EXHIBIT 10.4
PLAYSTAR WYOMING HOLDING CORP.
REGULATION D 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 __________ U.S. Dollars ($_______).
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 subscribed for, has relied upon independent investigations
made by him or it and his or its representatives, if any; and the
undersigned and/or its advisors have had a reasonable opportunity to ask
questions of and receive answers from the 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 from an officer of the Company
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 not subscribing for the Securities as a
result of or subsequent to any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or
broadcast over television or radio, or presented at any seminar or
meeting, or any solicitation of a subscription by a person not
previously known to the undersigned in connection with investments in
securities generally.
(d) As applicable, the undersigned has reached the age of majority
in the state in which the undersigned resides, has adequate means of
providing for the undersigned's current financial needs and
contingencies, 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.
(e) The undersigned has such knowledge and experience in financial,
tax and business matters so as to enable him to utilize the information
made available to the undersigned in connection with the offering 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.
(f) The undersigned acknowledges that the purchase of the Securities
involves a high degree of risk and further acknowledges that he or it
can bear the economic risk of the purchase of the Securities, including
the total loss of his or its investment. The undersigned is not relying
on the Company with respect to the tax and other economic considerations
of an investment in the Securities, and the undersigned has relied on
the advice of, or has consulted with, only the undersigned's own
advisor(s).
(g) The undersigned has full right and power to perform pursuant to
this Subscription Agreement and make an investment in the Company and,
if the undersigned is a corporation, partnership, trust or other entity,
is authorized and otherwise duly qualified to purchase and hold the
Securities and to enter into this Subscription Agreement.
(h) The undersigned will not sell or otherwise transfer the
Securities without registration under the Securities Act of 1933, as
amended (the "SECURITIES ACT") or an exemption therefrom and fully
understands and agrees that the undersigned must bear the economic risk
of the undersigned's purchase for an indefinite period of time because,
among other reasons, the Securities have not been registered under the
Securities Act or under the securities laws of certain states and,
therefore, cannot be resold, pledged, assigned or otherwise disposed of
unless the securities are subsequently registered under the Securities
Act and under the applicable securities laws of such states or unless an
exemption from such registration is available in the opinion of counsel
for the holder, which counsel and opinion are reasonably satisfactory to
counsel for the Company. The undersigned is purchasing the Securities
for the undersigned's own account, for
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investment and not with a view to resale or distribution except in
compliance with the Securities Act. The undersigned is aware that an
exemption from the registration requirements of the Securities Act
pursuant to Rule 144 promulgated thereunder is not presently available;
that, except as contemplated by section 5 hereof, the Company has no
obligation to make available an exemption from the registration
requirements pursuant to such Rule 144 or any successor rule for resale
of the Securities; and that even if an exemption under Rule 144 were
available, Rule 144 permits only routine sales of securities in limited
amounts in accordance with the terms and conditions of such Rule 144.
(i) The undersigned agrees to the placement of a legend on any
certificate or other document evidencing the Securities stating that
they have not been registered under the Securities Act (and a stop
transfer order may be placed with respect thereto).
(j) The undersigned understands that the Securities are being
offered and sold to him or it in reliance on specific exemptions from
the registration requirements of federal and state securities laws 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 acquire 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 the subscription and will promptly send the Company written
confirmation thereof. The representations, warranties and agreements of
the undersigned contained herein shall survive the execution and
delivery of this Subscription Agreement and the purchase of the
Securities.
3. Accredited Investor Status. The undersigned further represents and
warrants as indicated below by the undersigned's initials:
(a) Individual Investors: (Initial one or more of the following
three statements)
(i) ____ I certify that I am an accredited investor because I
have had individual income (exclusive of any income earned by my
spouse) of more than $200,000 in each of the most recent two years
and I reasonably expect to have an individual income in excess of
$200,000 for the current year.
(ii) ____ I certify that I am an accredited investor because I
have had joint income with my spouse in excess of $300,000 in each of
the two most recent years and I reasonably expect to have joint
income with my spouse in excess of $300,000 for the current year.
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(iii) ____ I certify that I am an accredited investor because I
have an individual net worth, or my spouse and I have a joint net
worth, in excess of $1,000,000.
(b) Partnerships, corporations, trusts or other entities: (Initial
one of the following statements)
(i) The undersigned hereby certifies that it is an accredited
investor because it is:
________ (A) an employee benefit plan whose total assets exceed
$5,000,000;
________ (B) an employee benefit plan whose investment decisions are
made by a plan fiduciary which is either a bank, savings
and loan association or an insurance company (as defined
in Section 3(a) of the Securities Act) or an investment
adviser registered as such under the Investment Advisers
Acts of 1940;
________ (C) a self-directed employee benefit plan, including an
Individual Retirement Account, with investment decisions
made solely by persons that are accredited investors;
________ (D) an organization described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended, not formed
for the specific purpose of acquiring the Securities
with total assets in excess of $5,000,000;
________ (E) any corporation, partnership or Massachusetts or similar
business trust, not formed for the specific purpose of
acquiring the Securities, with total assets in excess of
$5,000,000; or
________ (F) a trust with total assets in excess of $5,000,000, not
formed for the specific purpose of acquiring the
Securities, whose purchase is directed by a person who
has such knowledge and experience in financial and
business matters that he is capable of evaluating the
merits and risks of an investment in the Securities.
________ (ii) The undersigned hereby certifies that it is an accredited
investor because it is an entity in which each of the
equity
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owners qualifies as an accredited investor under items
(a)(i), (ii) or (iii) or item (b)(i) above.
4. 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.
5. Registration.
(a) Definitions. The following definitions shall apply with respect
to a registration (a "REGISTRATION") pursuant to this section 5:
(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 5:
(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
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dispose of any Registrable Securities (other than those included in
the 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 5(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,
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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 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
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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 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
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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 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 5 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 5, 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
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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 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 5, the undersigned shall severally and not
jointly indemnify and hold
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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 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 5
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
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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 5 is unavailable to an Indemnified Party or is insufficient
to hold it harmless as contemplated by this section 5, then the
Indemnifying Party shall contribute to the amount paid or payable by
the Indemnified Party as a result of 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.
6. 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.
-13-
(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]
-14-
IN WITNESS WHEREOF, the undersigned has executed this
Subscription Agreement dated as of _________________, 2000.
Subscription
Amount: $
---------------
-------------------------------------
(Signature of Subscriber)
-------------------------------------
Print or Type Name
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: , 2000
-----------------------
-15-