July 2003
SHAREHOLDERS' AGREEMENT
LORD EDWARD RAZZALL
and
JOHN ANTHONY MITCHELL trading as ARGONAUT ASSOCIATES
and
BOSTON FIDELITY LIMITED
and
PAYGARD INC, formerly TOTAL HORIZON INC
and
PAY2 LIMITED
and
ARGONAUT ASSOCIATES LIMITED
FLADGATE FIELDER
25 North Row
London W I K 6DJ
Tel: 020 7323 4747
Fax- 020 7629 4414
Ref: ELB/205W/W01
CONTENTS
1. Definitions and interpretations .........................................2
2. Relationship of the parties .............................................2
3. Conditions...............................................................3
4. Completion...........................................................3
5. Warranties and undertakings..........................................5
6. Further rights and obligations.......................................5
7. Exercise of powers and inconsistency.................................6
8. Administration - board of directors..................................6
9. Mutual covenants.....................................................9
10. Disposition..........................................................10
11. Pre-emption..........................................................10
12. Restraint of trade...................................................12
13. Termination..........................................................13
14. Confidentiality......................................................13
15. Successors and assigns...............................................13
16. Notice...............................................................13
17. Severance............................................................15
18. Arbitration..........................................................15
19. Governing law........................................................15
20. Counterparts.........................................................15
21. Merger provisions....................................................16
22. Further assurances...................................................16
23. Waiver...............................................................16
24. Variation of agreement...............................................16
Schedule 1
Definitions and interpretations...............................................17
DATE: July 2003
PARTIES:
(1) LORD EDWARD RAZZALL and JOHN ANTHONY MITCHELL, trading as ARGONAUT
ASSOCIATES c/o 2nd floor. 14-16 Regent Street, London SW1Y 4PH, United
Kingdom (Argonaut);
(2) BOSTON FIDELITY LIMITED c/o Asian Management Services, 111 North Bridge
Road, 18/01 Penninsula Plaza, Singapore 179098, Singapore (Boston);
(3) PAYGARD INC, formerly TOTAL HORIZON INC., c/o 8631 Terrance Drive, El
Ceritto, California, CA 04530 (Company):
(4) PAY 2 LIMITED c/o Exchange House, 54/58 Athol Street, Douglas, Isle of Man
IM1 I MD (Pay2); and
(5) ARGONAUT ASSOCIATES LIMITED c/o Popabasiliou House, P 0 Box 27007. 70 John
F Kennedy Avenue, Nicosia, Cyprus CY 1641 (AAC).
Preliminary
(A) The parties are parties to a heads of agreement, as varied, a deed of
variation dated June 12, 2003 under which the parties agreed to operate the
business known as Pay2 Card System and under which Boston and AAC would be
issued with Shares in the Company.
(B) Under the HOA, the parties agreed to enter into a shareholders' agreement,
regulating their respective interests and entitlements in, and in relation to,
the Company.
(C) The Shareholders wish to enter into this agreement to formally regulate
their relationship as shareholders in the Company.
1. Definitions and interpretations
The definitions and interpretative provisions in Schedule I apply to this
agreement.
2. Relationship of the parties
The parties acknowledge and agree that each of them is an independent
contracting party and that none of them has any authority or power for or on
behalf of the others to enter into any contracts, to pledge any credit, to incur
any liabilities, to assume any obligations or to make any warranties or
representations whatsoever other than in accordance with the terms of this
agreement and the bylaws of the Company.
3. Conditions
3.1 Completion is conditional upon the satisfaction or waiver of each of
the Conditions Precedent set out in clause 2.1 of the HOA.
3.2 The parties will use their best endeavors to ensure that the
Conditions Precedent, to the extent that they are not waived by the
parties, are satisfied by 30 September 2003. If by that date any
Condition Precedent has not been satisfied or waived, this agreement
other than clause 14 will terminate without any liability by any party
other than liability for a prior breach.
4. Completion
4.1 Subject to full satisfaction or waiver of the Conditions Precedent,
Completion will take place at 14-16 Regent Street, London SW1Y 4PH on
the Completion Date.
4.2 On the Completion Date the parties will procure that meetings of the
Company and the board of directors are held as are necessary to:
4.2.1 appoint John Mitchell and Lord Razzall as AAC Directors and Greg
Kennedy and Lindsay Sanford as Boston Directors;
4.2.2 appoint John Mitchell as chairman and Graham Newall as chief
executive officer, and
4.3 On the Completion Date:
4.3.1 Boston will subscribe unconditionally for Shares payment for
which will be made in installments as follows:
4.3.1.1 3,420,000 for US $750,000 representing a premium of US
$0.218 per Shore payable on completion;
4.3.1.2 2,916,471 for US $1,000,000 representing a premium of
US $0.342 per Share payable one calendar month from
completion;
4.3.1.3 2,916,471 for US $1,000.000 representing a premium of US
$0.342 per Shore payable two calendar months from
completion:
4.3.1. 2,916,471 for US $1,000,000 representing a premium of US
$0.342 per Shore payable three calendar months from
completion: and
4.3.1.5 3,645,588 for US $1,250,000 representing a premium of US
$0.342 per Share payable four calendar months from
completion.
The Shares will be issued on Completion to
Boston nit paid and held in trust until the
corresponding installment of consideration set out
above has been paid in cleared funds for the account
of the Company.
4.3.2 ______________ to MSL 5,700,000 Shares in satisfaction of
the fee owed to MSL for corporate finance services;
4.3.3 The parties will procure that the Company:
4.3.3.1 allots and issues credited as fully paid 15,815,000
Shares to Boston and 5,700,000 Shares to MSL:
4.3.3.2 enters the name of Boston in the register of members of
the Company as holder of the Shares subscribed by it
pursuant to clause 4.3.1;
4.3.3.3 enter the name of MSL in the register of members of the
Company as holder of the Shares referred to in clause 4.3.2;
4.3.3.4 issues share certificates to Boston and MSL in respect of
their Shares-, and
4.3.3.5 procures the resignation of the existing directors of the
Company to be effective offer the Company has been listed.
4.3.4 Boston and the Company will execute a license agreement in a form
to be agreed relating to the grant by Boston to the Company of a
20 year exclusive license to use the names of 1,000,000 Members
for the purpose only of marketing the Pay2Card System to them
(Boston License Agreement);
4.3.5 Boston and AAC will procure that the Company executes a
consultancy agreement for a term of three years from 1st October
2003 pursuant to which MSL Will be paid an annual fee of US
$150,000 (one hundred and fifty thousand US dollars) in
consideration- for providing general business and consultancy
services; and
4.3.6 Boston and AAC will procure that the Company executes a service
agreement between the Company and Graham Newall.
4.3.7 The Company will confirm its agreement to repay a loan of US
$1,200,000 made by AAC to the Company.
5. Warranties and undertakings
5.1 Pay2, AAC, Lord Razzall and John Mitchell, both as individuals
and as Argonaut, warrant to Boston that neither they nor any
shareholders of Pay2 or AAC or any Associates of Pay2 or AAC,
Pay2 shareholders, AAC shareholders or Argonaut have any interest
whatsoever in the share capital of the Company other than the
Shares held by them pursuant to clause 2.1 (c) of the HOA or this
agreement.
5.2 The Company warrants to Boston that the number of Shares in issue
as at the date of this agreement is 6,815,000 and the Company
undertakes not to issue any further Shares in the Company other
than pursuant to clause 2.1 (c) of the HOA and clause 4.3 of this
agreement without the prior written approval of Boston.
5.3 The Company undertakes to Boston to provide it and its advisers
with access to its books and records for the purpose of enabling
Boston to exercise its rights pursuant to this agreement and AAC
and Argonaut agree to use their best endeavours to cause the
Company to provide Boston with such access to the books and
records of the Company.
5.4 Pay2 warrants to Boston that it holds all necessary title and
interest in all Intellectual Property Rights in the Pay2 Card
System and that it holds all rights, title and interest in all
research and development on the Pay2 Cord System.
5.5 Argonaut, AAC and Pay2 warrant to Boston that all information
contained or referred to in this agreement (including the
schedules and appendices) is true and accurate in all respects
and none of Argonaut, AAC and Pay2 is aware of any other fact or
matter which renders any such information misleading because of
any omission, ambiguity or for any other reason.
6. Further rights and obligations
6.1 Boston agrees to introduce the Pay2 Card System to up to
1,000,000 Members and, with the consent of accepting Members,
will procure that those Members are signed up as Pay2 Card System
card members by the Company.
6.2 The Company will pay the following sums to Boston as and when a
Member is signed up as a Pay2 Card System member by the Company:
6.2.1 for each Member up to 150,000 Members, US $5;
6.2.2 for each Member from 150,001 to 1.000,000 Members, US $5,
and
6.2.3 for each Member in excess of 1,000,000. US $50 cents.
6.3 The records of the Members who are the subject of the Boston
License Agreement will be maintained in the Pay2 database in the
Isle of Man or anywhere else from time to time and those records
will at all times remain exclusively the property of the Company
until the termination or expiry of that Boston License Agreement.
6.4 The parties agree that the names of the Members introduced by
Boston or World Games Inc to the Company will at all times remain
the property of the owner. The parties agree not to use those
names in any form whatsoever other than pursuant to the Boston
License Agreement.
7. Exercise of powers and Inconsistency
7.1 Each of the Shareholders wit exercise all such powers as are
available to it, do all such acts and things and sign, execute
and deliver all such documents and instruments as may be
necessary or reasonably required to give full effect to the
provisions of this agreement.
7.2 The terms of this agreement will prevail notwithstanding any
inconsistency contained in the Articles of Association of the
Company or in any other document or agreement or arrangement
whatsoever other than an agreement executed by the Shareholders
which is clearly expressed to be supplemental to or in
substitution for this agreement.
8. Administration - board of directors
Authority of the Board
8.1 The Board may, to the extent permitted at law, at any time
appoint any person or/corporation, including the Shareholders, to
act in its stead and delegate to such person or corporation any
of the functions or obligations of the Board on such terms and
conditions as it determines.
8.2 Every decision of the Board upon any of the matters within its
power will be binding on all of the Shareholders as if the same
had been included in the provisions of this agreement at the time
of execution hereof.
8.3 The Shareholders will not act otherwise than in accordance with
the decisions made from time to time by the Board.
Constitution of the Board
8.4 The Board shall be constituted by a maximum of four Directors and
shall not be subject to further increase or reduction by the
Company in general meeting and Boston and AAC shall each by
notice in writing to the others be entitled to nominate two
Directors to the Board fin each case a Nomination). The Company
in general meeting shall not be entitled to remove or revoke the
appointment of any Director nominated in accordance With this
clause 8.4.
8.5 Neither Boston nor AAC shall nominate a Director who is not
acceptable to the other, provided that neither Boston nor AAC
shall unreasonably withhold its consent to the appointment by the
other of any such Director. The initial Nominations of Boston and
AAC are as set out in clause 4.2.
8.6 Either of Boston or AAC may, from time to time, revoke any
Nomination by that Shareholder (Revoking Shareholder), by giving
notice in writing of such revocation to the other, and in such
event a new Nomination may be made by the Revoking Shareholder in
replacement of the person or persons whose Nomination has been
revoked.
8.7 A Boston Director or an AAC Director will not be required to
retire from office but will remain as a Director of the Company
at the discretion of the relevant Shareholder.
Meetings of the Board
8.8 Unless otherwise mutually agreed from time to time, all meetings
of the Board shall be held in Paris.
8.9 Boston will pay the travel accommodation and out-of-pocket
expenses of the Boston Director and AAC will pay the travel
accommodation and out of pocket expenses of the AAC Director in
attending each meeting of the Board.
8.10 Each meeting of the Board shall be convened upon at least one
week's notice (Required Notice Period in writing. to all members
of the Board. given by the chairman or a Director specifying the
purpose, time and place of the meeting. A meeting may,
notwithstanding that it is called with a shorter notice period
than the Required Notice Period, be deemed to be duly caged if
such shorter period of notice is agreed to by each of the
Shareholders. Meetings of the Board of Directors shall be
convened at, least every four weeks or as otherwise determined
from time to time.
8.11 In the event that a Boston Director or an AAC Director foils to
offend at a meeting of the Board duly convened in accordance with
the
foregoing provisions Of this agreement, the meeting is to be rescheduled for the
some time and the some place and on the same day in the following month. or as
otherwise agreed between Boston and AAC.
8.12 A quorum for a meeting of the Board shall be two being one Boston
Director and one AAC Director.
8.13 A chairman shall preside over each duly convened meeting of the
Board and the chairman for each of the meetings for a period of
the lesser of two years from the date of this agreement or such
shorter period as he remains a Director (Initial Period) shall be
John Mitchell, after which time the position shall rotate to one
of the three remaining Directors determined by a meeting of the
Directors immediately prior to the expiration of the Initial
Period and for each meeting for the next succeeding [six month]
period the appointed Director shall preside as chairman over each
duly convened meeting of the Board and this process of
appointment shall then continue by rotation for the term of this
agreement.
8.14 The chairman shall forward an agenda specifying each of the
resolutions and questions to be determined at the next meeting to
each of the Board not less than 14 days before the meeting.
8.15 The chairman shall cause minutes of the meeting at which he or
she was chairman, to be kept and signed by the Directors present
at the said meeting and distributed to each of the Shareholders.
8.16 The chairman will not have a costing vote.
8.17 A minute signed by a Boston Director and an AAC Director in
accordance with clause 8.15 or on exchange of letters signed by a
Boston Director and an AAC Director confirming mutual agreement
on any question, shall be as effectual and binding on the parties
as an agreement reached and recorded at a duly convened meeting
of the Board.
Appointment of Chief Executive
8.18 Boston agrees that it will not seek to remove Graham Newall as
chief executive officer of the Company for a period of three
years from the date of this agreement.
9. Mutual covenants
9.1 Each of the Shareholders hereby covenants and agrees with the
others as follows, namely:
9.1.1 to be just and faithful to the other in all transactions
relating to the Company and to give a true account of the
same to it when and as often as some shall be reasonably
required;
9.1.2 upon every reasonable request being made of it, to inform
the others of all matters, accounts. writings and other
things which it may have become possessed of concerning the
Company;
9.1.3 to punctually pay and discharge their, respective present
and future separate debts and engagements and at all times
to indemnity and keep indemnified the others and the Company
from and against all losses and damages which may arise in
respect thereof and in respect of any breach of the
obligations imposed on the Shareholders and without in any
way limiting the generality of the foregoing, all losses and
damages which may arise from the Shareholder entering into
any contract, pledging any credits, incurring any
liabilities. assuming any obligations or making any
warranties or representations whatsoever for or on behalf of
the other Shareholder without the necessary authority or
power to do so-, and
9.1.4 immediately upon receipt of any monies belonging to the
Company, to pay such monies into the bank account of the
Company.
9.2 Each of the Shareholders will exercise their powers in relation
to the Company so as to ensure that all matters concerning the
running of the Company including matters to be decided by the
Board and matters to be decided by the shareholders of the
Company in general meeting will not be, resolved upon without the
agreement of each of Boston and Argonaut.
9.3 None of the Shareholders shall, without the consent and approval
of the other Shareholder in writing:
9.3.1 give any credits and/or lend any monies on behalf of the
Company to any person, firm, company or entity other than in
the ordinary course of business conducted in a normal and
proper manner,
9.3.2 except as herein provided, sell, assign, transfer,
mortgage, discharge, pledge, deal with or otherwise encumber
or dispose of any of its respective shares in the Company
without the written consent of the other Shareholders;
9.3.3 except as herein provided, assign, draw, accept or endorse
any negotiable instrument on account of the Company;
9.3.4 compound, release or discharge any debt which shall be due
or owing to the Company without receiving the full amount
thereof,
9.3.5 guarantee, become bailee, surety or security or any person,
firm, company or entity or do or knowingly suffer to be done
anything whereby the Company's business or property may be
endangered, attached or taken in execution;
9.3.6 incur any liabilities on behalf of the Company and/or
employ any of the monies and/or the effects thereof other
than in the ordinary course of business conducted in a
normal and proper manner.
10. Disposition
In consideration of the mutual covenants and obligations contained in this
agreement, the parties hereto acknowledge and agree that for the term of this
agreement, there shall be no sale, transfer, assignment or other disposal in any
manner whatsoever of any legal or beneficial interest in the Shares other than
pursuant to the provisions of this agreement and that any disposition shall be
of no effect unless and until the assignee or transferee consents and agrees in
writing to be bound by the terms of this agreement.
11. Pre-emption
If at any time during the term of this agreement any of the Shareholders (in
each case the Grantor) wishes to dispose of all or part of its Shares any of the
other Shareholders (in each case the Grantees) shall have the first right to
purchase the some upon the owing terms and conditions:
11.1 The Grantor shall give notice in writing to the Grantees (Sale
Notice) of its desire to sell all or part of its Shares
(Interest) on those terms and at the Price (as specified in
clause 11-7) upon which the Grantor is desirous of selling the
Interest. Every such Sale Notice shall remain open for acceptance
in whole or in part for 60 days from the date of receipt of the
Sale Notice and, if not so accepted, shall be deemed to be
declined as to the whole or balance of the Shares as the case may
be. Any such acceptance shall be made in writing addressed to the
Grantor (Purchase Notice).
11.2 Upon receipt of a Purchase Notice, a concluded contract of the
sale and purchase of the Shares specified in the Purchase Notice,
free from cat encumbrances. shall forthwith be constituted
between the Grantor and the Grantee on those terms and conditions
set out in this agreement and providing for settlement to take
place within 180 days from the date of giving of the Purchase
Notice by the Grantee to the Grantor or such other period of time
as shall be agreed upon by the parties in writing.
11.3 Any Shares which shall be declined, or deemed declined, by any of
the Grantees shall be offered in the some manner and proportions
and at the same price to those of the Grantees who have accepted
Shares originally offered to them and so on until oil the. Shares
have been accepted or it shall appear that none of the Grantees
is willing to take up any further Shores.
11.4 In the event that not all of the Shores have been accepted by the
Grantees, then the Grantor shall have the right within the period
of six calendar months from the date upon which 4 becomes
apparent that such Shares have not been accepted to sell those
Shores to any other person as it shall think fit at a price not
lower than the price as set out in the Sale Notice and upon terms
no more advantageous to the purchaser of the Interest than the
terms specified in the Sale Notice.
11.5 If after the expiration of the period referred to in clause
11.4, the Grantor wishes to sell the Shores referred to in that
clause 11.4 at a lower cash price. or on different terms and
conditions, it shall first make a fresh offer to the Grantees at
such lower price or upon such different terms and conditions in
accordance with the foregoing provisions of this section 9.
11.6 All notices shall be given, in accordance with the provisions of
clause 16.
11.7 The Grantor and the Grantees agree that the Price referred to in
clause 11.1, upon which the Grantor is desirous of selling the
interest, shall be the "market value" of the Interest at the date
of such offer of sale by the Grantor to the Grantees, such value
being the price at which the Grantor is prepared to sell the
interest to the public.
11.8 In the event of either:
11.8.1 the appointment of a receiver and/or manager or liquidator
to any of the Shareholders:
11.8.2 a change in the Effective Control of a Shareholder, then a
notice pursuant to clause 11.1 shall be deemed to have been
given by the relevant Shareholder of the Company and the
provisions of this clause 11 shall, mutatis mutandis, apply.
12. Non competition
12.1 In the event that:
12.1.1 a Shareholder (Seller) sells, transfers, assigns or
disposes of its Shares, or any part thereof, in the Company
otherwise than to a Related Corporation; or
12.1.2 as a direct or indirect result of a breach of the
obligations under this agreement by a Shareholder
(Defaulter), the Company is wound up or becomes subject to
external administration,
the Seller or the Defaulter (as the case may be) shall not operate or engage in
a business in competition with that conducted by the Company anywhere in the
world (Territory) for a period of one year (Restriction Period) commencing on
the Date of Completion of the sale, transfer, assignment or disposal of the
share or on the date on which the Company is wound up or first becomes subject
to external administration.
12.2 The parties hereto acknowledge that the Restriction Period and
the Territory are no greater than are reasonably required to
protect the goodwill, the business and Trade Secrets of the
Company and the parties hereto not being the Seller or the
Defaulter (as the case may be).
12.3 None of the Shareholders shall hold or acquire an interest in any
other business which operates in the Territory and which in any
way competes with or is similar in nature to the business of the
Company without first obtaining the written consent of the other
parties hereto.
13. Termination
13.1 This agreement shall continue in effect until terminated pursuant
to the provisions of this agreement or by mutual agreement
between the Shareholders.
13.2 If a Shareholder commits a material breach of any of its
obligations under this agreement, which breach is not remedied
within 28 days after notice requiring remedy has been given to
such Shareholder, then the other Shareholders may deem the
defaulting Shareholder to have offered to sell to the other
Shareholders oil of its or his Shares in the Company in
accordance with clause 11 hereof, in which case the provisions
of some shall, mutatis mutandis, apply.
14. Confidentiality
Each of the parties shall at all times:
14.1 maintain absolute confidentiality in relation to the Trade
Secrets and shall not divulge any Trade Secrets to any person
except to the extent necessary for the operation of the business
of the Company; and
14.2 not utilize the Trade Secrets for its own benefit or for the
benefit of any person other than the owner of the Trade Secrets.
15. Successors and assigns
The obligations and liabilities imposed and the rights and benefits conferred on
the parties under this agreement shall be binding upon and inure for the
respective parties and each of their respective legal personal representatives,
successors in title, transferees and permitted assigns provided however that the
aforesaid obligations and liabilities and rights and benefits shall not be sold.
assigned, transferred or otherwise dealt With or disposed of by any of the
parties except in accordance with the terms of this agreement or with the prior
written consent and approval of the other parties.
16. Notice
16.1 Any notice or other communication to or by any party shall be:
16.1.1 in writing and in the English language;
16.1.2 addressed to the address of the recipient shown in this
agreement or to such other address as It may have notified
the sender; and
16.1.3 signed by the party or by an Authorized Officer of the
sender.
16.2 In addition to any means authorized by low any communication may
be given by:
16.2.1 being personally served on a party;
16.2.2 being left at the party's current address for service;
16.2.3 being sent to the party's current address for service by
prepaid ordinary mail or if the address is outside the
country of the principal place of business to the sender by
prepaid airmail: or
16.2.4 facsimile to the party's current numbers for service.
16.3 A communication shall be deemed duly given or mode in the case
of:
16.3.1 delivery in person, when delivered;
16.3.2 delivery by post:
16.3.2.1 to an address in the some country as the country of
the principal place of business of the sender, on the
second Business Day after posting; or
16.3.2.2 in any other case on the tenth Business Day offer
posting; or
16.3.3 a facsimile upon a transmission report being printed by
the sender's facsimile machine stating that- the document
has been sent to the recipient's facsimile number; but if
delivery is not mode before 5.00 p.m. on a Business Day it
shall be deemed to be received on the next Business Day in
that place.
16.4 The addresses and numbers for service are initially:
Argonaut
Address: c/o 2nd Floor, 14-16 Regent Street, London SW 1 Y 4PY
Facsimile: 0207 976 1833
Attention: Lord Edward Timothy Razzall
Boston:
Address: Asian Management Services, 111 North Bridge Road, 18-
01 Peninsula Plaza, Singapore 179098, Singapore
Facsimile: +65 63336 0200
Attention: Duncan Merren
The Company:
Address. c/o Terrance Drive, El Ceritto, California CA 04530, USA
Facsimile: 001707 575 0583
Attention: Elizabeth Lehrer. company secretary
Pay2:
Address: c/o Exchange House, 54-58 Atholl Street, Douglas, Isle of
Man, IM1 I JD
Facsimile: 01624 616 175
Attention, Richard Minchin
AAC:
Address: c/o Popabasiliou House, PO Box 27007, 70 John F Kennedy
Avenue. Nicosia, Cyprus CY 1641
Facsimile: 00357 2493000
Attention: Karlos Zongoulos
16.5 A party may from time to time change its address or numbers for
service by notice to the other party.
17. Severance
If any provision of this agreement shall be or be determined to be illegal,
invalid. void or voidable the legality or validity of the remainder of this
agreement will not be affected and will continue in full force and effect.
18. Arbitration
18.1 In the event that of any time during the continuance of this agreement or
at any time thereafter, any doubt, difference, question or dispute whatsoever
(Dispute) arises between the parties, whether in relation to the interpretation
of this agreement or to any of the respective rights, benefits, obligations and
liabilities of any of the parties under this agreement or otherwise, then such
Dispute shall be referred for determination, under and pursuant to the
provisions of and conducted in accordance with the Arbitration Act 1996 by a
single arbitrator in London to be agreed between the parties or, foiling such
agreement within 30 days of a request by either party to appoint an arbitrator,
by an arbitrator appointed by the President for the time being. or next senior
officer available, of The Low Society of England and Wales. The decision of such
arbitrator will be final and binding on the parties.
18.2 Each party to any arbitration shall be entitled to legal representation at
the arbitration proceedings, and the arbitrator shall make his decision in
writing within one month after entering on the reference or on or before any
later date to which the arbitrator may enlarge the time for making the decision.
19. Governing law
This agreement is made and shall be governed by, construed in accordance with,
the lows of England and each of the parties irrevocably submits to the
jurisdiction of the courts of England.
20. Counterparts
This agreement may be executed in any number of counterparts and all such
counterparts token together shall be deemed to constitute one and the some
instrument.
21. Merger provisions
Notwithstanding completion of this agreement, all covenants, undertakings and
representations given or mode by any party under or by this agreement, and all
obligations of any party under this agreement which are of a continuing nature
or are not fully satisfied and discharged on completion, shall not merge on
completion and shall remain in hill force and effect.
22. Further assurances
Each party shall take all steps and do all such acts and execute all necessary
documents within their powers as may be reasonably required by any other party
to give effect to this agreement.
23. Waiver
23.1 A right in favor of a party under this agreement, subject to any
express provision of this agreement to the contrary, may be
waived prospectively or retrospectively by writing signed by that
party.
23.2 No other act. omission or delay by a party will constitute a
waiver of a right.
24. Variation of agreement
The parties acknowledge that the provisions of this agreement may need to be
considered more fully with the applicable low of the state of Nevada and in the
case of any conflict between this agreement and the laws of Nevada the laws of
Nevada* will prevail. The parties further agree that once they have considered
the legal advice relating to the laws of Nevada it may be necessary to produce a
supplemental agreement. This agreement may be varied or modified only by writing
executed by all of the parties.
Schedule 1
Definitions and Interpretations
(Clause 1)
1. The provisions of Schedule 1 apply to the interpretation of this agreement
including the schedules.
2. In this agreement, unless the subject or context requires otherwise the
following words and phrases have the following meanings:
Articles of Association the articles of association or constitution of the
Company.
Associate in relation to an individual, any spouse, son.
daughter, grandchild brother, sister or parent or
any company which is or may be directly or
indirectly controlled by any of them or by any
two or more of them and for the purpose of this
definition control has the meaning set out in
section 416 Income and Corporation Taxes Act
1988; and in relation to a company, any
subsidiary or holding company of a company
and any subsidiary of any holding company of
such company.
Authorized Officer of a party which is a corporation:
3. an employee of the party whose title contains either of the words "Director"
or "Manager";
4. a person performing the function of any of them:
5. a solicitor acting on behalf of the party; or
6. a person appointed by the party to act as an Authorized Officer for the
purposes of this agreement and notified to the others:
and an Authorized Officer of a party which is a partnership means any - partner
in the partnership.
Board the board of directors of the Company.
Boston Director a director appointed by Boston in accordance
with the Articles of Association of the Company and this agreement.
Boston License Agreement the license agreement referred to in clause 4.3.4.
Company Paygard Inc, formerly, Total Horizon Inc.
Completion completion of the transactions referred
to in clauses 4.2 and 4.3.
Completion Date the business day following the day on which all
of the Conditions Precedent are either satisfied
or waived.
Conditions Precedent the conditions precedent
referred to in clause 3.1 of this
agreement and set out in clause 2.1 of
the HOA.
Director a director of the Company.
Effective Control in relation to any party:
l. control of the composition of the Board of Directors of that party;
2. control of more than one halt of the voting power of that party;
3. control of more than one halt of the issued share capital of that party
(excluding any part thereof which carries no right to participate beyond a
specified amount in the distribution of either profit or capital);
4. where the party is a trustee of a unit trust, control of more than one half
of the issued units in the trust: and
5. in the case of a party being a trustee of a discretionary trust, the
additional replacement of any beneficiary to the class of beneficiaries of that
trust.
HOA the heads of agreement dated 10 July
2003 between the parties to this
agreement as attached to this agreement
as appendix 1.
Intellectual Property Rights all patents, utility models, know-how,
trademarks, service marks, trade names,
domain names, registered designs,
design rights, copyrights, database
rights or other similar industrial,
intellectual or commercial fight
subsisting anywhere in. the world and
all applications for any of them.
Members a member of the World Games
organization.
MSL Miramas Services Limited, a company
incorporated in Guernsey.
Pay 2 card System A digital electronic debit card
provided to the Members.
AAC Director a director appointed by AAC in
accordance with the Articles of
Association of the Company and this
agreement.
Quotation admission of the shores to trading on
the over the counter dealing facility
in the USA.
Related Corporation any other corporation that is deemed to
be related to a party hereto by virtue
of the provisions of any relevant
legislation in the United States of
America, England, the Isle of Man or
any other relevant jurisdiction as
amended from time to time, any
re-enactment thereof and any statute in
substitution therefore.
Shareholders AAC, Argonaut and Boston, and
Shareholder means either of them.
Shares a share of USUS $0.001 in the capital
of the Company.
Trade Secrets the method of operation of the Company:
design, formulae, patents, drawings, plans, processes,
procedure, contracts, agreements, financial details and
other documentation and information developed and/or used by
the Company and its employees for use in its business or
developed by a party and its employees for use in the
business; the names of the franchisees, customers, suppliers
and clients of the Company and/or details in relation to
such parties' characteristics, requirements and arrangements
with the Company and any related corporation: details of and
information relating to the current negotiations of the
Company and/or any related corporations with any of the
aforementioned parties and other trade secrets and
confidential information of those parties.
3. in this agreement, unless the subject or context requires otherwise:
3.1 words importing the singular shall mean and include the plural
and vice versa,
3.2 words including any one gender shall mean and include other
genders
and vice versa;
3.3 words importing natural persons shall mean and include
corporations and unincorporated associations and vice versa:
3.4 the headings are for convenience of reference only and shall not
be construed as affecting the meaning or interpretation of this
agreement;
3.5 all references in this agreement to any statutory enactment or
law shall mean and be construed as references to that enactment
or law as amended or modified or reenacted from time to time and
to the corresponding provisions or any similar enactment or more
of any other relevant jurisdiction;
3.6 all references in this agreement to sections, articles. clauses,
subclauses, paragraphs and schedules shall mean and be construed
as references to those sections, articles, clauses, subclauses,
paragraphs and schedules of this agreement.
Executed as an agreement by Lord Edward Razzall on behalf of Argonaut Associates
in the presence of.
Witness' signature:
Witness' name:
Address:
Occupation:
Executed as an agreement
by John Anthony Mitchell
on behalf of Argonaut Associates
in the presence of,
Witness' signature:
Witness' name:
Address:
Occupation:
Executed as an agreement
by Boston Fidelity Limited
Executed as an agreement
by Paygard, Inc.
Director
Executed as an agreement
by Pay2 Limited
Director
Executed as an agreement
by Argonaut Associates Limited
Director