including but not limited to employees or
contractors who are licensed to run the Licensed Software.
II. MAINTENANCE AND SUPPORT SERVICES
Standard Software Maintenance Services shall include: Telephone
maintenance support of the Licensed Software. Said maintenance and support
shall be available Monday through Friday, 8:00AM - 6:00PM EST, exclusive of
holidays at (000) 000-0000. The Customer Support Center number after 6:00PM is
000-000-0000.
. Improvements that are made generally available on the current version.
. Technical Information updates to support Improvements.
. Program upgrades.
. New games as they are developed.
. A thirty (30) day warranty period on the media.
. PC Anywhere is required for Support and Maintenance services.
. No other software can reside on the IS or Database servers at anytime.
If a Customer from time to time desires to obtain maintenance and
support services other than those specified above, or desires to obtain services
to accomplish modifications or enhancements to the Licensed Software not covered
by this Agreement, Customer may notify IGF of the services desired and, such
services shall be provided at the then current fees.
ADDITIONAL SERVICES
Additional services compromising a total turnkey solution shall include:
. Installation and hosting of the servers in Dominican Republic.
. Equipment Maintenance.
. Communication lines with sufficient bandwidth.
. Gaming License in Dominican Republic.
. System Management and Administration
. 24/7/365 Call center from Canada
. Online Customer service
. Merchant Banking Services and Administration
through DMS.
III. INTELLECTUAL PROPERTY
Any Improvements in the form of new or partial programs or
documentation, Technical Information and maintenance and support information,
that may be provided during the terms of this Agreement by IGF shall remain
proprietary to IGF and title thereto remains with IGF. All applicable rights to
patents, copyrights, trademarks, trade secrets and other intellectual or
proprietary rights and interests in the Licensed Software and Improvements
thereto by IGF are and shall remain with IGF. The Customer shall not sell,
transfer, publish, disclose, display, or otherwise make available the Licensed
Software or Improvements thereto or copies thereof to others, with exception of
the access to the Client. Customer agrees to secure and protect each program,
software product, and copies thereof in a xxxxx consistent with the maintenance
of IGF's rights therein and to take
appropriate action by instruction or agreement with its employees who are
permitted access to each program or software product to satisfy its obligations
hereunder. All copies of the Licensed Software, or Improvements, including
translations, compilations, partial copies with modifications, and updated works
by IGF are the property of IGF.
IV. WARRANTIES
IGF warrants that the Licensed Software and Improvements thereto shall operate
in accordance with the provided Technical Information.
IGF warrants that sole title to the IGF copyright of Licensed Software and
Improvements resides in IGF, and that IGF has full power and authority to enter
into and carry out this Agreement.
IGF shall use its best efforts to promptly correct program errors when such
errors are reported to IGF. IGF will use its best efforts to provide
Improvements to Licensed Software if necessary to repair the error and
eliminate adverse effects on the Customer of the non-conformity.
V. LIMITATIONS AND EXCLUSIONS OF WARRANTIES
1. IGF's warranties do not extend to operation of any hardware configuration,
nor in any operating environment (e.g., operating system)
2. IGF's warranties do not apply to:
a) Any copy of the Licensed Software that is re-engineered by any person other
than IGF; nor
b) Malfunctions resulting from use of the Licensed Software other than in
accordance with the most current Technical Information provided by IGF; nor
c) Bugs or irregularities caused by defects, problems, or failures of hardware
or software not provided by IGF; nor
d) Bugs or irregularities caused by gross negligence of Customer or any other
person except IGF.
3. EXCEPT FOR IGF'S WARRANTY THAT THE LICENSED SOFTWARE WILL OPERATE AS DEFINED
IN THE TECHNICAL INFORMATION, IGF EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE
FUNCTIONS PERFORMED BY THE LICENSED SOFTWARE WILL MEET ADDITIONAL CUSTOMER
REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED FOR USE BY
CUSTOMER.
THE EXPRESS WARRANTIES AND EXPRESS REPRESENTATIONS SET FORTH IN THIS
AGREEMENT ARE IN LIEU OF, AND IGF DISCLAIMS, ANY AND ALL OTHER WARRANTIES,
CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH
RESPECT TO THE SOFTWARE SUPPORT MAINTENANCE AGREEMENT, INCLUDING ANY AND ALL
IMPLIED WARRANTIES.
VI. LIMITATION OF LIABILITY
1. IGF EXPRESSLY DISCLAIMS, AND CUSTOMER AGREES NOT TO ASSERT. ANY LIABILITY
FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING EITHER DIRECTLY OR
INDIRECTLY FROM OPERATION OF THE LICENSED SOFTWARE, INCLUDING BUT NOT
LIMITED TO LIABILITY FOR LOST OR CORRUPTED DATA OF CUSTOMER. IN NO EVENT
SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL
DAMAGES ARISING FROM THIS AGREEMENT OR USE OF LICENSED SOFTWARE.
2. IN NO EVENT SHALL IGF BE LIABLE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA
OR USE, LOST PROFITS OR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, IGF'S ENTIRE
LIABILITY TO CUSTOMER FOR DAMAGES OR LOSSES SHALL NOT EXCEED THE AMOUNT PAID
BY CUSTOMER UNDER THE AGREEMENT PRIOR TO SUCH DAMAGE OR LOSS UP TO A MAXIMUM
OF THE THEN CURRENT APPLICABLE YEARLY MAINTENANCE FEES FOR THE SOFTWARE.
VII. TERM AND TERMINATION
1. Except as otherwise provided herein, this Agreement shall commence on the
Effective Date and continue for a period of 12 months. Automatic renewal is
assumed.
2. Upon termination of this Agreement:
a) Neither party shall have any further obligation to perform any duties
hereunder.
b) If this Agreement is terminated by IGF prior to the end of any year for which
an annual fee for maintenance and support has been paid by Customer, IGF
shall refund to Customer a pro rata portion of said annual fee corresponding
to the unexpired portion of that year.
VII. FEES
1. Payments shall be made according to the terms and conditions defined in
Attachment A.
2. The fees stated in Attachment A are only in effect for the initial term of
the Agreement. Standard Software Maintenance Services fees may vary from year
to year.
3. Unless otherwise specified, payment for Maintenance and Support Services
shall begin thirty (30) days after installation and continue to be due every
thirty (30) days from that date specified. If Customer fails to make payment
on the date such payment is due, written notice shall be sent to the
Customer. Customer shall have ten (10) days
in which to make payment, Following this grace period, IGF many
discontinue services until Customer has remedied the delinquency. Any
past due payments shall be subject to late fees equal to 1.5% per month.
IX MISCELLANEOUS PROVISIONS
ASSIGNMENT. Neither this Agreement nor any interest herein may be assigned, in
whole or in part, by Customer without prior written consent of IGP, except that,
without securing such prior consent, Customer may assign this Agreement to any
acquirer of substantial all of the business of such party to which the subject
matter hereof relates, or to any affiliate or successor must assume in writing
all obligations herein.
ESCROW. IGF will escrow source code at the Customer's expense for service only,
not to enhance or develop the licensed product in the event IGF should go out of
business.
CONSTRUCTION, APPLICABLE LAW AND PLACE OF PERFORMANCE. This Agreement shall be
deemed to be mad and entered into IGF should go out of business.
NOTICE. All notices, statement, and reports required or permitted by this
Agreement shall be in writing and deemed to have been effectively given and
received five (5) days after the date of dispatch by certified or registered
mail, postage prepaid; or other courier service; and in the case of teleicopied
notice on the date that confirmation is sent by the receiving party to the
sending party addressed as follows:
WAIVER. The waiver of a default hereunder by one party may be effected only by
written acknowledgement signed by the other party and shall constitute a waiver
of any other default. The failure of either party to enforce any right or remedy
for any one default shall not be deemed a waiver of said right or remedy if the
default persists of if future defaults are committed, nor shall such failure in
any way affect the validity of this Agreement of any part hereof.
INDEPENDENT PARTIES. Nothing in this Agreement shall be deemed to constitute,
create, give effect to or otherwise recognize a partnership, joint venture or
formal business entity of any kind between the parties hereto and the rights and
obligations of the parties shall be limited to those expressly set forth herein.
ENTIRE UNDERSTANDING. This written instrument constitutes the entire
understanding and agreement between the parties with respect to the subject
matter hereof, integrates all prior understandings and agreements with respect
thereto, and shall not be varied, amended, or supplemented except in writing of
event or subsequent date, executed by the parties.
IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT as of 23
RD day of February 2000.
Intercapital Global Fund, Ltd. Xxxxxxxxx.Xxx Inc.
Signature: /s/Xxxxx X. Xxxxxxxx Signature: /s/Xxxx Bentivaglio
Name: Xxxxx X. Xxxxxxxx Name: Xxxx Bentivaglio
Title: Chairman Title: Senior Vice President & Director
Date: 2 Mar 2000 Date: March 21, 2000
Initials: /s/ [ILLEGIBLE]
ATTACHMENT A
FEES FOR SERVICES:
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| Description | Individual Price |
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| Maintenance and Support Services as | $15,000.00 per month |
| outlined in section II of this agreement | |
| | |
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