PIGGYBACK REGISTRATION RIGHTS AGREEMENT
THIS PIGGYBACK REGISTRATION RIGHTS AGREEMENT (hereinafter referred to
as the "Agreement"), is entered into effective as of the ___th day of ________,
2007, by and between Gottaplay Interactive, Inc., a Company authorized and
existing pursuant to the laws of the state of Nevada (the "Company"), and the
undersigned purchaser (the "Purchaser")of Units pursuant to a Subscription
Agreement.
W I T N E S S E T H:
WHEREAS, on the date of this Agreement, the Purchaser purchased
Unit(s) pursuant to a Subscription Agreement, each Unit consisting of shares of
Common Stock of the Company and warrants to purchase Common Stock (the
"Warrants"); and
WHEREAS, the Warrants #1 and #2 entitle the Purchaser to purchase
shares of Common Stock of the Company, par value $0.001 per share, (the "Warrant
Shares") at the purchase price of $1.50 and $2.50 per share, for the term
commencing on the date of this Agreement and expiring on ____________, 2009 and
_____________, 2010; and
WHEREAS, the Subscription Agreement provides for the purchase of the
Company's Common Stock, par value $0.01 per share, with a purchase price of one
dollar and Twenty-five Cents ($1.25) per share; and
WHEREAS, the Company and the Purchaser desire to make conditional
provisions for the registration of the Shares and the securities to be issued
upon exercise of the Warrants as set forth herein, if the same be necessary.
NOW, THEREFORE, for and in consideration of the premises and of the mutual
covenants, representations, warranties and Agreements herein contained, the
parties hereto agree as follows:
Section 1: Definitions
1.1 As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Exchange Act" means the Securities and Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles, as in effect from time to
time in the United States, consistently applied
"Purchaser" means the Purchaser, or any assignee of a Purchaser.
"Common Stock" means the common stock of the Company, par value $0.001.
"Person" means a natural person, partnership, Company, business trust,
association, joint venture or other entity or a government or agency or
political subdivision thereof.
"Prospectus" means the prospectus included in any Registration Statement, as
supplemented by any and all prospectus supplements and as amended by any and all
post-effective amendments and including all material incorporated by reference
in such prospectus.
"Registration" means the registration described in Section 2 hereof.
"Registrable Securities" means the Shares and the Warrant Shares, owned by the
Purchaser, and any securities issued or issuable with respect to such Common
Stock by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
reorganization.
"Registration Statement" means the registration statement which covers
Registrable Securities pursuant to the provisions of this Agreement, including
the Prospectus included in such registration statement, amendments (including
post-effective amendments) and supplements to such registration statement, and
all exhibits to and all material incorporated by reference in such registration
statement.
"Registrable Shares" means any shares of Common Stock of the Company issued to
Purchaser for which a Registration Statement has not become effective.
"Securities Act" means the Securities Act of 1933, as from time to time amended.
"Selling Purchaser" means any Purchaser of Registrable Shares who exercises any
Registration Rights granted hereunder
"Warrant Shares" mean any and all shares of Common Stock issued or issuable upon
exercise of the Warrant.
Section 2: Piggyback Registration Rights
2.1 If the Company proposes to file a registration statement under the
Securities Act with respect to an offering for its own account, or the account
of another stockholder, of any class of its equity securities (other than a
registration statement on Form S-8 (or any successor form) or any other
registration statement relating solely to employee benefit plans or filed in
connection with an exchange offer, a transaction to which Rule 145 (or any
successor provision) under the Securities Act applies or an offering of
securities solely to the Company's existing stockholders), then the Company
shall in each case give written notice of such proposed filing to the Purchaser
as soon as practicable (but no later than 20 business days) before the
anticipated filing date, and such notice shall offer each Purchaser the
opportunity to register such number of shares of Conversion Shares and Warrant
Shares (together the "Registrable Shares") as such Purchaser may request. Each
Purchaser desiring to have Registrable Shares" included in such registration
statement shall so advise the Company in writing within 10 business days after
the date on which the Company's notice is so given, setting forth the number of
shares of Registrable Shares for which registration is requested. If the
Company's offering is to be an underwritten offering, the Company shall, subject
to the further provisions of this Agreement, use its reasonable best efforts to
cause the managing underwriter or underwriters to permit the Purchasers of the
Registrable Shares requested to be included in the registration for such
offering to include such Registrable Shares in such offering on the same terms
and conditions as any similar securities of the Company included therein. The
right of each Purchaser to registration pursuant to this Section 4 in connection
with an underwritten offering by the Company shall, unless the Company otherwise
assents, be conditioned upon such Purchaser's participation as a seller in such
underwritten offering and its execution of an underwriting agreement with the
managing underwriter or underwriters selected by the Company. Notwithstanding
the foregoing, if the managing underwriter or underwriters of such offering
deliver a written opinion to the Company that either because of (a) the kind of
securities that the Company, the Purchasers and any other persons or entities
intend to include in such offering or (b) the size of the offering that the
Company, the Purchasers and any other persons or entities intend to make, the
success of the offering would be materially and adversely affected by inclusion
of the Registrable Shares requested to be included, then (i) in the event that
the size of the offering is the basis of such managing underwriter's opinion,
the number of shares of Registrable Shares to be registered and offered for the
accounts of Purchasers shall be reduced pro rata on the basis of the number of
securities requested by such Purchasers to be registered and offered to the
extent necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such managing underwriter or underwriters
(provided that if securities are being registered and offered for the account of
other persons or entities in addition to the Company, such reduction shall not
be proportionally greater than any similar reductions imposed on such other
persons or entities) and (ii) in the event that the combination of securities to
be offered is the basis of such managing underwriters opinion, (x) the
Registrable Shares to be included in such registration and offering shall be
reduced as described in clause (i) above or (y) if such actions would, in the
reasonable judgment of the managing underwriter, be insufficient to
substantially eliminate the adverse effect that inclusion of the Registrable
Shares requested to be included would have on such offering, such Registrable
Shares will be excluded entirely from such registration and offering. Any
Registrable Shares excluded from an underwriting shall, if applicable, be
withdrawn from registration and shall not, without the consent of the Company,
be transferred in a public distribution prior to the earlier of ninety (90) days
(or such other shorter period of time as the managing underwriter may require)
after the effective date of the registration statement or ninety (90) days after
the date the Purchasers of such Registrable Shares are notified of such
exclusion.
Section 3: Registration Procedures
3.1 Whenever holders of Registrable Shares have requested pursuant to Section
2.1 that any Registrable Shares be registered, the Company shall, subject to the
provisions of Section 4.3 hereof, use its reasonable best efforts to effect the
registration and the sale or distribution of such Registrable Shares in
accordance with the intended method of disposition thereof as promptly as
practicable, and in connection with any such request, the Company shall:
(a) prepare and file with the Securities and Exchange Commission, a
registration statement on any form for which the Company then qualifies and
which counsel for the Company shall deem appropriate and which form shall be
available for the sale or distribution of such Registrable Shares in accordance
with the intended method of distribution thereof, and use its reasonable best
efforts to cause such registration statement to become effective; provided that,
(i) before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to one counsel selected by the
Purchasers of a majority of the shares of Registrable Shares covered by such
registration statement copies of all such documents proposed to be filed, which
documents will be subject to the review and comment of such counsel and (ii)
after the filing of the registration statement, the Company shall promptly
notify each Selling Purchaser of Registrable Shares of any stop order issued or,
to the knowledge of the Company, threatened by the Securities and Exchange
Commission and take all reasonable actions to prevent the entry of such stop
order or to remove it if entered;
(b) prepare and file with the Securities and Exchange Commission
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period of not less than ninety (90) days
or such shorter period as shall terminate when the distribution of all
Registrable Shares covered by such registration statement shall have terminated
(but not before the expiration of the ninety day (90) period referred to in
Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable) and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the Selling Purchasers
thereof set forth in such registration statement;
(c) as soon as reasonably practicable, furnish to each Selling
Purchaser, prior to filing a registration statement, copies of such registration
statement as proposed to be filed and thereafter furnish to such Selling
Purchaser such number of copies of such registration statement, each amendment
and supplement thereto, the prospectus included in such registration Statement
(including each preliminary prospectus) and such other documents as such Selling
Purchaser may reasonably request in order to facilitate the disposition of the
Registrable Shares owned by such Selling Purchaser;
(d) use its best efforts to register or qualify such Registrable
Shares under such other securities or blue sky laws of such jurisdictions within
the United States and Canada as any Selling Purchaser reasonably (in light of
such Selling Purchaser's intended plan of distribution) requests and do any and
all other acts and things which may be reasonably necessary or advisable to
enable such Selling Purchaser to consummate the disposition in such
jurisdictions of the Registrable Shares owned by such Selling Purchaser;
provided that the Company shall not be required to (i) qualify generally to do
business or file a general consent to service of process in any jurisdiction or
(ii) take any action that would subject itself to taxation in any such
jurisdiction;
(e) promptly notify each Selling Purchaser of such Registable
Shares, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, of the occurrence of any event known to the
Company requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers or recipients of
such Registrable Shares, such prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and promptly make
available to each Selling Purchaser any such supplement or amendment;
(f) enter into an underwriting agreement in customary form, the form
and substance of such underwriting agreement being subject to the reasonable
satisfaction of the Company and a majority in interest of the Selling
Purchasers;
(g) make available for inspection by any Selling Purchaser, any
underwriter participating in any sale or distribution pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such Selling Purchaser or underwriter (collectively, the "Inspectors") all
financial and other records, pertinent corporate documents and properties of the
Company (collectively, the "Records") as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the Company's
officers and employees to supply all information reasonably requested for such
purpose by any such Inspector in connection with such registration statement;
provided that the Company shall have no obligation to permit such access to the
Records or its officers or employees in a manner that would unreasonably disrupt
the normal conduct of its business operations. Each such Selling Purchaser and
Inspector that actually reviews Records supplied by the Company that include
information that the Company identifies, in good faith, as being confidential or
proprietary ("Confidential Information") shall be required at the Company's
option, prior to any such review, to execute an agreement with the Company
providing that such Inspector shall not publicly disclose any Confidential
Information unless such disclosure is required by applicable law or legal
process and shall not use such information for any purpose other than the
limited purpose contemplated by this subsection (g). Each such Selling Purchaser
and Inspector shall be required further to agree that it shall, upon learning
that disclosure of Confidential Information is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at its expense,
to undertake appropriate action to prevent disclosure of the Confidential
Information;
(h) in the event such sale is pursuant to an underwritten offering,
use its reasonable best efforts to obtain a comfort letter or letters from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by comfort letters as the managing
underwriter reasonably requests; and
(i) otherwise use its reasonable efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission and
make available to its security Purchasers, as soon as reasonably practicable, an
earnings statement complying with the provisions of Section 11(a) of the
Securities Act (including, at the option of the Company, pursuant to Rule 158
(or any successor provision) under the Securities Act).
Upon receipt of any notice from the Company of the occurrence of any
event of the kind described in subsection (e) hereof, such Selling Purchaser
shall forthwith discontinue all offerings, sales and other dispositions of
Regisrable Shares pursuant to the registration statement covering such
Registrable Shares until such Selling Purchaser's receipt of the copies of the
supplemented or amended prospectus contemplated by subsection (e) hereof. In the
event the Company shall give any such notice, the Company shall extend the
period during which such registration statement shall be maintained effective
pursuant to this Agreement (including the period referred to in subsection (b)
hereof) by the number of days during the period from and including the date of
the giving of such notice pursuant to subsection (b) hereof to and including the
first date on which each Selling Purchaser of Registrable Shares covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by subsection (e) hereof. Each Selling Purchaser
shall notify the Company if any event relating to such Selling Purchaser occurs
which would require the preparation of a supplement or amendment to the
prospectus so that such prospectus will not contain 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.
Section 4: Conditions and Limitations.
4.1 The Company's obligations under this Section 4 shall be subject to the
Company having received the information and documents specified in Section 5
hereof and each Selling Purchaser shall have observed or performed its other
covenants contained in Sections 5 and 7 hereof.
4.2 The Company's obligation under Section 4 hereof shall be subject to the
limitations and conditions specified in such section, and to the condition that
the Company may at any time terminate its proposal to register equity securities
for its own account and discontinue its efforts to cause a registration
statement to become or remain effective as to any and all shares of Registrable
Shares that would otherwise have been eligible for inclusion in such
registration.
Section 5: Certain Covenants of Purchasers of Registrable Shares
5.1 Notices and requests delivered to the Company by Purchasers for whom
Registrable Shares is to be registered pursuant to this Agreement shall contain
such information regarding the Registrable Shares to be so registered, the
Purchaser and the intended method of disposition of such Registrable Shares as
shall reasonably be required in connection with the actions contemplated to be
taken pursuant to this Agreement. Any Purchaser whose Registrable Shares is
included in a registration statement pursuant to this Agreement shall execute
all consents, powers of attorney, registration statements and other documents
reasonably required to be executed by it in order to cause such registration
statement to became effective. Each Selling Purchaser covenants that, in
disposing of such Purchaser's shares, such Purchaser will comply with Rules
10b-2, 10b-5, 10b-6 and 10b-7 (or any successor provisions) under the Exchange
Act and all other requirements of applicable law.
Section 6: Registration Expenses
6.1 All Registration Expenses (as defined herein) will be borne by the Company.
Underwriting discounts and commissions applicable to the sale of Registrable
Shares shall be borne by the Purchaser of the Registrable Shares to which such
discount or commission relates, and each Selling Purchaser shall be responsible
for the fees and expenses of any legal counsel, accountants or other agents
retained by such Selling Purchaser and all other out-of-pocket expenses incurred
by such Selling Purchaser in connection with any registration under this
Agreement.
6.2 As used herein, the term Registration Expenses means all expenses incident
to the Company's performance of or compliance with this Agreement (whether or
not the registration in connection with which such expenses are incurred
ultimately becomes effective), including without limitation all registration and
filing fees, fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky qualifications of the Registrable Shares), rating agency fees, printing
expenses, the fees and expenses incurred in connection with the listing or
admission for quotation of the securities to be registered an any securities
exchange or quotation system and fees and disbursements of counsel for the
Company and its independent certified public accountants (including the expenses
of any special audit or comfort letters required by or incident to such
performance), securities act liability insurance (if the Company elects to
obtain such insurance), the reasonable fees and expenses of any special expert
retained by the Company in connection with such registration and the fees and
expenses of other persons retained by the Company.
Section 7: Indemnification; Contribution
7.1 Indemnification by the Company. In connection with any offering of
Registrable Shares pursuant to this Agreement, the Company shall indemnify and
hold harmless each Selling Purchaser, its officers, directors and agents and
each person, if any, who controls such Selling Purchaser within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages, liabilities and expenses
(including reasonable fees and disbursements of counsel) arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating to Restricted
Stock or in any amendment or supplement thereto or in any preliminary prospectus
relating to Registrable Shares or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made, except insofar as such losses, claims,
damages, liabilities or expenses arise out of, or are based upon, any such
untrue statement or alleged untrue statement or omission or alleged omission
based upon information furnished in writing to the Company by such Selling
Purchaser or on such Selling Purchaser's behalf expressly for use therein. In
connection with any underwritten offering of Registrable Shares registered
pursuant to this Agreement, the Company shall cause to be included in any
underwriting agreement with the underwriters of such offering provisions
indemnifying and providing for contribution to such underwriters and their
officers and directors and each person who controls such underwriters on
substantially the same basis as the provisions of this Section 7.1 indemnifying
and providing for contribution to the Selling Purchasers.
7.2 Indemnification by Purchasers of Registrable Shares. In connection with any
offering of Registrable Shares pursuant to this Agreement, each Selling
Purchaser, severally and not jointly, shall indemnify and hold harmless the
Company, its officers, directors and agents and each person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, and, in accordance with industry
practice, in the case of an offering of Registrable Shares pursuant to this
Agreement, each underwriter of such Registrable Shares if requested by such
underwriter, from and against any and all losses, claims, damages, liabilities
and expenses (including reasonable fees and disbursements of counsel) arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus relating to
Registrable Shares or in any amendment or supplement thereto or in any
preliminary prospectus relating to Registrable Shares, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made, provided
that (i) such losses, claims, damages, liabilities or expenses arise out of, or
are based upon, any such untrue statement or alleged untrue statement or
omission or alleged omission based upon information furnished in writing to the
Company by such Selling Purchaser or on such Selling Purchaser's behalf
expressly for use therein and (ii) no Selling Purchaser shall be liable for any
indemnification under this Section 7.2 in an aggregate amount which exceeds the
total net proceeds received by such Selling Purchaser from such offering. In
connection with any underwritten offering of Registrable Shares registered
pursuant to this Agreement, each Selling Purchaser shall cause to be included in
any underwriting agreement with the underwriters of such offering provisions
indemnifying and providing for contribution to such underwriters, their officers
and directors and each person who controls such underwriters on substantially
the same basis as the provisions of this Section 4.6(b) indemnifying and
providing for contribution to the Company.
7.3 Conduct of Indemnification Proceedings. If any action or proceeding
(including any governmental investigation) shall be brought or asserted against
any indemnified party hereunder in respect of which indemnity may be sought from
an indemnifying party hereunder, such indemnifying party shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
such indemnified party, and shall assume the payment of all expenses. Such
indemnified party shall have the right to employ separate counsel in any such
action and to participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expenses of such indemnified party unless (i) the
indemnifying party has agreed to pay such fees and expenses, (ii) the
indemnifying party shall have failed to assume the defense of such action or
proceeding and employ counsel reasonably satisfactory to such indemnified party,
or (iii) the named parties to any such action or proceeding (including any
impleaded parties) include both such indemnified party and such indemnifying
party, and such indemnified party shall have been advised by counsel that there
may be one or more legal defenses available to such indemnified party which are
different from or additional to those available to the indemnifying party (in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action or proceeding on behalf of such indemnified party; it being
understood, however, that the indemnifying party shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for such indemnified party, which firm shall be designated
in writing by such indemnified party and reasonably satisfactory to the
indemnifying party). The indemnifying party shall not be liable for any
settlement of any such action or proceeding erected without its written consent,
but if settled with its written consent, or if there is a final judgment for the
plaintiff in any such action or proceeding, the indemnifying party shall
indemnify and hold harmless the indemnified party from and against any loss or
liability (to the extent stated above) by reason of such settlement or judgment.
7.4 Contribution. If the indemnification provided for in this Section 4 is
unavailable to the Company or the Selling Purchasers in respect of any losses,
claims, damages, liabilities or judgments referred to herein, then each such
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments in such proportion as
is appropriate to reflect the relative fault of each such party in connection
with such statements or omissions or alleged statements or omissions, as well as
any other relevant equitable considerations. The relative fault of each such
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Selling Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 4(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding sentences.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding sentences shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claims.
Notwithstanding the provisions of this Section 4(d), no Selling Purchaser shall
be required to contribute an amount in excess of the amount by which the total
price at which the Registrable Shares of such Selling Purchaser was offered to
the public exceeds the amount of any fee which such Selling Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. 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 is not guilty of such
fraudulent misrepresentation.
Section: 8 Representations and Warranties
The Company represents and warrants that:
8.1 Existence and Rights. The Company is a Company duly organized, validly
existing and in good standing under the laws of the state of Minnesota. The
Company has all requisite corporate power and authority, to carry on its
business and to own and use the properties owned and used by it. True and
correct copies of the Company's Articles of Incorporation and Bylaws, as amended
to date, have been delivered to Purchaser. The Company is qualified to conduct
business and is in good standing under the laws of each jurisdiction wherein the
nature of its business or its ownership of property requires it to be so
qualified, except where the failure to be so qualified, would not individually
or in the aggregate, have a material adverse effect on the assets or business of
the Company. The Company has no Subsidiaries.
8.2 Corporate Authorization. The Company has all necessary power and authority
to enter into this Agreement and has taken all action, specifically including,
without limitation, all corporate action, necessary to execute, deliver and
perform this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and is a legally valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
8.3 No Conflict. The execution, delivery and performance of this Agreement and
of the related documents by the Company will not violate any provision of the
Company's Articles of Incorporation or the Bylaws; or violate any law or rule or
regulation of any administrative agency or governmental body; or any order,
writ, injunction or decree of any court, arbiter, administrative agency or
governmental authority having jurisdiction over the Company; or violate any
indenture, mortgage, contract, will, agreement or other undertaking to which the
Company is a party or is subject, or result in the creation or imposition of any
lien or encumbrance on any of the properties of the Company under any of the
foregoing.
8.4 Litigation. There is no litigation, proceeding, dispute, tax audit or other
governmental investigation pending, or to the best of the Company's knowledge,
threatened against, or affecting the Company's business or its assets before any
court or governmental agency or other body, which would adversely affect the
financial condition of The Company, its assets, or the conduct of the Company's
business, or which may impede the transaction contemplated herein. There are no
outstanding and unpaid judgments, tax deficiencies, statements, or notices of
assessments or other demands for payment of taxes served on or filed against the
Company. The Company is not in default with respect to an order, writ,
injunction, decree or demand of any court or other governmental or regulatory
authority.
Section 9: Miscellaneous
9.1 Notices. Any notice or other communication required or permitted hereunder
shall be deemed given if in writing and delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally or sent by overnight air courier or facsimile transmission
or, if mailed, two days after the date of deposit in the United States mails, as
follows:
If to Purchaser: At the name and address listed on the Signature Page of this
Agreement
If to the Company.:
Gottaplay Interactive, Inc
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With a copy to:
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Any party may require any other party to serve notices in accordance with this
Section at a different address or directed to another person for receipt of
notices, if such party so designates such other person or address in writing
delivered to every other party in accordance with this Section 9, paragraph 9.1.
9.2 Partial Invalidity. Each part of this Agreement is intended to be separate.
If any term, covenant, condition or provision hereof is illegal or invalid or
unenforceable for any reason whatsoever, such illegality, invalidity or
unenforceability shall not affect the legality, validity or enforceability of
the remaining parts of this Agreement and all such remaining parts hereto shall
not be impaired or invalidated in any way, but shall be legal, valid and
enforceable and have full force and effect as if the illegal, invalid,
unenforceable part has not been included.
9.3 Law Governing Agreement. This Agreement shall be interpreted, construed and
enforced and its construction and performance shall be governed by the laws of
the State of Nevada without regard to principles of conflicts of laws, except to
the extent that Federal law may apply.
9.4 Entire Agreement. This Agreement constitutes the entire understanding and
Agreement of the parties hereto, and supersedes any and all prior understandings
or other Agreements, either oral or in writing, if any, among such parties with
respect to the subject matter hereof and contains all of the covenants and
Agreements between the parties with respect thereto. Each party to this
Agreement acknowledges that no representations, inducements, or Agreements, oral
or otherwise, have been made by such party, or anyone acting on behalf of such
party, which are not embodied herein, and no other Agreement, statement or
promise not contained in this Agreement shall be valid or binding. The parties
hereto have had an opportunity to consult with their respective attorneys
concerning the meaning and the import of this Agreement and each has read this
Agreement, as signified by their signatures below, and is executing the same for
the purposes and consideration herein expressed.
9.5 Waivers. No delay on the part of any party in exercising any right, power,
or privilege hereunder shall operate as a waiver thereof. Nor shall any waiver
on the part of any party of any such right, power or privilege, nor any single
or partial exercise of any such right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
The rights and remedies of any party based upon, arising out of or otherwise in
respect of any inaccuracy in or breach by any other party of any representation,
warranty, covenant or Agreement contained in this Agreement shall in no way be
limited by the fact that the act, omission, occurrence or other state of facts
upon which any claim of any such inaccuracy or breach is based may also be the
subject matter of any other representation, warranty, covenant or Agreement
contained in this Agreement (or in any other Agreement between the parties) as
to which there is no inaccuracy or breach.
9.6 Tax Consultation. Each Party acknowledges that it has had the opportunity to
and has consulted with their own separate independent accounting and tax
advisors in connection with the accounting and tax treatment for the
transactions contemplated hereby and the tax ramifications thereof. Each Party
shall bear all risk in connection with the accounting and tax treatment of the
transactions contemplated by this Agreement and no Party is relying on the other
Party in connection with the same.
9.7 Headings. The headings used in this Agreement are for administrative
purposes only and do not constitute substantive matter to be considered in
construing the terms and shall not affect the interpretation of this Agreement.
All references herein to Sections, subsections, and clauses, shall be deemed
references to such parts of this Agreement, unless the context shall otherwise
require. A reference to an article or section will mean an article or section in
this Agreement, unless otherwise explicitly set forth. The titles and headings
in this Agreement are for reference purposes only and will not in any manner
limit the construction of this Agreement. For the purposes of such construction,
this Agreement will be considered as a whole. The terms "including" and
"include" as used in this Agreement will be deemed to include the phrase
"without limitation."
9.8 Attorney's Fees and Costs. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs, and necessary disbursements, but
only from the offending party, in addition to any other relief to which it may
be entitled.
9.9 Representation by Counsel. Each party acknowledges that it has had the
opportunity to be represented by separate independent counsel in the negotiation
of this Agreement, that any such respective attorneys were of its own choosing,
that each authorized representative has read this Agreement and that he
understands its meaning and legal consequences to each party. Each Party
warrants and represents that he has consulted with his attorney of choice, or
voluntarily chose not to do so, concerning the execution, the meaning and the
import of this Agreement, and has read this Agreement and fully understands the
terms hereof as signified by his signature below, and is executing the same of
his own free will for the purposes and consideration herein expressed. Each
Party warrants and represents that he has had sufficient time to consider
whether to enter into this Agreement and that he is relying solely on his own
judgment and the advice of his own counsel, if any, in deciding to execute this
Agreement. Each Party warrants and represents that he has read this Agreement in
its entirety and has consulted with his attorney, if any concerning the
execution of this Agreement. If any or all Parties have chosen not to seek
counsel, said party or parties hereby acknowledge that he or they refrained from
seeking counsel entirely of his or their own volition and with full knowledge of
the consequences of such a decision.
9.10 Presumption Against Scrivener. Each party waives the presumption that this
Agreement is presumed to be in favor of the party which did not prepare it, in
case of a dispute as to interpretation.
9.11 Capacity. Each party represents and warrants that he has the authority to
enter into this Agreement either on his own behalf or in an official capacity on
behalf of a corporate party.
9.12 Further Assurances. At any time and from time to time after the date
hereof, at the request of any Party, and without further consideration, every
other party will execute and deliver such other and further instruments and
documents, and take such other action as the other Party may reasonably deem
necessary, convenient or desirable in order to more effectively assist any Party
in exercising all rights with respect thereto, and carrying out the business,
duties, and obligations created by this Agreement.
9.13 Amendments. This Agreement may not be modified, amended, superceded,
cancelled, renewed or extended, except in writing, signed by the party or
parties to be bound thereby or signed by their respective attorneys.
9.14 Binding Effect and Assignment. This Agreement and the terms, covenants,
conditions, provisions, obligations, undertakings, rights and benefits hereof,
shall be binding upon, and shall inure to the benefit of, the undersigned
parties and their respective heirs, executors, administrators, representatives,
officers, directors, Company, successors, agents, servants, employees,
attorneys, and assigns. This Agreement may not be assigned by the Purchaser
without the consent of the Company. This Agreement shall inure to the benefit of
and bind the Parties hereto and their respective legal representatives,
successors, and permitted assigns.
9.15 Counterparts. This Agreement may be executed in several counterparts by one
or more of the undersigned and all such counterparts so executed shall together
be deemed and constitute one final Agreement, as if one document had been signed
by all parties hereto; and each such counterpart shall be deemed an original,
binding the parties subscribed hereto and multiple signature pages affixed to a
single copy of this Agreement shall be deemed to be a fully executed original
Agreement. Several counterparts consisting of multiple copies hereof each signed
by less than all parties, but together signed by all parties shall constitute
and be deemed a fully executed original Agreement.
9.16 Corporate Authority. The Company represents and warrants to the Purchaser
other that it has previously taken the necessary corporate action authorizing
the execution of this Agreement and the undertakings to be accomplished
hereunder by its officer recited below.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as evidenced by
their respective signatures below, effective as of the date provided herein.
(SIGNATURE PAGE ON NEXT PAGE)
Gottaplay Interactive, Inc
By._________________________________
Purchaser:
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Signature and Date
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Print Name
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Address
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