Exhibit 10.14
A G R E E M E N T
THIS AGREEMENT made as of the 1st day of August, 2000.
B E T W E E N :
SMP DATA INC., a corporation incorporated pursuant to the Laws
of the Island of Antigua, with its head office located in
St. John's Antigua;
(hereinafter called the "SMP")
PARTY OF THE FIRST PART
- and -
PLAYSTAR WYOMING HOLDING CORP., a corporation incorporated
pursuant to the Laws of the Island of Antigua, with its head
office located in St. John's Antigua;
- and -
(hereinafter called the "Playstar")
PARTY OF THE SECOND PART
WHEREAS Playstar operates a multi-entertainment internet casino,
sportsbook and pools;
AND WHEREAS SMP is the creator of software programs to be used in
internet pools;
NOW THEREFORE BE IT RESOLVED THAT, in consideration of the premises and
the mutual agreements and covenants herein contained (the adequacy of which
consideration as to each of the parties hereto is hereby mutually acknowledged),
the parties hereby covenant and agree as follows:
ARTICLE ONE
DEFINITIONS AND PRINCIPLES OF INTERPRETATION
1.0 Definitions - Whenever used in this Agreement, unless there is something in
the subject matter of context inconsistent therewith, the following words and
terms shall have the respective meanings ascribed to them as follows:
(a) Agreement - "Agreement" means this Agreement when fully
executed by all Parties and all instruments supplemental
hereto or in
amendment or confirmation hereof; "hereof", "hereto", and
"hereunder" and similar expressions mean and refer to the
Agreement and not to any particular article or section;
"Article" or "Section" means and refers to the specified
article or section of this Agreement;
(a) Business Day - "Business Day" means a day other than
a Saturday, Sunday or statutory holiday in the Province of
Ontario;
(c) Net Revenue Share - "Net Revenue Share" means the
total monies received by Playstar from the operation of the
pool software programs plus all monies received from
licensees, affiliates and portal operations for pool
software programs and prior to deduction of marketing
expenses;
1.1 Sections and Headings - The division of this Agreement into articles and
sections and the insertion of headings are for convenience of reference only and
shall not affect the construction or interpretation of this Agreement. The terms
"this Agreement", "hereof", "hereunder" and similar expressions refer to this
Agreement and not to any particular article, section or other portion hereof and
include any agreement or instrument supplemental or ancillary hereto. Unless
something in the subject matter or context is inconsistent therewith references
herein to articles and sections are to articles and sections of this Agreement.
1.2 Number & Gender - Words importing the singular number only shall include the
plural and vice versa and words importing the masculine gender shall include the
feminine and neuter genders and vice versa.
1.3 Applicable Law - this Agreement shall be construed and enforced in
accordance with the laws of the Island of Antigua applicable therein.
1.4 Currency - Unless otherwise specified, all references herein to currency
shall be references to currency of the United states of America.
1.5 Calculation of Time - When calculating the period of time within which or
following which any act is to be done or step taken pursuant to this Agreement,
the date which is the reference date in calculating such period shall be
excluded. If the last day of such period is a non-Business Day, the period in
question shall end on the next Business Day.
ARTICLE TWO
AGREEMENT
2.0 SMP shall build and construct, at their cost complete pool software programs
in form and content to be mutually agreed upon pursuant to specifications set
forth by Playstar.
2.1 SMP shall receive fifty percent (50%) of the Net Revenue Share received from
the use of the programs;
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2.2 All marketing expenses for the pool software programs shall be borne equally
by Playstar and SMP;
2.3 Playstar shall bear any deficit incurred in the operation of any pool;
2.4 SMP is hereby granted an Option by Playstar to convert their Net Revenue
Share to an equity position by converting the dollar portion of the said Net
Revenue Share at a conversion price of Ten cents (U.S.) per share for the
issuance of common shares of Playstar up to a maximum of two million (2,000,000)
shares of the capital stock of Playstar. The First (1st) Option Term commences
September 1, 2000 and expires August 31, 2001;
2.5 In the event that SMP fails to exercise the option for the maximum of two
million (2,000,000) shares during the First (1st) Option Term then the option
term will be extended for a Second (2nd) Option Term commencing September 1,
2001 and ending August 30, 2002.
2.6 During this period SMP shall have the Option of converting a portion of
their Net Revenue Share into common shares of Playstar up to a maximum number of
shares remaining after deducting those shares issued during the First (1st)
Option Term from the maximum number of two Million (2,000,000) common shares of
Playstar. During this second (2nd) option term the conversion or strike price
for the exercise of the Option shall be the closing share price as at August 30,
2002 on the Nasdaq Exchange for Playstar shares.
2.7 Any tender of documents or money hereunder may be made by the parties or
their respective solicitors.
ARTICLE THREE
INTELLECTUAL PROPERTY AND TITLE
3.0 The Parties agree that the pool software programs developed hereunder and
all source codes related thereto shall become and remain the property of
Playstar with full right, title, and interest thereto, and shall be copyrighted
in Playstar's name.
ARTICLE FOUR
REPRESENTATIONS AND WARRANTIES OF SMP
SMP represents and warrants in favour of Playstar as follows:
4.0 SMP is a corporation duly incorporated and continued and organized and is
validly existing in good standing under the laws of the Island of Antigua and
has all necessary corporate power, authority and capacity to own their property
and assets and to carry on business.
4.1 SMP has the capacity and exclusive right to enter into this Agreement and
the entering into of this Agreement will not violate, contravene, breach or
offend against or
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result in any default under any indenture, any mortgage, any lease of, or
agreement or instrument relating to, realty or revenue producing equipment, any
charter or by-law provision, statute, regulation, order, judgment, decree or law
to which SMP is a party or subject or by which SMP is bound or affected.
4.2 This Agreement constitutes a valid and binding obligation of SMP enforceable
against it in accordance with the terms hereof.
ARTICLE OF FIVE
REPRESENTATIONS AND WARRANTIES OF PLAYSTAR
Playstar represents and warrants in favour of SMP as follows:
5.0 Playstar has all necessary power, authority and capacity to perform its
obligations hereunder. The execution and delivery of this Agreement has been
authorized by all necessary action on the part of Playstar.
5.1 Playstar is not a party to, bound or affected by or subject to any
indenture, mortgage, lease, agreement, instrument, which would be violated,
contravened or breached by, or under which any default would occur as a result
of the execution and delivery by it of this Agreement or the performance by it
of any of the terms hereof.
5.2 This Agreement constitutes a valid and binding obligation of Playstar
enforceable against it in accordance with the terms hereof.
ARTICLE SIX
WARRANTY AND INDEMNITY
6.0 SMP warrants and represents that the pool software programs developed by
them will function in accordance with system specifications hereinbefore
referred to. SMP shall not be liable for consequential loss or damage resulting
from the use of the pool software Programs or arising out of any breach of this
warranty.
6.1 In the event that the pool software programs do not function during the one
(1) year period from the date of installation, SMP shall correct any
malfunctions forthwith at SMP's cost. The Parties agree to enter into terms and
conditions mutually agreed upon.
6.2 Playstar agrees and acknowledges that SMP shall not be liable for the
negligence of Playstar, its employees, servants of agents in the operation of
the pool software programs developed and referred to herein.
ARTICLE SEVEN
CONFIDENTIALITY AND NON-SOLICITATION
7.0 The Parties agree that they shall not, without the prior written consent of
each
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other divulge to any person, firm or corporation any information and data made
available to the parties in relation to the business, capitalization, prospects,
and affairs of SMP and/or Playstar and/or any of its principals. The Parties
further agree that they shall not, without the prior written consent of each
other divulge to any person, firm or corporation any name of any client of SMP
and/or Playstar nor solicit, interfere with or endeavour to entice away from the
SMP and/or Playstar any client or any person, firm, contractors, software
developers or corporation in the habit of dealing with SMP and/or Playstar or
interfere with or entice away any employee of the SMP and/or Playstar.
7.1 The Parties agree that all records, material and information pertaining to
Playstar and/or SMP, without limitation, any client lists or mailing lists and
any copies thereof obtained by them are confidential and shall remain the
exclusive property of the said Parties. The Parties shall not, at any time,
divulge the contents of such records or any of such information to any person
other than to each other, qualified employees of the Parties nor use the
contents of such records or any such information for any purpose whatsoever
other than in accordance with the business and affairs of SMP and/or Playstar.
7.2 The Parties hereby acknowledge and agree that all restrictions hereinbefore
contained are reasonable and valid and all defences to the strict enforcement of
all or any portion thereof, including injunctive relief, are hereby waived.
7.3 The Parties hereby acknowledge and agree that the provisions of Article 7
Clause 7.1 and 7.2 herein shall survive the termination of this Agreement and
shall remain in full force and effect thereafter.
ARTICLE EIGHT
GENERAL
8.0 The Parties agree to assist each other in the implementation of all systems
from the date of execution of this Agreement, including the execution of all
documents to give effect to this Agreement.
8.1 Each of the parties hereto upon the request of the other party hereto,
whether before or after the execution of this Agreement shall do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged or delivered
all such further acts, deeds, documents, assignments, transfers, conveyances,
powers of attorney and assurances as may be reasonably necessary or desirable to
effect complete consummation of the transactions contemplated by this Agreement.
8.2 This Agreement shall enure to the benefit of and be binding upon the
respective successors and permitted assigns of the parties hereto.
8.3 This Agreement constitutes the entire agreement between the parties hereto
with respect to the subject matter hereof and cancels and supersedes any prior
understandings and agreements between the parties hereto with respect thereto.
There
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are no representations, warranties, terms, conditions, undertakings or
collateral agreements, express, implied or statutory, between the parties other
than as expressly set forth in this Agreement.
8.4 No amendment to this Agreement shall be valid or binding unless set forth in
writing and duly executed by all of the parties hereto. No waiver of any breach
of any provision of this Agreement shall be effective or binding unless made in
writing and signed by the party purporting to give the same and, unless
otherwise provided in the written waiver, shall be limited to the specific
breach waived.
8.5 Time shall be of the essence of this Agreement.
8.6 If any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability shall
attach only to such provision and all other provisions hereof shall continue in
full force and effect.
8.7 For the purposes of all legal proceedings this Agreement shall be deemed to
have been performed in the Island of Antigua and the courts of the Island Of
Antigua shall have jurisdiction to entertain any action arising under this
Agreement.
8.8 Any demand, notice or other communication (the "Communication") to be given
in connection with this Agreement shall be given in writing and may be given by
personal delivery, by registered mail or by transmittal by facsimile addressed
to the recipient as follows:
To: SMP Mutual Financial Centre Factory Road
St. John's, Antigua
X.X. Xxx X 0000 Xxxxx Xxxxxx
Xxxxxxx, XX
To: Playstar Mutual Financial Centre Factory Road
St. John's, Antigua
X.X. Xxx X 0000 Xxxxx Xxxxxx
Xxxxxxx, XX
or such other address or facsimile number as may be designated by notice by any
party to the other. Any Communication given by personal delivery shall be
conclusively deemed to have been given on the day of actual delivery thereof
and, if given by registered mail, on the 5th Business Day following the deposit
thereof in a governmental public post box or governmental post office and, if
given by facsimile, on the day of transmittal thereof. If the party giving any
Communication knows or ought reasonably to know of any difficulties with the
postal system which might affect the delivery of mail, any such Communication
shall not be mailed but shall be given by personal delivery or by facsimile.
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IN WITNESS WHEREOF the parties have executed this Agreement as of the
date first written above.
SIGNED, SEALED AND DELIVERED
SMP DATA INC.
Per: /s/ Xxxxxx Xxxxx
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I HAVE AUTHORITY TO BIND
THE CORPORATION
PLAYSTAR WYOMING HOLDING CORP.
Per: /s/ Xxxxxxx Xxxxxxxxxx
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I HAVE AUTHORITY TO BIND
THE CORPORATION
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THIS AGREEMENT MADE this 1st day of August, 2000.
B E T W E E N :
SMP DATA INC.
- and -
PLAYSTAR WYOMING HOLDING CORP.
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AGREEMENT
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XXXX, XXXXXX
Barristers & Solicitors
0 Xx. Xxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx
X0X 0X0
Xxxxxx Xxxx, Q.C. - 323-1116
