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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-SB
GENERAL FORM FOR REGISTRATION OF SECURITIES
OF SMALL BUSINESS ISSUERS
Under Section 12(b) or 12(g) of the Securities Exchange Act of 1934
PUSH ENTERTAINMENT INC.
(Name of Small Business Issuer in its Charter)
DELAWARE 51-0384101
(State of Incorporation) (IRS Employee Identification No.)
Suite 555
1000-8th Avenue SW
Calgary, Alberta Canada T2P 3M7
(Address of Principal executive Offices)
(403) 297-1055
(Issuer's Telephone Number:)
Common Shares, $.001 par value per share
(Securities to be Registered Under Section 12(g) of the Act)
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TABLE OF CONTENTS
PART I
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PAGE
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Item 1. Description of Business 3
Item 2. Management's Discussion and Analysis or Plan of Operation 10
Item 3. Description of Property 13
Item 4. Security Ownership of Certain Beneficial Owners and Management 14
Item 5. Directors, Executive Officers, Promoters and Control Persons 15
Item 6. Executive Compensation 18
Item 7. Certain Relationships and Related Transactions 19
Item 8. Description of Securities 19
PART II
Item 1. Market Price and Dividends on the Registrant's
Common Equity and Other Stockholder Matters 19
Item 2. Legal Proceedings 20
Item 3. Changes in and Disagreements with Accountants 20
Item 4. Recent Sales of Unregistered Securities 20
Item 5. Indemnification of Directors and Officers 20
PART F/S
Index to Financial Statements 24
PART III
Item 1. Index to Exhibits 33
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PART I
ITEM 1. DESCRIPTION OF BUSINESS
A. THE COMPANY
Push Entertainment Inc. (the "Company") was incorporated under the laws
of the State of Delaware on January 7, 1998. The Company's address is Suite 555,
1000-8th Avenue SW, Calgary, Alberta, Canada, T2P 3M7. The Company's registered
office in the State of Delaware is 1209 Orange Street, Wilmington, Delaware
19801. Its telephone number is (403)297-1055 and its facsimile number is
(403)297-1059.
On January 7, 1998 the Company acquired all of the issued and
outstanding capital stock of Push Technologies Inc. (formerly 736145 Alberta
Inc.) an Alberta corporation incorporated on April 21, 1997 (the "Subsidiary").
The Subsidiary had entered into an Agreement dated June 4, 1997 (the
"E-Zone Agreement") with E-Zone Networks Inc., a Delaware Corporation
("E-Zone"), pursuant to which the Subsidiary agreed to purchase certain
technology and intellectual property (the "Technology") from E-Zone in
consideration of (1) the payment of $200,000 on or before March 31, 1998; and
(2) payment of an additional $160,500 for improvements made to the Technology.
Pursuant to an Assignment Agreement dated January 27, 1998 (1) the
Subsidiary assigned to the Company all of its right, title and interest in and
to the E-Zone Agreement and in and to the Technology; and (2) the Company agreed
to discharge the obligations of the Subsidiary under the terms of E-Zone
Agreement. The Company has since satisfied all of the Subsidiary's obligations
under the terms of the E-Zone Agreement.
The Company has concluded that in order to more efficiently provide and
make generally available current material information concerning its operations
to its stockholders, a voluntary filing of a registration statement on Form
10-SB pursuant to the Security Exchange Act of 1934, as amended, (the "Exchange
Act") is warranted. If the Company's reporting obligation under the Exchange Act
is terminated its intention would be to continue to disseminate an annual
report, including audited financial statements, to its stockholders.
The Technology consists of a suite of processes and proprietary
software which will facilitate the conversion of existing 2D film and video
content to a 3D format. See "Item 1. Description of Business - The Business of
the Company."
B. THE BUSINESS OF THE COMPANY
Following its acquisition of the Technology, the Company (1) has
continued to expend its resources on the development and enhancement of the
Technology; and (2) implemented limited marketing activities. However, as at
August 31, 1998 no revenues have been generated as a result of these marketing
efforts. E-Zone, the initial developer of the Technology, had not generated any
revenues from the Technology.
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1. THE TECHNOLOGY
The Technology includes the 3D Professional Workstation (the
"Workstation") which consists of a suite of functions designed for
post-production and digital imaging professionals. The Workstation significantly
improves the production process for creating stereoscopic 3D video, and when
complete, will generate high quality 3D moving images from existing 2D content.
The Technology is compatible with, and can be delivered on film,
videotape, digital versatile disk ("DVD") and CD-ROM. The Company has completed
feasibility studies of the 3D conversion process and has produced demonstration
segments based on alpha releases of the Workstation. The first release of the
Workstation is scheduled for the second quarter of 1999.
2. INTELLECTUAL PROPERTY
The Company has been assigned the rights in and to a certain patent
application pertaining to certain aspects of the Technology and will file
additional patent, as well as copyright, applications for the Company's
technologies and processes as and when management deems such applications are
timely, necessary, and advantageous.
3. COMPETITIVE PRODUCTS
Although there is a history of real time 2D to 3D conversion processes
such as those being developed by the Sanyo Corporation, the Company is aware of
only one other company (Xenotech Ltd., an Australian company) attempting to
develop a post production 3D conversion process. While the Company and Xenotech
Ltd. are developing similar and competitive processes, the Company believes that
the Technology will offer more and greater flexibility than the Xenotech Ltd.
process. Although the Xenotech process has been in development for a longer
period of time it has not yet been made commercially available. As both the
Technology and the Xenotech Ltd. process have yet to be brought to market the
Company is not able to assess the competitive features such as time and ease of
delivery and product pricing. However, the Company does believe that the
Technology will gain greater acceptance because of its ability to give the user
a wider range of artistic control.
Moreover, the entertainment, film, video and software industries are
intensely competitive and the Company competes, and will compete, with companies
having greater financial and technical resources. Therefore to the extent that
the Company is able to establish sales, revenues and profits there is no
assurance that it would be able to sustain such sales, revenues and profits.
Moreover, although not a major factor today, if and when the Company begins
achieving its objectives, larger, better financed companies in peripheral
businesses may be attracted to the Company's markets. They may be prepared to
spend large sums quickly to develop competitive products and to mount major
marketing campaigns. The Company is aware of this possibility and hopes to
establish itself as an industry leader early on. Time is of the essence and the
Company's financing and marketing programs are essential to minimize this risk.
4. ADVANTAGES OF THE TECHNOLOGY
The Technology has three significant advantages:
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(a) the market for the Technology is commercial
quality, off-line processing which allows manipulation of
specific images without distortion;
(b) the automated image object tracking capability of
the Technology speeds up the extraction of images from within
a scene by automatically tracking the image forward and
backward in time; and
(c) the Technology has been designed to aid in
enhancement and production and to become a part of the
creative aspect of film and video making. It provides the
editor with the unique ability to generate the desired final
product. For example, in order to give an object a 3D effect,
shading, texturing, rotations and other manipulations can be
controlled and combined into a dynamic operation.
5. POST PRODUCTION
The Technology has the capability of carrying out special effects film
and video editing by object manipulation and image enhancement. Images which
have been captured on film or video - a person or an object - can be extracted
on a scene by scene or a frame by frame basis. Through object recognition and
tracking the undesired elements are extracted from the source. The Technology
also allows the extracted objects to be manipulated in a variety of methods,
thereby allowing the image to be converted from 2D to 3D. In addition, it
completes and fills in the scene behind the extracted object.
6. POTENTIAL MARKET, SALES PLANS AND STRATEGIES
3D attractions, such as "Terminator II 3D" and "Honey I Shrunk the
Audience" located at Universal Studios Theme Parks, are experienced by 80% of
the patrons. For further example, IMAX has experienced substantial growth by
deploying 3D content in its theaters. The Company believes that video and DVD
rentals will soon include 3D titles, thereby providing a market for 3D enhanced
productions, including new releases and re-released existing product. The
Company also sees a market for its technology in the multi-media and computer
gaming industries and for use in upscale, sophisticated corporate presentations.
The Company believes that revenues can be achieved from post production
conversion services, box office percentages and royalties. Initially the Company
intends to use the Technology to provide editing services directly to customers;
however, the Company, if it deems it appropriate, will attempt to establish
industry alliances with potential industry partners for product and process
development, production and distribution agreements and to formalize such of
those alliances as may be advantageous to the Company. The Company plans to
provide conversion services to the film industry on a combination of fixed fee,
income sharing and royalty basis for the conversion of existing film libraries;
however, no pricing policy has been established. For corporate presentations the
Company may become involved directly on a for fee basis for larger presentations
and foresees either licensing advertising agencies to use the processes or
forming alliances to implement the business strategy. To date, the Company has
not effected any such industry alliances.
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C. RISK FACTORS ASSOCIATED WITH THE COMPANY AND ITS BUSINESS
The Company is engaged in the business of developing and marketing the
Technology which was acquired by the Subsidiary. As no market for the Technology
has been developed and as the Technology remains under development, the
Company's business is characterized by a number of significant risks which are
set forth below.
1. RECENTLY ORGANIZED COMPANY
The Company was only recently organized and has limited assets and
operating history. It has no record of commercial production, earnings or sales.
The Company, therefore, must be considered promotional and in its early
formative and development stage. There is no assurance that the Technology will
achieve commercial acceptance or, if it does, that a functionally equivalent
product will not be developed by competitors with access to significantly
greater resources to devote to research, development and marketing. There is
nothing at this time upon which to base an assumption that the Company's
business plan will prove successful, and there is no assurance that the Company
will be able to operate profitably.
2. NO SALES OR REVENUES AND LACK OF CASH FLOW
As noted, the Company is a new enterprise in the development stage,
with a very limited history. It has had no sales or revenues. It is impossible
to predict the timing of receipt or the magnitude of revenues from the marketing
of the Technology, or whether such revenues will be realized. Any material delay
in bringing the Technology to market could result in significant delays in the
generation of revenues. In view of the uncertainties that exist concerning the
ability of the Technology to achieve commercial acceptance, there can be no
assurance that the Company will be able to achieve or sustain sales and/or
profitability.
3. LACK OF CASH FLOW; ADDITIONAL FUNDING REQUIREMENTS
The Company has no source of operating cash flow. The Company has
limited financial resources. To the extent that additional funds are required,
the Company will seek to obtain such funds through equity and/or debt offerings.
There is no assurance that if additional funding were needed, that it would be
available to the Company on terms and conditions acceptable to it. Failure to
obtain such additional funding could result in delay or indefinite postponement
of the Technology to the market place or the ability to supply sufficient
product to the market place on a continual and profitable basis.
4. COMPETITION FROM LARGER COMPANIES
The entertainment, film, video and software industries are intensely
competitive and the Company competes and will compete with companies having
greater financial and technical resources. Therefore, to the extent that the
Company is able to establish sales, revenues and profits there is no assurance
that it would be able to sustain such sales, revenues and profits. Moreover,
although not a major factor today, if and when the Company begins achieving its
objectives, larger, better financed companies in peripheral businesses may be
attracted to the Company's markets. They may be prepared to spend large sums
quickly to develop competitive products and to mount major marketing campaigns.
The Company is aware of this possibility and hopes to establish itself as an
industry leader early on. Time is of the
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essence and the Company's financing and marketing programs are essential to
minimize this risk.
5. PRODUCT OBSOLESCENCE
The entertainment, film, video and software industries are
characterized by rapid and significant technological change, and the
introduction of new products and new services. The introduction of products
embodying new technologies, the emergence of new industry standards or changes
in either industry may adversely affect the Company's ability to sell the
Technology. The Company's ability to anticipate changes in technology, industry
standards and needs and to develop and introduce new (or enhance existing)
processes and products on a timely basis will be a significant factor in its
competitive position and growth prospects.
6. SALES AND DISTRIBUTION
The Company has yet to establish a significant distribution and support
network. Failure on the part of the Company to put into place an experienced and
effective marketing infrastructure in a timely manner, could act to delay or
negate the realization of anticipated revenues.
7. MARKET ACCEPTANCE
The viability of the Company is dependent upon the market acceptance of
the conversion of existing 2D content to 3D. There is no assurance that this
process will attain a level of market acceptance which will allow for
continuation and growth of its business operations. In addition, the Company
will need to develop new processes and products to maintain its operations in
the longer term. The development and launching of such processes and products
can involve significant expenditure. There can be no assurance that the Company
will have sufficient financial resources to fund such programs and whether such
undertaking will be commercially successful.
8. POTENTIAL FUTURE 144 SALES
Of the 50,000,000 authorized shares of the Common Stock of the Company,
there are presently issued and outstanding (or reserved for issuance) 18,550,105
shares; all of which, except for 2,522,581 shares, are "restricted securities"
as that term is defined under the Securities Act of 1933, as amended (the
"Act"), and in the future may be sold in compliance with Rule 144 of the Act,
pursuant to a registration statement filed under the Act, or other applicable
exemptions from registration thereunder. Rule 144 provides, in essence, that a
person holding restricted securities for a period of one year may sell those
securities in unsolicited brokerage transactions or in transactions with a
market maker, in an amount equal to one percent of the Company's outstanding
Common Stock every three months. Additionally, Rule 144 requires that an issuer
of securities make available adequate current public information with respect to
the issuer. Such information is deemed available if the issuer satisfies the
reporting requirements of Sections 13 or 15(d) of the Exchange Act and of Rule
15c2-11 thereunder. Rule 144 also permits, under certain circumstances, the sale
of shares by a person who is not an affiliate of the Company and who has
satisfied a two year holding period without any quantity limitation and whether
or not there is adequate current public information available. Investors should
be aware that sales under Rule 144, or pursuant to a registration statement
filed under the Act, may have a depressive effect on the market price of the
Company's Common Stock in any market that may develop for such shares.
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9. NO MARKET FOR THE COMPANY'S COMMON STOCK AND PENNY STOCK RULES.
There is no current trading market for the shares of the Company's
Common Stock and there can be no assurance that a trading market will develop,
or, if such a trading market does develop, that it will be sustained. The shares
of the Company's Common Stock, to the extent that a market develops for the
shares of the Company's Common Stock at all, of which there can be no assurance,
will likely appear in what is customarily known as the "pink sheets" or on the
NASD Bulletin Board, which may limit the marketability and liquidity of the
shares of the Company's Common Stock. Thus, stockholders may find it difficult
to sell their shares. To date, neither the Company nor anyone acting on its
behalf has taken any affirmative steps to request or encourage any broker/dealer
to act as a market maker for the Company's Common Stock. Further, there have
been no discussions or understandings, preliminary or otherwise, between the
Company or anyone acting on its behalf and any market maker regarding the
participation of any such market maker in the future trading market, if any, for
the Company's Common Stock.
Under Rule 15g-9 of the Exchange Act, a broker or dealer may not sell a
"penny stock" to, or effect the purchase of a penny stock by, any person unless:
(a) such sale or purchase is exempt from Rule 15g-9;
(b) prior to the transaction the broker or dealer has (1)
approved the person's account for transactions in penny stocks in
accordance with Rule 15g-9, and (2) received from the person a written
agreement to the transaction setting forth the identity and quantity of
the penny stock to be purchased; and
(c) the purchaser has been provided an appropriate disclosure
statement as to penny stock investment.
The United States Securities and Exchange Commission (the "Commission")
adopted regulations that generally define a penny stock to be any equity
security other than a security excluded from such definition by Rule 3a51-1.
Such exemptions include, but are not limited to (1) an equity security issued by
an issuer that has (i) net tangible assets of at least $2,000,000, if such
issuer has been in continuous operations for at least three years, (ii) net
tangible assets of at least $5,000,000, if such issuer has been in continuous
operation for less than three years, or (iii) average revenue of at least
$6,000,000 for the preceding three years; (2) except for purposes of Section
7(b) of the Exchange Act and Rule 419, any security that has a price of $5.00 or
more; and (3) a security that is authorized or approved for authorization upon
notice of issuance for quotation on the NASDAQ Stock Market, Inc.'s Automated
Quotation System. It is likely that shares of the Company's Common Stock,
assuming a market were to develop therefore, will be subject to the regulations
on penny stocks; consequently, the market liquidity for the Company's Common
Stock may be adversely affected by such regulations limiting the ability of
broker/dealers to sell the Company's Common Stock and the ability of
stockholders to sell their securities in the secondary market.
Moreover, the Company's shares may only be sold or transferred by its
stockholders in those jurisdictions in which an exemption for such "secondary
trading" exists or in which the shares may have been registered.
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10. INTELLECTUAL PROPERTY
The Company has been assigned the rights in and to certain patent
applications pertaining to the Technology and intends to file such other patent
applications with respect to Technology as it may deem advisable. No assurance
is given that the patents will be granted or that, even if granted, the
Technology does not infringe upon the patents of others. In the event of
infringement, the consequences to the Company could be materially adverse.
11. ADEQUATE LABOR AND DEPENDENCE UPON KEY PERSONNEL; NO EMPLOYMENT
AGREEMENTS
The Company will depend upon recruiting and maintaining qualified
personnel to staff its operations. The Company believes that such personnel are
currently available at reasonable salaries and wages. There can be no assurance,
however, that such personnel will always be available in the future. The
continuing development of the Technology has been almost entirely dependent on
the skills of management and certain key employees of the Company with which the
Company has no employment agreements. Loss of the services of any of this
management team and key employees could have a material adverse effect upon the
Company. See "Item 5. Directors, Executive Officers, Promoters and Control
Persons."
12. CONFLICTS OF INTEREST
From time to time certain of the directors and executive officers of
the Company may serve as directors or executive officers of other companies and,
to the extent that such other companies may participate in the industries in
which the Company may participate, the directors of the Company may have a
conflict of interest. In addition, the Company's dependence on directors and
officers who devote time to other business interests may create conflicts of
interest, i.e. that the fiduciary obligations of an individual to the other
company conflict with the individual fiduciary obligations of the Company and
visa versa. Directors and officers must exercise their judgment to resolve all
conflicts of interest in a manner consistent with their fiduciary duties to the
Company. In the event that such a conflict of interest arises at a meeting of
the directors of the Company, a director who has such a conflict will abstain
from voting for or against the approval of such a participation or such terms.
In appropriate cases, the Company will establish a special committee of
independent directors to review a matter in which several directors, or
management, may have a conflict. The Company is not aware of the existence of
any conflict of interest as described herein.
13. YEAR 2000 RISKS
Currently the Company does not rely on any computer programs that will
materially impact the operations of the Company in the event of a Year 2000
disruption. The Company has been advised by Apple Computers Inc., whose software
the Company has licensed for its operations, that such programs have been
specifically engineered to enable development of Year 2000 compliant
applications. However, like any other company, advances and changes in available
technology can significantly impact its business and operation. Consequently,
although the Company has not identified any specific year 2000 issue, the "Year
2000" problem creates risk for the Company from unforeseen problems in its own
computer systems and from third parties, including but not limited to financial
institutions, with whom it transacts business. Such failures of the Company
and/or third parties computer systems could have a material impact on the
Company's ability to conduct its business. See "Item 2. Managements Discussion
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and Analysis of Financial Condition or Plan of Operation."
14. FORWARD LOOKING STATEMENTS
This registration statement includes "forward-looking statements"
within the meaning of Section 27A of the Act and Section 21E of the Exchange
Act. All statements, other than statement of historical facts, included in this
registration statement, including, without limitation, the statements under and
located elsewhere herein regarding industry prospects and the Company's
financial position are forward-looking statements. Although the Company
believes that the expectations reflected in such forward-looking statements are
reasonable, it can give no assurance that such expectation will prove to have
been correct. Important factors that could cause actual results to differ
materially from the expectations ("cautionary statements") are disclosed in this
registration statement, including, without limitation, in conjunction with the
forward-looking statements included in this registration statement section
entitled "Risk Factors Associated with the Company and Its Business." All
subsequent written and oral forward-looking statements attributable to the
Company or persons acting on its behalf are expressly qualified in their
entirety by the cautionary statements. See "Item 2. Management's Discussion and
Analysis or Plan of Operation."
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OR PLAN OF OPERATION
A. OPERATIONS TO DATE
The Subsidiary entered into an Agreement dated June 4, 1997 (the
"E-Zone Agreement") with E-Zone Networks Inc., a Delaware Corporation ("E-Zone")
pursuant to which the Subsidiary agreed to purchase certain technology and
intellectual property (the "Technology") from E-Zone in consideration of (1) the
payment of $200,000 on or before March 31, 1998; and (2) payment of an
additional $160,500 for improvements made to the Technology.
Pursuant to an Assignment Agreement dated January 27, 1998 (1) the
Subsidiary assigned to the Company all of its right title and interest to the
E-Zone Agreement and in and to the Technology; and (2), the Company agreed to
discharge the obligations of the Subsidiary under the terms of E-Zone Agreement.
Up to August 31, 1998, the Company has expended $360,500 in satisfying
the Subsidiary's obligation under the E-Zone Agreement and the Company has
expended approximately $95,000 in the acquisition of capital assets including
computer hardware, office furnishings and equipment.
B. PLAN OF OPERATION
The Company plans to complete the commercialization of the software for
the Technology within the next twelve months. The initial marketing program for
the completed software will be to the large format (70mm) film industry. The
Company expects to be able to secure at least one contract during the second
quarter of 1999.
The Company has budgeted approximately one-half of its efforts and
resources over the next twelve months to research and the development of the
Technology.
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As at August 31, 1998 the Company had working capital of $84,000,
derived form the proceeds of the offer and sale of its Common Stock. See "Part
II. Item 4. Recent Sales of Unregistered Securities." The Company will require
additional funding, effected through equity and/or debt financing, in order to
meet its projected cash requirements through August 1999. The Company has no
understandings or agreements with any person regarding any such equity and/or
debt financing and no assurance can be given that the Company will be able to
obtain such additional financing on terms that it deems acceptable. See "Part I.
Item 1. Descriptions of Business - Risk Factors Associated with the Company and
Its Business."
The Company anticipates its cash requirements through August 31, 1999
to be as follows:
Research and Development $ 442,648
Sales & Marketing Activities 122,848
Capital Investments 122,000
General Administrative Expenses 387,792
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Total $1,075,288
==========
The Company anticipates making equipment purchases aggregating $74,000
during this period. However its primary focus will be on continued research and
development, as well as increased marketing activities so as to achieve initial
revenues. No assurance can be given that the amount budgeted for such activities
will be sufficient to achieve the Company's goals. If additional funds are
required the Company will need to explore the availability of such funds either
through the sale of equity and/or debt securities or borrowings. To the extent
that the Company engages in such financing activities, the Company's existing
stockholders and/or management may participate.
The Company has nine full time in house consultants and anticipates
hiring additional employees during the period ending August 31, 1999 as its
needs and resources permit.
C. YEAR 2000 ISSUES
The "Year 2000 problem", as it has come to be known, refers to the fact
that many computer programs use only the last two digits to refer to a year, and
therefore does not recognize a change in the first two digits. For example, the
year 2000 would be read as being the year 1900. If not corrected, this problem
could cause many computer applications to fail or create erroneous results.
The Company has modified and tested all of the critical applications of
its information technology ("IT"), the result of which is that all such critical
applications are now Year 2000 compliant. Moreover, the Company has been advised
by Apple Computers, Inc. whose software is licensed by the Company, that such
software has been specifically engineered to enable development of Year 2000
compliant applications. The Company believes that virtually all of the
non-critical applications of its IT are or will be made Year 2000 compliant
prior to January 1, 1999. The Company's analysis and program is directed by its
internal IT personnel or others with whom it transacts business. The total
amount of the payments made to date and to be made hereafter to any independent
consultants, are not expected to be material.
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Based on the Company's analysis to date, the Company believes that its material
non-IT systems are either Year 2000 compliant, or do not need to be made Year
2000 compliant in order to continue to function in substantially the same manner
in the Year 2000. The Company intends to continue its analysis of whether its
non-IT systems require any Year 2000 remediation. The Company's Year 2000
compliance work has not caused, nor does the Company expect that it will cause,
a deferral on the part of the Company of any material IT or non-IT projects.
However, there can be no assurance that any of the Company's vendors or
others with whom it transacts business, will be Year 2000 compliant prior to
such date. The Company is unable to predict the ultimate effect that the Year
2000 problem may have upon the Company, in that there is no way to predict the
impact that the problem will have nation-wide or world-wide and how the Company
will in turn be affected, and, in addition, the Company cannot predict the
number and nature of its vendors, customers or others with whom it transacts
business, including financial institutions, who will fail to become Year 2000
compliant prior to January 1, 2000. Significant Year 2000 difficulties on the
part of vendors, customers or others with whom it transacts business, including
financial institutions, could have a material adverse impact upon the Company.
The Company intends to monitor the progress of its vendors, customers or others
with whom it transacts business, including financial institutions, in becoming
Year 2000 compliant. The Company has not to date formulated a contingency plan
to deal with the potential non-compliance of vendors, customers and others with
whom it transacts business, including financial institutions, but will be
considering whether such a plan would be feasible.
D. FORWARD LOOKING STATEMENTS
This registration statement includes "Forward-Looking Statements"
within the meaning of Section 27A of the Securities Act and Section 21E of the
Exchange Act. Any statements that express or involve discussions with respect to
predictions, expectations, beliefs, plans, projections, objectives, assumptions
or future events or performance (often, but not always, using words or phrases
such as "expects" or "does not expect", "is expected", "anticipates" or "does
not anticipate", "plans", "estimates" or "intends", or stating that certain
actions, events or results "may", "could", "would", "might" or "will" be taken,
occur or be achieved) are not statements of historical fact and may be "forward
looking statements". Such statements are included, among other places in this
registration statement, in the sections entitled "Management's Discussion and
Analysis or Plan of Operation," "Description of Business" and "Description of
Property." Forward-looking statements are based on expectations, estimates and
projections at the time the statements are made that involve a number of risks
and uncertainties which could cause actual results or events to differ
materially from those presently anticipated. See "Risk Factors Associated with
the Company and Its Business." Although the Company believes that the
expectations reflected in such forward-looking statements are reasonable, it can
give no assurance that such expectations will prove to have been correct.
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ITEM 3. DESCRIPTION OF PROPERTY
All of the Company's tangible assets have been acquired over the last
eight months and were new at the time of acquisition by the Company. The Company
sub-leases 4,000 square feet of office and research premises, located at Suite
555, 1000-8th Avenue SW, Calgary, Alberta, Canada. The rental for the Company
premises is $12.25 gross per square foot per annum and are located in a building
which is about fifteen years old. The Company's premises are adequate for the
short term. The Company's commitment to the sub-landlord expires on December 31,
1998, at which time the Company anticipates that larger facilities will be
required. The Company is currently seeking out alternate premises to satisfy its
needs and will be looking to remain in the Calgary area. See "Part I Item 1.
Description of Business".
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ITEM 4. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth certain information regarding the
beneficial ownership of the Common Stock of the Company as of August 31, 1998,
(1) each person who is known by the Company to own beneficially more than five
percent (5%) of the Company's outstanding Common Stock; (2) each of the
Company's directors and officers; and (3) all directors and officers of the
Company as a group.
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SHARES OF
COMMON APPROXIMATE
STOCK PERCENTAGE
NAME OF BENEFICIALLY OF ISSUED
BENEFICIAL OWNER OWNED AND OUTSTANDING
<S> <C> <C>
Directors and Officers:
Danny Lowe 1,799,990(1)(3) 9.7%
Norman Hess 130,000(1) .7%
Todd Simpson 1,499,990(1)(4) 8.1%
Mark Holden 1,799,990(1)(5) 9.7%
Dan Matthews 1,799,990(2)(6) 9.7%
Ian Tweedie 100,000(2)(7) .5%
5% Stockholders:
Buchaneer Holdings Ltd. 1,290,000(1) 7.0%
Directors and Officers as
a Group (6 persons) 7,129,960 38.4%
</TABLE>
(1) Direct ownership
(2) Beneficial ownership
(3) Does not include 1,290,000 shares owned by a Bahamian corporate
foundation, as to which Mr. Lowe disclaims any direct or beneficial
interest but as to which certain members of Mr. Lowe's family and other
third parties may benefit.
(4) Does not include 750,000 shares owned by a Bahamian corporate
foundation as to which Dr. Simpson disclaims any direct or beneficial
interest but as to which members of Dr. Simpson's family and other
third parties may benefit.
(5) Does not include 573,000 shares owned by a Bahamian corporate
foundation as to which Mr. Holden disclaims any direct or beneficial
interest but as to which members of Mr. Holden's family and other third
parties may benefit.
(6) These shares are registered in the name of Abacus (Nominee) Limited -
M1636 as trustee for the Matthews Family Trust of which Mr. Matthews is
one of the discetionary beneficiaries.
(7) These shares are registered in the name of Baracuda Financial Corp., a
corporation controlled by Mr. Tweedie.
14
<PAGE> 15
ITEM 5. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL
PERSONS
The following persons are the directors and executive officers of the
Company:
<TABLE>
<CAPTION>
NAME AGE POSITION HELD TERM
<S> <C> <C> <C>
Danny D. Lowe 50 President, Director & Chairman of the Board Since 1/7/98
Norman R. Hess 51 Secretary/ Treasurer & Director Since 1/7/98
Todd G. Simpson 33 Vice President & Director Since 1/7/98
Mark H. Holden 40 Vice President & Director Since 1/7/98
Dan Matthews 33 Director Since 1/7/98
Ian Tweedie 49 Director Since 1/7/98
</TABLE>
All directors and officers of the Company are elected annually to serve
for one year or until their successors are duly elected and qualified.
The Company currently has nine full time personnel and is supported to
the extent required by outside consultants. Additional staff will be recruited
as required to support the Company's growth and development. All of the full
time personnel are contracted consultants. Key personnel also have equity
positions and have executed confidentiality and non-competition agreements.
Compensation levels are, and will continue to be commensurate with industry
standards with incentive programs extended to the key personnel.
DANNY D. LOWE
PRESIDENT, CHAIRMAN OF THE BOARD AND DIRECTOR
Since January, 1996 Mr. Lowe has been a director, President and Chief
Executive Officer of E-Zone and its subsidiary E-Zone Research and Development,
Inc. Mr. Lowe co-founded QSound Labs, Inc. (NASDAQ) in 1988 and served as an
officer and director thereof until January, 1996. Mr. Lowe was the inventor of
QSound's proprietary 3D audio technology, widely recognized as a standard in 3D
audio. QSound's technology has been licensed by Intel, Sega and NEC and used by
such recording artists as Sting, Madonna and Pink Floyd. E-Zone provides a
closed television network to the fitness industry and will be bringing
entertainment products to market this year designed specifically for the fitness
industry and which alleviate the boredom associated with the use of stationary
exercise equipment. Mr.
Lowe co-founded the Company.
TODD G. SIMPSON, PH.D.
VICE PRESIDENT, TECHNICAL DIRECTION & INTELLECTUAL PROPERTY, AND DIRECTOR
Dr. Simpson co-founded E-Zone in 1996, where he continues to serve as
Vice President,
15
<PAGE> 16
responsible for research and development, product design, engineering,
intellectual property and team building. Prior to joining E-Zone Dr. Simpson
worked in the telecommunications and multimedia industries in the areas of
management, research, software development and hardware design at QSound Labs,
Inc. and Alberta Government Telephones. Dr.Simpson received his doctorate from
the University of Calgary in software engineering, a field in which he has
published a number of articles and won several professional awards. Dr. Simpson
co-founded the Company and is responsible for technical and intellectual
property development.
MARK HOLDEN
VICE PRESIDENT, FILM & VIDEO ACQUISITION, AND DIRECTOR
Mr. Holden has been an independent financier and businessman for the
past five years and has broad experience in the film, video and post production
sectors. He was a consultant to Rainmaker Imaging, a state of the art digital
imaging post production facility located in Vancouver, British Columbia. Mr.
Holden has served on the board of directors of Image and Sound Research, a
Canadian Government sponsored agency, and has overseen the shooting and
production of various videos and films. Mr. Holden is responsible for the
acquisition of film and video content for the Company.
NORMAN R. HESS
SECRETARY/TREASURER AND DIRECTOR
Mr. Hess is the legal counsel and Secretary of the Company. He was
called to the Alberta Bar in 1972, and has been a sole practitioner carrying on
his practice in Calgary, Alberta, since 1982. Mr. Hess has held memberships on
the boards of a number of private, public and non-profit corporations and
organizations in Canada during his career.
DAN MATTHEWS
DIRECTOR
Mr. Matthews has been an independent financier since 1996. Prior
thereto Mr. Matthews was President and Chief Executive Officer of Opal Equities
L.L.C. (New York) heading up the Investment Banking and Corporate Finance
Divisions.
IAN TWEEDIE, C.A.
DIRECTOR
Since October 1996 Mr. Tweedie has been a director and President of
Digital Armor Inc. (NASD OTC). Prior thereto Mr. Tweedie was President and a
Director of Virtual Universe Corporation, a public company whose shares traded
on the Alberta Stock Exchange.
The following individuals, although not officers or directors, are
expected by the Company to make a significant contribution to its business:
16
<PAGE> 17
DAVID SPOONER, PH.D.
SENIOR SOFTWARE ARCHITECT
Dr. Spooner, age 34, has 10 years of experience in software engineering
and design. Dr. Spooner's Ph.D. was granted in computer science. Dr. Spooner's
thesis was programming language grammatics. Dr. Spooner's responsibilities with
the Company include the architectural design of the Technology.
LEN BRUTON, PH.D.
TECHNICAL CONSULTANT
Dr. Bruton, age 56, has since June, 1998 been Vice President Research
of the University of Calgary; prior thereto he was a Professor in the Faculty of
Engineering at the University of Calgary. In addition to his academic
responsibilities Dr. Bruton carries on research in the areas of digital video
and 3D filtering. Dr. Bruton is extensively published and is recognized
worldwide for his work in filter design and intellectual property.
During the past five years no director, executive officer, promoter or
control person of the Company:
(1) was the subject of any bankruptcy petition filed by or against any
business of which such person was a general partner or executive officer either
at the time of the bankruptcy or within two years prior to that time;
(2) was convicted in a criminal proceeding or is subject to a pending
criminal proceeding (excluding traffic violations and other minor offenses);
(3) was subject to any order, judgment, or decree, not subsequently
reversed, suspended or vacated, of any court of competent jurisdiction,
permanently or temporarily enjoining, barring, suspending or otherwise limiting
his involvement in any type of business, securities or banking activities; or
(4) was found by a court of competent jurisdiction (in a civil action),
the Commission or the Commodity Futures Trading Commission to have violated a
federal or state securities or commodities law.
17
<PAGE> 18
ITEM 6. SUMMARY COMPENSATION TABLE
The following table sets forth information concerning the compensation
of the named executive officers from April 21, 1997.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
Annual Compensation Long-Term Compensation
------------------------ ----------------------------------------------------
Awards Payments
---------------------------- ----------------------
Other Securities All
Year Annual Restricted Under- other
Name And or Compen- Stock Lying LTIP Compen-
Principal Position Period Salary Bonuses sation Award(s) Options/ Payouts sation
Ended ($) ($) ($) ($) SARs ($) ($)
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Danny D. Lowe 12/31/97 - - - - - - -
---------------------------------------------------------------------------------------------------
President(1) 8/31/98 - - 29,200 - - - -
- ------------------------------ ---------------------------------------------------------------------------------------------------
Todd G.Simpson(2) Ph.D. 12/31/97 - - - - - - -
---------------------------------------------------------------------------------------------------
Vice President 8/31/98 - - 24,800 - - - -
- ------------------------------ ---------------------------------------------------------------------------------------------------
Mark Holden(3) 12/31/97 - - - - - - -
---------------------------------------------------------------------------------------------------
Director 8/31/98 - - 22,500 - - - -
- ------------------------------ ---------------------------------------------------------------------------------------------------
Norman R. Hess(4) 12/31/97 - - - - - - -
---------------------------------------------------------------------------------------------------
Secretary/Treasurer/Director 8/31/98 - - 11,350 - - - -
- ------------------------------ ---------------------------------------------------------------------------------------------------
Dan Matthews 12/31/97 - - - - - - -
---------------------------------------------------------------------------------------------------
Director 8/31/98 - - - - - - -
- ------------------------------ ---------------------------------------------------------------------------------------------------
Ian Tweedie 12/31/97 - - - - - - -
---------------------------------------------------------------------------------------------------
Director 8/31/98 - - - - - - -
- ------------------------------------------------------------------------------------------------------------------------------------
Total - - 87,850 - - - -
====================================================================================================================================
</TABLE>
(1) Paid to T.I. - The Idea Company Ltd., a corporation controlled by Danny
D. Lowe.
(2) Paid to Quandri Inc., a corporation controlled by Todd G. Simpson.
(3) Paid to M. Holden Productions Ltd., a corporation controlled by Mark
Holden.
(4) Paid to Norman R. Hess Professional Corporation a corporation
controlled by Norman Hess.
The Company anticipates making additional payments to its officers and
directors, aggregating $175,280 through August, 1999. The Company does not have
any employee stock option or other compensatory plans.
18
<PAGE> 19
ITEM 7. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Mr. Lowe and Dr. Simpson are stockholders, officers and directors of
E-Zone from whom the Subsidiary acquired the Technology. Mr. Hess is a
stockholder and officer of E-Zone.
Through August 31, 1998, corporations controlled by certain officers
and directors have received fees aggregating $87,850. See "Part I. Item 6.
Executive Compensation."
ITEM 8. DESCRIPTION OF SECURITIES
COMMON STOCK
The Company is authorized to issue 50,000,000 shares of Common Stock of
which 18,550,105 shares were issued and outstanding as of August 31, 1998. Each
outstanding share of the Common Stock entitles the holder to one vote, either in
person or by proxy, on all matters that may be voted upon by the owners thereof
at meetings of the stockholders.
The holders of the Common Stock (1) have equal rights to dividends from
funds legally available therefor, when, and if, declared by the board of
directors of the Company; (2) are entitled to share ratably in all of the assets
of the Company available for distribution to the holders of the Common Stock
upon liquidation, dissolution or winding up of the affairs of the Company; (3)
do not have preemptive, subscription or conversion rights; and (4) are entitled
to one non-cumulative vote per share on all matters on which stockholders may
vote at all meetings of stockholders.
The holders of the Common Stock of the Company do not have cumulative
voting rights, which means that the holders of more than 50% of such outstanding
shares, voting for the election of directors, can elect all directors of the
Company if they so choose and, in such event, the holders of the remaining
shares will not be able to elect any of the Company's directors.
There are no shares of preferred stock issued and outstanding; there
are no options, warrants to purchase, or other securities convertible in to any
shares.
PART II
ITEM 1. MARKET PRICE OF AND DIVIDENDS ON THE REGISTRANT'S COMMON
EQUITY AND OTHER STOCKHOLDER MATTERS
There is no trading market for the Common Stock and there can be no
assurance that a trading market will develop, or, if such a trading market does
develop, that it will be sustained. To the extent that a market develops for the
Common Stock at all, of which there can be no assurance, it will likely appear
in what is customarily known as the "pink sheets" or on the NASD Bulletin Board,
which may limit the marketability and liquidity of the Company's Common Stock.
Thus, stockholders may find it difficult to sell their shares. To date, neither
the Company nor anyone acting on its behalf has taken any affirmative steps to
request or encourage any broker/dealer to act as a market maker for the
Company's Common Stock. Further, there have been no discussions or
understandings, preliminary or otherwise, between the Company or anyone acting
on its behalf and any market maker regarding the participation
19
<PAGE> 20
of any such market maker in the future trading market, if any, for the Company's
Common Stock. See "Part I. Item 1. Description of Business - Risk Factors
Associated with the Company and Its Business."
ITEM 2. LEGAL PROCEEDINGS
The Company is not a party to any litigation, and has no knowledge of
any threatened or pending litigation against the Company.
ITEM 3. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS
There have been no changes in or disagreements with the Company's
auditors.
ITEM 4. RECENT SALES OF UNREGISTERED SECURITIES
(a) Founders Shares
In January, 1998, an aggregate of 16,027,524 shares were
offered and sold for an aggregate consideration of $37,907.
(b) Rule 504 Shares
From May to August 1998, the Company offered and sold
2,522,581 shares for an aggregate cash consideration of
$861,290.
Except for 2,522,581 shares, such shares are "restricted securities,"
as that term is defined in the rules and regulations promulgated under the Act,
and are subject to certain restrictions regarding resale. Certificates
evidencing "restricted securities" will be endorsed and stamped with a
restrictive legend and will be subject to stop transfer orders.
The Company believes that each of the above-referenced transactions
were exempt from registration under the Act, pursuant to exemptions afforded by,
and the rules and regulations promulgated thereunder, including, but not limited
to, Rule 504 of Regulation D and Regulation S, as transactions by an issuer not
involving any public offering.
Except as hereinafter set forth there is no charter provision, bylaw,
contract, arrangement or statute under which any officer or director of the
Company is insured or indemnified in any manner against any liability which he
may incur in his capacity as such.
ITEM 5. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of The Delaware General Corporation Law, as amended,
provides for the indemnification of the Company's officers, directors and
corporate employees and agents under certain circumstances as follows:
20
<PAGE> 21
"INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS; INSURANCE
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding, by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such court shall deem
proper.
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorney's fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of the directors who were not parties to
such action, suit or proceeding, or (2) if such a quorum is not obtainable, or,
even if obtainable a quorum of disinterested director so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
21
<PAGE> 22
(e) Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of any
undertaking by or on behalf of such director to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses including attorneys'
fees incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement expenses provided by, or
granted pursuant to, the other subsections of this section shall not be deemed
exclusive of any other rights to which those seeking indemnification or
advancement expenses may be entitled under any bylaw, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
including (any constituent of a constituent) absorbed in a consolidation or
merger which, if separate existence had continued, would have had power and
authority to indemnify its directors, officers and employees or agents so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this section, reference to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involve services by, such director, officer, employee, or
agent with respect to an employee benefit plan, its participants, or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors, and administrators of such person."
22
<PAGE> 23
THE SECURITIES AND EXCHANGE COMMISSION'S POLICY ON INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Company pursuant
to any provisions contained in its Certificate of Incorporation, or by-laws, or
otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication of such
issue.
23
<PAGE> 24
PART F/S
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Auditor's Report to the Stockholders dated September 17, 1998 25
Comments by Auditors for U.S. Readers on Canada/U.S.
Reporting Conflicts Dated September 17, 1998 25
Consolidated Balance Sheet dated May 31, 1998
and December 31, 1997 26
Consolidated Statements of Operations and Deficit for the five month period
ended May 31, 1998 and for the period from the date of commencement
of operations on April 21, 1997 to December 31, 1997 27
Consolidated Statements of Cash Flow for the five month period ended May 31,
1998 and for the period from the date of commencement of operations on
April 21, 1997 to December 31, 1997 28
Notes to the Consolidated Financial Statements for the five month period
ended May 31, 1998 and for the period from the date of commencement of
operations on April 21, 1997 to December 31, 1997 29-32
</TABLE>
24
<PAGE> 25
AUDITORS' REPORT TO THE DIRECTORS
We have audited the consolidated balance sheets of Push Entertainment Inc. (a
Development Stage Enterprise) as at May 31, 1998 and December 31, 1997 and the
consolidated statements of operations and deficit and changes in cash flow for
the five month period ended May 31, 1998 and for the period from the date of
commencement of operations on April 21, 1997 to December 31, 1997. These
financial statements are the responsibility of the Corporation's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with Canadian generally accepted auditing
standards. Those standards require that we plan and perform an audit to obtain
reasonable assurance whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
In our opinion, these consolidated financial statements present fairly, in all
material respects, the financial position of the Corporation as at May 31, 1998
and December 31, 1997 and the results of its operations and the changes in its
financial position for the five month period ended May 31, 1998 and for the
period from the date of commencement of operations on April 21, 1997 to December
31, 1997 in accordance with generally accepted accounting principles in the
United States.
"KPMG"
Chartered Accountants
Calgary, Canada
September 17, 1998
COMMENTS BY AUDITORS FOR U.S. READERS ON CANADA U.S. REPORTING CONFLICTS
In the United States, reporting standards for auditors require the addition of
an explanatory paragraph following the opinion paragraph when there are
substantial uncertainties about the Corporation's ability to continue as a going
concern, as referred to in Note 1 to these consolidated financial statements.
Our report to the shareholders dated July 2, 1998 is expressed in accordance
with Canadian reporting standards which do not permit a reference to such
matters in the auditors' report when the facts are adequately disclosed in the
financial statements.
"KPMG"
Chartered Accountants
Calgary, Canada
September 17, 1998
25
<PAGE> 26
PUSH ENTERTAINMENT INC.
(a Development Stage Enterprise)
Consolidated Balance Sheet
May 31, 1998 and December 31, 1997
(Expressed in U.S. Dollars)
<TABLE>
<CAPTION>
May 31, December 31,
1998 1997
--------- ------------
Assets
<S> <C> <C>
Current assets:
Cash $ 18,984 $ 1
Accounts receivable 9,162 --
Subscriptions receivable (note 5) 286,728 --
Prepaid expenses 8,032 --
--------- ---------
322,906 1
Capital assets (note 3) 32,901 --
--------- ---------
$ 355,807 $ 1
========= =========
Liabilities and Shareholders' Equity
Current liabilities:
Accounts payable and accrued liabilities $ 63,812 $ --
Due to company under common control (note 4) 5,831 360,500
--------- ---------
69,643 360,500
Shareholders' equity:
Share capital (note 5) 877,204 1
Deficit accumulated during the development stage (591,040) (360,500)
-------- --------
286,164 (360,499)
Future operations (note 1)
--------- ---------
$ 355,807 $ 1
========= =========
</TABLE>
See accompanying notes to consolidated financial statements.
26
<PAGE> 27
PUSH ENTERTAINMENT INC.
(a Development Stage Enterprise)
Consolidated Statements of Operations and Deficit
(Expressed in U.S. Dollars)
<TABLE>
<CAPTION>
Period from date of
commencement of
Five month period operations on
ended April 21, 1997 to
May 31, 1998 December 31, 1997
----------------- -------------------
<S> <C> <C>
Expenditures:
Technology and product development $ 123,211 $ 360,500
General and administration 63,259 -
Business promotion and development 38,712 -
Depreciation 5,358 -
------------ -------------
230,540 360,500
------------ -------------
Net loss 230,540 360,500
Deficit, beginning of period 360,500 -
------------ -------------
Deficit, end of period $ 591,040 $ 360,500
============ =============
</TABLE>
See accompanying notes to financial statements.
27
<PAGE> 28
PUSH ENTERTAINMENT INC.
(a Development Stage Enterprise)
Consolidated Statements of Cash Flow
(Expressed in U.S. Dollars)
<TABLE>
<CAPTION>
Period from date of
commencement of
Five month period operations on
ended April 21, 1997 to
May 31, 1998 December 31, 1997
----------------- -------------------
Cash provided by (used in):
<S> <C> <C>
Operations:
Net loss $ (230,540) $ (360,500)
Item not involving cash:
Depreciation 5,358 -
Net changes in non-cash working capital:
Accounts receivable (9,162) -
Accounts payable and accrued liabilities 63,812 -
Prepaid expenses (8,032) -
Due to company under common control (note 4) (354,669) 360,500
------------ ------------
(533,233) -
Financing activity:
Issuance of share capital 590,476 1
Investing activities:
Acquisition of capital assets (38,259) -
Acquisition of subsidiary (1) -
------------ ------------
(38,260) -
------------ ------------
Increase in cash 18,983 1
Cash, beginning of period 1 -
------------ ------------
Cash, end of period $ 18,984 $ 1
============= =============
</TABLE>
See accompanying notes to consolidated financial statements.
28
<PAGE> 29
PUSH ENTERTAINMENT INC.
(a Development Stage Enterprise)
Notes to Consolidated Financial Statements, page 29
(Expressed in U.S. Dollars)
- --------------------------------------------------------------------------------
PUSH ENTERTAINMENT INC.
(a Development Stage Enterprise)
Notes to Consolidated Financial Statements
(Expressed in U.S. Dollars)
- --------------------------------------------------------------------------------
INCORPORATION AND BASIS OF PRESENTATION:
Push Entertainment Inc. (the "Corporation") was incorporated under the laws
of the State of Delaware on January 7, 1998. Effective January 27, 1998 the
Corporation acquired for cash consideration consisting of $1 all of the
issued outstanding capital stock of Push Technologies Inc. ("PTI"), a
company incorporated under the laws of Alberta, Canada. PTI was
incorporated as 736145 Alberta Inc. on April 21, 1997 with all capital
stock being issued to a provisional shareholder to hold until the
incorporation of its ultimate shareholder, which was to be the Corporation.
As a result, the Corporation has accounted for the operations of PTI on the
continuity of interests basis, as if PTI had always been owned by the
Corporation. The Corporation is in the business of developing,
manufacturing and distributing technologies for the conversion of 2D film
and video images into 3D content.
The consolidated financial statements include the accounts of the
Corporation and its wholly-owned subsidiary PTI.
These consolidated financial statements are presented in U.S. Dollars, and
are prepared in accordance with accounting principles generally accepted in
the United States.
1. FUTURE OPERATIONS:
These financial statements have been prepared on the basis of accounting
principles applicable to a going concern, which assume that the Corporation
will continue in operation for the foreseeable future and will be able to
realize its assets and discharge its obligations in the normal course of
operations.
The Corporation is in the development stage and has no history of
generating cash flow from operations which raises substantial doubt about
its ability to continue as a going concern. The Corporation is actively
pursuing various initiatives, most particularly the development, marketing
and production of its products and capabilities so as to achieve a
commercial level of operations, and the sourcing of additional financing.
The financial statements do not include any adjustments that might result
from the outcome of this uncertainty.
29
<PAGE> 30
PUSH ENTERTAINMENT INC.
(a Development Stage Enterprise)
Notes to Consolidated Financial Statements, page 30
(Expressed in U.S. Dollars)
2. SIGNIFICANT ACCOUNTING POLICIES:
(a) Capital assets:
Capital assets are recorded at cost. Depreciation is provided over the
estimated useful lives of the assets using the following methods and
annual rates:
Assets Basis Rate
Furniture and equipment Declining balance 20%
Computer equipment Declining balance 30%
(b) Technology and product development costs:
Technology and product research costs are expensed in the period
incurred.
(c) Deferred technology and product development:
Costs incurred in the development of new software products are
capitalized once technological and commercial feasibility has been
established, and are amortized over the life of the product once the
product is available for general release to customers. There have been
no costs capitalized to date.
(d) Income taxes:
The Corporation uses the liability method of accounting for income
taxes. The Corporation has not recognized in these financial statements
the potential benefits of income tax losses.
(e) Use of estimates:
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at the
date of the financial statements and the reported amounts of expenses
during the reported period. Actual results could differ from these
estimates.
30
<PAGE> 31
PUSH ENTERTAINMENT INC.
(a Development Stage Enterprise)
Notes to Consolidated Financial Statements, page 31
(Expressed in U.S. Dollars)
3. CAPITAL ASSETS:
<TABLE>
<CAPTION>
Accumulated Net book
Cost depreciation value
-------------- ------------- -------------
<S> <C> <C> <C>
Furniture and equipment $ 7,625 $ 763 $ 6,862
Computer equipment 30,634 4,595 26,039
-------------- ------------- -------------
$ 38,259 $ 5,358 $ 32,901
============== ============= =============
</TABLE>
4. RELATED PARTY TRANSACTIONS:
(a) During the five month period ended May 31, 1998 the Corporation was
charged $38,000 (1997 - $nil) for technology and product development
expenditures by related parties.
(b) During the five month period ended May 31, 1998 the Corporation was
charged $32,000 (1997 - $nil) for business promotion and development
expenditures by related parties.
(c) During the period from the date of commencement of operations on April
21, 1997 to December 31, 1997 the Corporation was charged $360,500 of
product development expenditures by a company under common control.
Related parties include directors, officers, and significant shareholders
of the Corporation and companies under their control.
5. SHARE CAPITAL:
(a) Authorized:
50,000,000 common shares with a par value of $.001 per share
5,000,000 preferred shares with a par value of $.001 per share
(b) Common shares issued and to be issued:
<TABLE>
<CAPTION>
Subscriptions
Number Amount Receivable
---------- ------------- -------------
<S> <C> <C> <C>
Balance, January 7, 1998 - $ - $ -
Issued:
For cash and subscriptions receivable 18,550,105 899,198 308,722
---------- ------------- -------------
Balance, May 31, 1998 18,550,105 $ 899,198 $ 308,722
========== ============= =============
</TABLE>
Subsequent to the end of the period, the Corporation collected $286,728
of subscriptions receivable, and has recognized this amount as
subscriptions receivable as at May 31, 1998. The remainder of the
subscriptions receivable are not included in share capital and
subscriptions receivable on the balance sheet, and will be recognized
when settled.
31
<PAGE> 32
PUSH ENTERTAINMENT INC.
(a Development Stage Enterprise)
Notes to Consolidated Financial Statements, page 32
(Expressed in U.S. Dollars)
6. FAIR VALUE OF FINANCIAL ASSETS AND LIABILITIES:
The fair value of the Corporation's financial assets and liabilities as at
May 31, 1998 approximate their carrying amounts, due to their short terms
to maturity.
7. INCOME TAXES:
The Corporation has available approximately $575,000 of income tax losses
and pools, which begin expiring in 2004, available to reduce future periods
taxable income. No benefit for these losses and pools has been recognized
in these financial statements.
8. UNCERTAINTY DUE TO THE YEAR 2000 ISSUE:
The Year 2000 Issue arises because many computerized systems use two digits
rather than four to identify a year. Date-sensitive systems may recognize
the year 2000 as 1900 or some other date, resulting in errors when
information using year 2000 dates is processed. In addition, similar
problems may arise in some systems which use certain dates in 1999 to
represent something other than a date. The effects of the Year 2000 Issue
may be experienced before, on, or after January 1, 2000, and, if not
addressed, the impact on operations and financial reporting may range from
minor errors to significant systems failure which could affect an entity's
ability to conduct normal business operations. It is not possible to be
certain that all aspects of the Year 2000 Issue affecting the Corporation,
including those related to the efforts of customers, suppliers, or other
third parties, will be fully resolved.
32
<PAGE> 33
PART III
INDEX TO EXHIBITS
2.1 Certificate of Incorporation dated January 7, 1998
2.2 Certificate of Correction dated January 23, 1998 to the Certificate of
Incorporation
2.3 Certificate of Amendment dated February 23, 1998 to the Certificate of
Incorporation
2.4 Certificate of Amendment dated March 11, 1998 to the Certificate of
Incorporation
2.5 By-laws
6.1 Consulting Agreement with David Spooner and Lambda Software Corporation
6.2 Consulting Agreement with Susan Hubele and White Line Communications Ltd.
6.3 Consulting Agreement with Dong Pan
6.4 Consulting Agreement with Jim Turner
6.5 Consulting Agreement with P. Randall Hess
6.6 Consulting Agreement with Brad Steckel
6.7 Consulting Agreement with Todd Reed and Reaction Software Inc.
6.8 Non-Disclosure and Non-Competition Agreement with David Spooner and Lambda
software Corporations
6.9 Non-Disclosure and Non-Competition Agreement with Susan Hubele and White
Line Communications
6.10 Non-Disclosure and Non-Competition Agreement with Dong Pan
6.11 Non-Disclosure and Non-Competition Agreement with Jim Turner
6.12 Non-Disclosure and Non-Competition Agreement with P. Randall Hess
6.13 Non-Disclosure and Non-Competition Agreement with Brad Steckel
6.14 Non-Disclosure and Non-Competition Agreement with Todd Reed
6.15 Non-Disclosure and Non-Competition Agreement with Mark Holden and M. Holden
Productions Ltd.
6.16 Technology Transfer Agreement dated June 4, 1997
6.17 Assignment Agreement dated January 27, 1998
27.0 Financial Data Schedules
33
<PAGE> 34
SIGNATURES
In accordance with Section 12 of the Securities Exchange Act of 1934, the
registrant has caused this registration statement to be signed on its behalf by
the undersigned, thereunder duly authorized.
Dated: September 30, 1998 Push Entertainment Inc.
By: /s/ Danny D. Lowe
----------------------------
Danny D. Lowe, President
34
<PAGE> 35
PUSH ENTERTAINMENT INC.
REGISTRATION STATEMENT
ON
FORM 10SB
INDEX TO EXHIBITS
Page
2.1 Certificate of Incorporation dated January 7, 1998 36
2.2 Certificate of Correction dated January 23, 1998
to the Certificate of Incorporation 39
2.3 Certificate of Amendment dated February 23, 1998
to the Certificate of Incorporation 40
2.4 Certificate of Amendment dated March 11, 1998
to the Certificate of Incorporation 41
2.5 By-laws 42
6.1 Consulting Agreement with David Spooner and
Lambda Software Corporation 62
6.2 Consulting Agreement with Susan Hubele and
White Line Communications Ltd. 69
6.3 Consulting Agreement with Dong Pan 76
6.4 Consulting Agreement with Jim Turner 82
6.5 Consulting Agreement with R. Randall Hess 88
6.6 Consulting Agreement with Brad Steckel 94
6.7 Consulting Agreement with Todd Reed and
Reaction Software Inc. 100
6.8 Non-Disclosure and Non-Competition Agreement
with David Spooner and Lambda software Corporations 107
6.9 Non-Disclosure and Non-Competition Agreement
with Susan Hubele and White Line Communications 111
6.10 Non-Disclosure and Non-Competition Agreement
with Dong Pan 115
6.11 Non-Disclosure and Non-Competition Agreement
with Jim Turner 119
6.12 Non-Disclosure and Non-Competition Agreement
with R. Randall Hess 123
6.13 Non-Disclosure and Non-Competition Agreement
with Brad Steckel 127
6.14 Non-Disclosure and Non-Competition Agreement
with Todd Reed 131
6.15 Non-Disclosure and Non-Competition Agreement
with Mark Holden and M. Holden Productions Ltd. 135
6.16 Technology Transfer Agreement dated June 4, 1997 139
6.17 Assignment Agreement dated January 27, 1998 152
27.0 Financial Data Schedules 155
35
<PAGE> 1
CERTIFICATE OF INCORPORATION
OF
PUSH ENTERTAINMENT INC.
1. The name of the corporation is: PUSH ENTERTAINMENT INC.
2. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of
Wilmington, County of New Castle. The name of its registered agent at
such address is The Corporation Trust Company.
3. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of Delaware.
4. The total number of shares of capital stock which the Corporation shall
have authority to issue is Thirty-five Million (35,000,000), divided
into Thirty Million (30,000,000) shares of common stock of the par
value of $.001 and Five Million (5,000,000) shares of preferred stock
of the par value of $.001 per share.
As to the preferred stock of the Corporation, the power to
issue any shares of preferred stock of any class or any series
of any class and designations, voting powers, preferences and
relative participating, optional or other rights, if any, or
the qualifications, limitations or restrictions thereof, shall
be determined by the Board of Directors.
Cumulative voting as provided for in Section 214 of Title 8 of
the Delaware Code shall not apply to this Corporation.
Preemptive rights as provided for the Section 102(b)(3) of Title 8 of
the Delaware Code shall not be granted and are hereby expressly denied.
5. The name and mailing address of the Incorporator is:
NAME MAILING ADDRESS
Danny D. Lowe 600, 520 - 5th Avenue SW
Calgary, Alberta, Canada
T2P 3R7
36
<PAGE> 2
6. The name and mailing address of each person who is to serve as a
director until the first annual meeting of the stockholders or until a
successor is elected and qualified is:
NAME MAILING ADDRESS
Danny D. Lowe 600, 520 - 5th Avenue SW
Calgary, Alberta, Canada
T2P 3R7
Todd G. Simpson 600, 520 - 5th Avenue SW
Calgary, Alberta, Canada
T2P 3R7
Norman R. Hess 600, 520 - 5th Avenue SW
Calgary, Alberta, Canada
T2P 3R7
Mark H. Holden 2397 Palmerston Avenue
West Vancouver, British Columbia
Canada,
V7V 2W2
The Board of Directors shall have sole authority to determine the
number of Directors serving on the Board, and may increase or decrease
the exact number of Directors from time to time by resolution duly
adopted by the Board. No decrease in the number of directors shall have
the effect of shortening the term of any incumbent Director.
7. The Corporation shall have perpetual existence.
8. The Corporation shall be managed by the Board of Directors, which shall
exercise all powers conferred under the laws of the State of Delaware.
The Board of Directors shall have the authority to make, alter or
repeal the Bylaws of the Corporation.
9. Elections of the directors need not be by written ballot unless the
Bylaws of the Corporation shall so provide.
10. Meetings of stockholders may be held within or without of the State of
Delaware, as the Bylaws may provide. The books of the Corporation may
be kept (subject to any provision contained in the statutes) outside of
the State of Delaware at such place or places as may be designated from
time to time by the Board of Directors or in the Bylaws of the
Corporation.
37
<PAGE> 3
11. No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director; provided, however, that nothing contained
herein shall eliminate or limit the liability of a director of the
Corporation to the extent provided by applicable laws (i) for any
breach of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve international misconduct of knowing violation of law, (iii) for
authorizing the payment of a dividend or repurchase of stock, or (iv)
for any transaction from which the director derived an improper
personal benefit. The limitation of liability provided herein shall
continue after a director has ceased to occupy such position as to acts
or omissions occurring during such director's term or terms of office.
All references in this paragraph 11 to a director shall also be deemed
to refer to such other person or persons, if any, who exercise or
perform any of the powers or duties otherwise conferred or imposed upon
the Board of Directors.
12. The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the
manner now or hereinafter prescribed by statute, and all rights
conferred upon stockholders herein are granted subject to this
reservation.
The undersigned, being the incorporator herein before named, for the
purpose of forming a corporation pursuant to the General Corporation
Law of the State of Delaware, does hereby declare and certify that this
is my act and deed and the facts herein stated are true, and
accordingly have hereunto set my hand this 7th day of January, 1998.
----------------------------
DANNY D. LOWE
INCORPORATOR
38
<PAGE> 1
CERTIFICATE OF CORRECTION TO
CERTIFICATE OF INCORPORATION OF
PUSH ENTERTAINMENT INC.
PUSH ENTERTAINMENT INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, HEREBY
CERTIFIES THAT:
1. The name of the Corporation is PUSH ENTERTAINMENT INC.
2. A Certificate of Incorporation ("the Certificate") dated the 7th day
of January, 1998, was filed in the office of the Secretary of State of
the State of Delaware on January 7, 1998. The Certificate requires
correction as permitted by Section 103(f) of the General Corporation Law
of the State of Delaware, to correct a typographical error and to add
certain restrictions on the transfer of the shares of the capital stock
of the Corporation and to limit the number of stock holders.
3. Section 10 of the Certificate is corrected as follows:
10. Meetings of stockholders may be held within or without the
State of Delaware, as the Bylaws may provide. The books of the
Corporation may be kept (subject to any provision contained in
the statutes) outside the State of Delaware at such place or
places as may be designated from time to time by the Board of
Directors or in the Bylaws of the Corporation.
4. Section 13 is to be added to the Certificate as follows:
13. No shares of the capital stock of the Corporation shall be
transferred without the prior consent of a majority of the
directors of the Corporation, such consent to be expressed either
by resolution or by a signed instrument or instruments in
writing.
5. Section 14 is to be added to the Certificate as follows:
14. The number of stockholders of the Corporation, exclusive of
persons who are in the employment of the Corporation and
exclusive of persons, having been formerly in the employment of
the Corporation, were while in that employment, and have
continued after the termination of that employment to be
stockholders of the Corporation, is limited to not more than
fifty (50), two (2) or more persons who are the joint registered
owners of one (1) or more shares being counted as one (1)
stockholder.
6. Section 15 is to be added to the Certificate as follows:
15. Any invitation to the public to subscribe for or purchase the
Corporation's securities is prohibited.
IN WITNESS WHEREOF said PUSH ENTERTAINMENT INC. has caused this Certificate of
Correction to be signed by its incorporator this 23rd day of January, 1998.
/s/ Danny D. Lowe
---------------------------------
Danny D. Lowe
INCORPORATOR
39
<PAGE> 1
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION OF
PUSH ENTERTAINMENT INC.
PUSH ENTERTAINMENT INC., a corporation organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, HEREBY CERTIFIES
THAT:
1. The name of the Corporation is PUSH ENTERTAINMENT INC.
2. A certificate of Incorporation ("the Certificate") dated the
7th day of January, 1998, was filed in the office of the
Secretary of State of the State of Delaware on January 7,
1998. Pursuant to a unanimous resolution passed by the
Incorporator and provisional and sole shareholder of the
Corporation the following amendment to the Certificate was
adopted as permitted by Section 242 of the General Corporate
Law of the State of Delaware.
3. Section 4 of the Certificate is amended to read as follows:
The total number of shares of the capital stock which the
Corporation shall have authority to issue is Fifty-five
Million (55,000,000), divided into Fifty Million (50,000,000)
shares of common stock of the par value of $.001 per share and
Five Million (5,000,000) shares of preferred stock of the par
value of $.001 per share.
As to the preferred stock of the Corporation, the power to
issue any shares of preferred stock of any class or any series
of any class and designations, voting powers, preferences, and
relative participating, optional or other rights, if any, or
the qualifications, limitations or restrictions thereof, shall
be determined by the Board of Directors.
Cumulative voting as provided for in Section 214 of Title 8 of
the Delaware Code shall not apply to this Corporation.
Preemptive rights as provided for in Section 102(b)(3) of
Title 8 of the Delaware Code shall not be granted and are
hereby expressly denied.
IN WITNESS WHEREOF the said PUSH ENTERTAINMENT INC. has caused this Certificate
of Amendment to be signed by its incorporator and provisional and sole
shareholder this 23rd day of February, 1998.
-------------------------
DANNY D. LOWE
SOLE SHAREHOLDER AND
INCORPORATOR
40
<PAGE> 1
CERTIFICATE OF AMENDMENT TO
THE CERTIFICATE OF INCORPORATION OF
PUSH ENTERTAINMENT INC.
PUSH ENTERTAINMENT INC., a corporation organized pursuant to and existing under
and by virtue of the General Corporation Law of the State of Delaware, HEREBY
CERTIFIES:
1. The name of the Corporation is PUSH ENTERTAINMENT INC.
2. A Certificate of Incorporation ("the Certificate") dated the
7th day of January, 1998, was filed in the office of the
Secretary of State of the State of Delaware on January 7,
1998. The Certificate was corrected by a Certificate of
Correction dated the 23rd day of January, 1998, and filed with
the office of the Secretary of State of the State of Delaware
on January 23, 1998. The certificate was amended by a
Certificate of Amendment dated the 23rd day of February, 1998,
and filed with the office of the Secretary of State of the
State of Delaware on the 24th day of February, 1998.
3. The Certificate is amended by deleting therefrom Section 14.
4. The Certificate is further amended by deleting therefrom
Section 15.
IN WITNESS WHEREOF the said PUSH ENTERTAINMENT INC. has caused this Certificate
of Amendment to be signed by its incorporator and provisional shareholder this
11th day of March, 1998.
---------------------------
Danny D. Lowe
Sole Shareholder and
Incorporator
41
<PAGE> 1
BYLAWS
OF
PUSH ENTERTAINMENT INC.
ARTICLE I
OFFICES
1. Registered Office.
The registered office of the Corporation shall be in the City of
Wilmington, County of New Castle, State of Delaware.
2. Other Offices.
The Corporation may also have offices at such other places both within
and without the State of Delaware as the Board of Directors may from time to
time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
1. Annual Meeting.
The annual meeting of the stockholders shall be held on such date as the Board
of Directors shall determine, for the purpose of electing Directors and for the
transaction of such other business as may properly come before the meeting. If
the election of Directors is not held on the day designated by the Board of
Directors for any annual meeting of the stockholders, or any adjournment
thereof, the Directors shall cause the election to be held at a special meeting
of the stockholders as soon thereafter as convenient.
2. Special Meetings.
Special meetings of the stockholders may be called for any purpose or
purposes at any time by the Board of Directors, Chairman of the Board or the
President, and shall be called by the Chairman of the Board or the President at
the request of the holders of not less than one-tenth (1/10) of all outstanding
stock of the Corporation entitled to vote at such meeting, or otherwise as
provided by the Delaware General Corporation Law and Section 12 of Article III
of these Bylaws. Such request shall state the purpose or purposes of the
proposed meeting.
42
<PAGE> 2
3. Place of Meetings.
Annual and special meeting of the stockholders shall be held at the
principal office of the corporation unless otherwise specified in the notice
calling any such meeting, or in the event of a waiver of notice of such meeting,
in such waiver of notice.
4. Notice of Meeting.
Written notice stating the place, date and hour of the meeting and, in
the case of a special meeting, the purpose or purposes for which the meeting is
called, shall be delivered to each stockholder of record entitled to vote at
such meeting not less than ten (10) nor not more than sixty (60) days before the
date of the meeting. Notice may be given either personally or by first class,
certified or registered mail. If mailed, notice shall be deemed to be delivered
when mailed to the stockholders at his or her address as it appears on the stock
transfer books of the Corporation. Notice need not be given of an adjourned
meeting if the time and place thereof are announced at the meeting at which the
adjournment is taken, provided that such adjournment is for less than thirty
(30) days and further provided that a new record date is not fixed for the
adjourned meeting, in either of which events, written notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at such
meeting. At any adjourned meeting, any business may be transacted which might
have been transacted at the meeting as originally noticed. A written waiver of
notice, whether given before or after the meeting to which it relates, shall be
equivalent to the giving of notice of such stockholder or stockholders signing
such waiver. Attendance of a stockholder at a meeting shall constitute a waiver
of notice of such meeting, except when the stockholder attends for the express
purpose of objecting to the transaction of any business because the meeting is
not lawfully called or convened.
5. Fixing Date for Determination of Stockholders Record.
In order that the Corporation may determine the stockholders entitled
to notice of and to vote at any meeting of stockholders or any adjournment
thereof, or to express consent to corporate action in writing without a meeting,
or to receive payment of any dividend or other distribution or allotment of any
rights, or to exercise any rights in respect of any other change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of
Directors may fix in advance a record date, which shall not be more than sixty
(60) nor less than ten (10) days prior to the date of such meeting or such
action, as the case may be. If the Board has not fixed a record date for
determining the stockholders entitled to notice of and to vote at a meeting of
stockholders, the record date shall be at close of business on the day next
preceding the day on which notice is given, or if notice is waived, at the close
of business on the day next preceding the day on which the meeting is held. If
the Board has not fixed a record date for determining the stockholders entitled
to express consent to corporate action in writing without a meeting, when no
prior action by the Board is necessary, the record date shall be the day on
which the first written consent is expressed by any stockholder. If the Board
has not fixed a record date for determining stockholders for any other purpose,
the record date shall be at
43
<PAGE> 3
the close of business on the day on which the Board adopts the resolution
relating thereto. A determination of stockholders of record entitled to notice
of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.
6. Record of Stockholders.
The Secretary or other officer having charge of the stock transfer
books of the Corporation shall make, or cause to be made, at least ten (10) days
before every meeting of stockholders, a complete record of the stockholders
entitled to vote at a meeting of stockholders or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
registered in the name of each stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, during
ordinary business hours, for a period of at least ten (10) days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof and may be inspected by any stockholder who is present.
7. Quorum and Manner of Acting.
At any meeting of the stockholders, the presence, in person or by
proxy, of the holders of a majority of the outstanding stock entitled to vote
shall constitute a quorum. All shares represented and entitled to vote on any
single subject matter which may be brought before the meeting shall be counted
for quorum purposes. Only those shares entitled to vote on a particular subject
matter shall be counted for the purpose of voting on that subject matter.
Business may be conducted once a quorum is present and may continue to be
conducted until adjournment sine die, notwithstanding the withdrawal or
temporary absence of stockholders leaving less than a quorum. Except as
otherwise provided in the Delaware General Corporation Law, the affirmative vote
of the holders of a majority of the shares of stock then represented at the
meeting and entitled to vote thereat shall be the act of the stockholders;
provided, however, that if the shares of stock so represented are less than the
number required to constitute a quorum, the affirmative vote must be such as
would constitute a majority if a quorum were present, except that the
affirmative vote of the holders of a majority of the shares of stock then
present is sufficient in all cases to adjourn a meeting.
8. Voting of Shares of Stock.
Each stockholder shall be entitled to one vote or corresponding
fraction thereof for each share of stock or fraction thereof standing in his,
her or its name on the books of the Corporation on the record date. A
stockholder may vote either in person or by proxy executed in writing by the
stockholder or by his, her or its duly authorized attorney in fact, but no such
proxy shall be voted or acted upon after three (3) years from the date of its
execution unless the proxy provides for a longer period. Shares of its own stock
44
<PAGE> 4
belonging to the Corporation or to another corporation, if a majority of the
shares entitled to vote in the election of directors of such other corporation
is held, directly or indirectly, by the Corporation, shall neither be entitled
to vote nor counted for quorum purposes; provided, however, that the foregoing
shall not limit the right of any corporation to vote stock, including but not
limited to its own stock, when held by it in a fiduciary capacity. Shares of
stock standing in the name of another corporation may be voted by such officer,
agent or proxy as the bylaws of such other corporation may prescribe or, in the
absence of such provision, as the board of directors of such other corporation
may determine. Unless demanded by a stockholder present in an or by proxy at any
meeting of the stockholders and entitled to vote thereat, or unless so directed
by the chairman of the meeting, the vote thereat on any question need not be by
ballot. If demand or direction is made, a vote by ballot shall be taken, and
each ballot shall be signed by stockholder voting, or by his or her proxy, and
shall state the number of shares voted.
9. Organization.
At each meeting of the stockholders, the Chairman of the Board, or, if
he or she is absent therefrom, the President, or, if he or she is absent
therefrom, another officer of the Corporation chosen as chairman of such meeting
by stockholders holding a majority of the shares present in on or by proxy and
entitled to vote thereat, or, if all the officers of the Corporation are absent
therefrom, a stockholder of record so chosen, shall act as chairman of the
meeting and preside thereat. The Secretary, or, if he or she is absent from the
meeting or is required pursuant to the provisions of this Section 9 to act as
chairman of such meeting, the person (who shall be an Assistant Secretary, if
any and if present) whom the chairman of the meeting shall appoint shall act as
secretary of the meeting and keep the minutes thereof.
10. Order of Business.
The order of business at each meeting of the stockholders shall be
determined by the chairman of such meeting, but the order of business may be
changed by the vote of stockholders holding a majority of the shares present in
person or by proxy at such meeting and entitled to vote thereat.
11. Voting.
At all meetings of stockholders, each stockholder entitled to vote
thereat shall have the right to vote, in person or by proxy, and shall have, for
each share of stock registered in his, her or its name, the number of votes
provided by the Certificate of Incorporation in respect of stock of such class.
Stockholders shall not have cumulative voting rights with respect to the
election of Directors.
12. Action By Stockholders Without a Meeting.
Any action required or permitted to be taken at a meeting of the
stockholders may be taken without a meeting, without notice and without a vote,
if a consent in writing,
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setting forth the action so taken, is signed by the holders of outstanding stock
having not less than the number of votes that would have been necessary to
authorize such action at a meeting at which all shares entitled to vote were
present and voted. Prompt notice of the taking of any such action shall be given
to any such stockholders entitled to vote who have not so consented in writing.
ARTICLE III
BOARD OF DIRECTORS
1. General Powers.
The business and affairs of the Corporation shall be managed by the
Board of Directors.
2. Number, Term of Office and Qualifications.
Subject to the requirements of the Delaware General Corporation Law,
the Board of Directors may from time to time determine the number of Directors.
Until the Board shall otherwise determine, the number of Directors shall be that
number comprising the initial Board as set forth in the Certificate of
Incorporation. Each Director shall hold office until his or her successor is
duly elected or until his or her earlier death or resignation or removal in the
manner hereinafter provided. Directors need not be stockholders.
3. Place of Meeting.
The Board of Directors may hold its meetings at such place or places as
it may from time to time by resolution determine or as shall be designated in
any notices or waivers of notice thereof. Any such meeting, whether regular or
special, may be held by conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting in such manner shall constitute presence in
person at such meeting.
4. Annual Meetings.
As soon as practicable after each annual election of Directors and on
the same day, the Board of Directors shall meet for the purpose of organization
and the transaction of other business at the place where regular meetings of the
Board of Directors are held, and no notice of such meeting shall be necessary in
order to legally hold the meeting, provided that a quorum is present. If such
meeting is not held as provided above, the meeting may be held at such time and
place as shall be specified in a notice given as hereinafter provided for a
special meeting of the Board of Directors, or in the event of waiver of notice
as specified in the written waiver of notice.
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5. Regular Meetings.
Regular meetings of the Board of Directors may be held without notice
at such times as the Board of Directors shall from time to time by resolution
determine.
6. Special Meetings, Notice.
Special meetings of the Board of Directors shall be held whenever
called by the Chairman of the Board or a majority of the Directors at the time
in office. Notice shall be given, in the manner hereinafter provided, of each
such special meeting, which notice shall state the time and place of such
meeting, but need not state the purposes thereof. Except as otherwise provided
in Section 7 of this Article III, notice of each such meeting shall be mailed to
each Director, addressed to him or her at his or her residence or usual place of
business, at least two (2) days before the day on which such meeting is to be
held, or shall be sent addressed to him or her at such place by telegraph,
cable, wireless or other form of recorded communication or delivered personally
or by telephone not later than the day before the day on which such meeting is
to be held. A written waiver of notice, whether given before or after the
meeting to which it relates, shall be equivalent to the giving of notice of such
meeting to the Director or Directors signing such waiver. Attendance of a
Director at a special meeting of the Board of Directors shall constitute a
waiver of notice of such meeting, except when he or she attends the meeting for
the express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
7. Quorum and Manner of Acting.
A majority of the whole Board of Directors shall be present in person
at any meeting of the Board of Directors in order to constitute a quorum for the
transaction of business at such meeting, and except as otherwise specified in
these Bylaws, and except also as otherwise expressly provided by the Delaware
General Corporation Law, the vote of a majority of the Directors present at any
such meeting at which a quorum is present shall be the act of the Board of
Directors. In the absence of a quorum from any such meeting, a majority of the
Directors present thereat may adjourn such meeting from time to time to another
time or place, without notice other than announcement at the meeting, until a
quorum shall be present thereat. The Directors shall act only as a Board and the
individual Directors shall have no power as such.
8. Organization.
At each meeting of the Board of Directors, the Chairman of the Board of
Directors, or, if he or she is absent therefrom, the President, or if he or she
is absent therefrom, a Director chosen by a majority of the Directors present
thereat, shall act as chairman of such meeting and preside thereat. The
Secretary, or if he or she is absent, the person (who shall be an Assistant
Secretary, if any and if present) whom the chairman of such meeting shall
appoint, shall act as Secretary of such meeting and keep the minutes thereof.
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9. Action by Directors Without a Meeting.
Any action required or permitted to be taken at a meeting of the Board
of Directors may be taken without a meeting, without prior notice and without a
vote, if a consent in writing, setting forth the action so taken, is signed by
all Directors and such consent is filed with the minutes of the proceedings of
the Board of Directors.
10. Resignations.
Any Director may resign at any time by giving written notice of his or
her resignation to the Corporation. Any such resignation shall take effect at
the time specified therein, or, if the time when it shall become effective is
not specified therein, it shall take effect immediately upon its receipt by the
Chairman of the Board, the President or the Secretary; and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary to
make it effective.
11. Removal of Directors.
Directors may be removed, with or without cause, as provided from time
to time by the Delaware General Corporation Law as then in effect.
12. Vacancies.
Vacancies and newly created directorships resulting from any increase
in the authorized number of Directors elected by all of the stockholders having
the right to vote as a single class may be filled by a majority of the Directors
then in office, although less than a quorum, or by a sole remaining Director. If
at any time, by reason of death or resignation or other cause, the Corporation
has no Directors in office, then any officer or any stockholder or an executor,
administrator, trustee or guardian of a stockholder, may call a special meeting
of stockholders for the purpose of filling vacancies in the Board of Directors.
If one or more Directors shall resign from the Board of Directors, effective at
a future date, a majority of the Directors then in office, including those who
have so resigned, shall have the power to fill such vacancy or vacancies, the
vote thereon to take effect when such resignation or resignations shall become
effective, and each Director so chosen shall hold office as provided in this
section in the filling of other vacancies.
13. Compensation.
Unless otherwise expressly provided by resolution adopted by the Board
of Directors, no Director shall receive any compensation for his or her services
as a Director. The Board of Directors may at any time and from time to time by
resolution provide that the Directors shall be paid a fixed sum for attendance
at each meeting of the Board of Directors or a stated salary as Director. In
addition, the Board of Directors may at any time and from time to time by
resolution provide that Directors shall be paid their actual expenses, if any,
of attendance at each meeting of the Board of Directors. Nothing in this section
shall be construed as precluding any Director from serving the Corporation
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in any other capacity and receiving compensation therefor, but the Board of
Directors may by resolution provide that any Director receiving compensation for
his or her services to the Corporation in any other capacity shall not receive
additional compensation for his or her services as a Director.
ARTICLE IV
OFFICERS
1. Number.
The Corporation shall have the following officers: a Chairman of the
Board (who shall be a Director), a President, a Vice President, a Secretary and
a Treasurer. At the discretion of the Board of Directors, the Corporation may
also have additional Vice Presidents, one or more Assistant Vice Presidents, one
or more Assistant Secretaries and one or more Assistant Treasurers. Any two or
more offices may be held by the same person.
2. Election and Term of Office.
The officers of the Corporation shall be elected annually by the Board
of Directors. Each such officer shall hold office until his or her successor is
duly elected or until his or her earlier death or resignation or removal in the
manner hereinafter provided.
3. Agents.
In addition to the officers mentioned in Section 1 of this Article IV,
the Board of Directors may appoint such agents as the Board of Directors may
deem necessary or advisable, each of which agents shall have such authority and
perform such duties as are provided in these Bylaws or as the Board of Directors
may from time to time determine. The Board of Directors may delegate to any
officer or to any committee the power to appoint or remove any such agents.
4. Removal.
Any officer may be removed, with or without cause, at any time by
resolution adopted by a majority of the whole Board of Directors.
5. Resignations.
Any officer may resign at any time by giving written notice of his or
her resignation to the Board of Directors, the Chairman of the Board, the
President or the Secretary. Any such resignation shall take effect at the time
specified therein, or, if the time when it shall become effective is not
specified therein, it shall take effect immediately upon its receipt by the
Board of Directors, the Chairman of the Board, the
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President or the Secretary; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
6. Vacancies.
A vacancy in any office due to death, resignation, removal,
disqualification or any other cause may be filled for the unexpired portion of
the term thereof by the Board of Directors.
7. Chairman of the Board.
The Chairman of the Board shall be the chief executive officer of the
Corporation and shall have, subject to the control of the Board, general and
active supervision and direction over the business and affairs of the
Corporation and over its several officers. The Chairman of the Board shall: (a)
preside at all meetings of the stockholders and at all meetings of the Board;
(b) make a report of the state of the business of the Corporation at each annual
meeting of the stockholders; (c) see that all orders and resolutions of the
Board are carried into effect; (d) sign certificates for stock of the
Corporation; (e) have the right to sign, execute and deliver in the name of the
Corporation all deeds, mortgages, bonds, contracts or other instruments
authorized by the Board, except in cases where the signing, execution or
delivery thereof is expressly delegated by the Board or by these Bylaws to some
other officer or agent of the Corporation or where any of them are required by
law otherwise to be signed, executed or delivered; (f) have the right to cause
the corporate seal, if any, to be affixed to any instrument which requires it;
and (g) have a casting vote in the case of equality of votes at a meeting of the
Board or the Executive Committee. In general, the Chairman of the Board shall
perform all duties incident to the office of the Chairman of the Board and such
other duties as from time to time may be assigned to him or her by the Board.
8. President.
The President shall have, subject to the control of the Board and the
Chairman of the Board, general and active supervision and direction over the
business and affairs of the Corporation and over its several officers. At the
request of the Chairman of the Board, or in case of his or her absence or
inability to act, the President shall perform the duties of the Chairman of the
Board and, when so acting, shall have all the powers of, and be subject to all
the restrictions upon, the Chairman of the Board. He may sign certificates for
stock of the Corporation. He may sign, execute and deliver in the name of the
Corporation all deeds, mortgages, bonds, contracts or other instruments
authorized by the Board, except in cases where the signing, execution or
delivery thereof is expressly delegated by the Board or by these Bylaws to some
other officer or agent of the Corporation or where any of them are required by
law otherwise to be signed, executed or delivered, and he may cause the
corporate seal, if any, to be affixed to any instrument which requires it. In
general, the President shall perform all duties incident to the office of the
President and such other duties as from time to time may be assigned to him or
her by the Board or the Chairman of the Board.
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9. Vice President.
The Vice President and any additional Vice Presidents shall have such
powers and perform such duties as the Chairman of the Board, the President or
the Board of Directors may from time to time prescribe and shall perform such
other duties as may be prescribed by these Bylaws. At the request of the
President, or in case of his or her absence or inability to act, the Vice
President shall perform the duties of the President and, when so acting, shall
have all the powers of, and be subject to all the restrictions upon, the
President.
10. Secretary.
The Secretary shall: (a) record all the proceedings of the meetings of
the stockholders, the Board of Directors and the Executive Committee, if any, in
one or more books kept for that purpose; (b) see that all notices are duly given
in accordance with the provisions of these Bylaws or as required by law; (c) be
the custodian of all contracts, deeds, documents, all other indicia of title to
properties owned by the Corporation and of its other corporate records (except
accounting records) and of the corporate seal, if any, and affix such seal to
all documents the execution of which on behalf of the Corporation under its seal
is duly authorized; (d) have charge, directly or through the transfer clerk or
transfer clerks, transfer agent or transfer agents and registrar or registrars
appointed as provided in Section 3 of Article VII of these Bylaws, of the issue,
transfer and registration of certificates for stock of the Corporation and of
the records thereof, such records to be kept in such manner as to show at any
time the amount of the stock of the Corporation issued and outstanding, the
manner in which and the time when such stock was paid for, the names,
alphabetically arranged, and the addresses of the holders of record thereof, the
number of shares held by each, and the time when each became a holder of record;
(e) upon request, exhibit or cause to be exhibited at all reasonable times to
any Director such records of the issue, transfer and registration of the
certificates for stock of the Corporation; (f) see that the books, reports,
statements, certificates and all other documents and records required by law are
properly kept and filed; and (g) see that the duties prescribed by Section 6 of
Article II of these Bylaws are performed. In general, the Secretary shall
perform all duties incident to the office of Secretary and such other duties as
from time to time may be assigned to him or her by the Chairman of the Board,
the President or the Board of Directors.
11. Treasurer.
If required by the Board of Directors, the Treasurer shall give a bond
for the faithful discharge of his or her duties in such sum and with such surety
or sureties as the Board of Directors shall determine. The Treasurer shall: (a)
have charge and custody of, and be responsible for, all funds, securities, notes
and valuable effects of the Corporation; (b) receive and give receipt for moneys
due and payable to the Corporation from any sources whatsoever; (c) deposit all
such moneys to the credit of the Corporation or otherwise as the Board of
Directors, the Chairman of the Board or the President shall direct in such
banks, trust companies or other depositories as shall be selected in
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accordance with the provisions of Article VI of these Bylaws; (d) cause such
funds to be disbursed by checks or drafts on the authorized depositories of the
Corporation signed as provided in Article VI of these Bylaws; (e) be responsible
for the accuracy of the amounts of, and cause to be preserved proper vouchers
for, all moneys so disbursed; (f) have the right to require from time to time
reports or statements giving such information as he or she may desire with
respect to any and all financial transactions of the Corporation from the
officers or agents transacting the same; (g) render to the Chairman of the
Board, the President or the Board, whenever they, respectively, shall request
him or her so to do, an account of the financial condition of the Corporation
and of all his or her transactions as Treasurer; and (h) upon request, exhibit
or cause to be exhibited at all reasonable times the cash books and other
records to the Chairman of the Board, the President or any of the Directors of
the Corporation. In general, the Treasurer shall perform all duties incident to
the of floe of Treasurer and such other duties as from time to time may be
assigned to him or her by the Chairman of the Board, the President or the Board
of Directors.
12 Assistant Officers.
Any persons elected as assistant officers shall assist in the
performance of the duties of the designated office and such other duties as
shall be assigned to them by any Vice President, the Secretary or the Treasurer,
as the case may be, or by the Board of Directors, the Chairman of the Board, or
the President.
ARTICLE V
COMMITTEES
1. Executive Committee: How Constituted and Powers.
The Board of Directors, by resolution adopted by a majority of the
whole Board of Directors, may designate one or more of the Directors then in
office, who shall include the Chairman of the Board, to constitute an Executive
Committee, which shall have and may exercise between meetings of the Board of
Directors all the delegable powers of the Board of Directors to the extent not
expressly prohibited by the Delaware General Corporation Law or by resolution of
the Board of Directors. The Board may designate one or more Directors as
alternate members of the Committee who may replace any absent or disqualified
member at any meeting of the Committee. Each member of the Executive Committee
shall continue to be a member thereof only during the pleasure of a majority of
the whole Board of Directors.
2. Executive Committee: Organization.
The Chairman of the Board shall act as chairman at all meetings of the Executive
Committee and the Secretary shall act as secretary thereof. In case of the
absence from any meeting of the Chairman of the Board or the Secretary, the
Committee may appoint a
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chairman or secretary, as the case may be, of the meeting.
3. Executive Committee: Meetings.
Regular meetings of the Executive Committee may be held without notice
on such days and at such places as shall be fixed by resolution adopted by a
majority of the Committee and communicated to all its members. Special meetings
of the Committee shall be held whenever called by the Chairman of the Board or a
majority of the members thereof then in office. Notice of each special meeting
of the Committee shall be given in the manner provided in Section 6 of Article
III of these Bylaws for special meetings of the Board of Directors. Notice of
any such meeting of the Executive Committee, however, need not be given to any
member of the Committee if waived by him or her in writing or by telegraph,
cable, wireless or other form of recorded communication either before or after
the meeting, or if he or she is present at such meetings, except when he or she
attends for the express purpose of objecting to the transaction of any business
because the meeting is not lawfully called or convened. Subject to the
provisions of this Article V, the Committee, by resolution adopted by a majority
of the whole Committee, shall fix its own rules of procedure and it shall keep a
record of its proceedings and report them to the board at the next regular
meeting thereof after such proceedings have been taken. All such proceedings
shall be subject to revision or alteration by the Board of Directors; provided,
however, that third parties shall not be prejudiced by any such revision or
alteration.
4. Executive Committee: Quorum and Manner of Acting.
A majority of the Executive Committee shall constitute a quorum for the
transaction of business, and, except as specified in Section 3 of this Article
V, the act of a majority of those present at a meeting thereof at which a quorum
is present shall be the act of the Committee. The members of the Committee shall
act only as a committee, and the individual members shall have no power as such.
5. Other Committees.
The Board of Directors, by resolution adopted by a majority of the
whole Board, may constitute other committees, which shall in each case consist
of one or more of the Directors and, at the discretion of the Board of
Directors, such officers who are not Directors. The Board of Directors may
designate one or more Directors or officers who are not Directors as alternate
members of any committee who may replace any absent or disqualified member at
any meeting of the committee. Each such committee shall have and may exercise
such powers as the Board of Directors may determine and specify in the
respective resolutions appointing them; provided, however, that (a) unless all
of the members of any committee shall be Directors, such committee shall not
have authority to exercise any of the powers of the Board of Directors in the
management of the business and affairs of the Corporation, and (b) if any
committee shall have the power to determine the amounts of the respective fixed
salaries of the officers of the Corporation or any of them, such committee shall
consist of not less than three (3) members and none
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of its members shall have any vote in the determination of the amount that shall
be paid to him or her as a fixed salary. A majority of all the members of any
such committee may fix its rules of procedure, determine its action and fix the
time and place of its meetings and specify what notice thereof, if any, shall be
given, unless the Board of Directors shall otherwise by resolution provide.
6. Resignations.
Any member of the Executive Committee or any other committee may resign
therefrom at any time by giving written notice of his or her resignation to the
Chairman of the Board, the President or the Secretary. Any such resignation
shall take effect at the time specified therein, or if the time when it shall
become effective is not specified therein, it shall take effect immediately upon
its receipt by the Chairman of the Board, the President or the Secretary; and,
unless otherwise specified therein, the acceptance of such resignation shall not
be necessary to make it effective.
7. Vacancies.
Any vacancy in the Executive Committee or any other committee shall be
filled by the vote of a majority of the whole Board of Directors.
8. Compensation.
Unless otherwise expressly provided by resolution adopted by the Board
of Directors, no member of the Executive Committee or any other committee shall
receive any compensation for his or her services as a committee member. The
Board of Directors may at any time and from time to time by resolution provide
that committee members shall be paid a fixed sum for attendance at each
committee meeting or a stated salary as a committee member. In addition, the
Board of Directors may at any time and from time to time by resolution provide
that such committee members shall be paid their actual expenses, if any, of
attendance at each committee meeting. Nothing in this section shall be construed
as precluding any committee member from serving the Corporation in any other
capacity and receiving compensation therefor, but the Board of Directors may by
resolution provide that any committee member receiving compensation for his or
her services to the Corporation in any other capacity shall not receive
additional compensation for his or her services as a committee member.
9. Dissolution of Committees: Removal of Committee Members.
The Board of Directors, by resolution adopted by a majority of the
whole Board, may, with or without cause, dissolve the Executive Committee or any
other committee, and, with or without cause, remove any member thereof.
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ARTICLE VI
MISCELLANEOUS
1. Execution of Contracts.
Except as otherwise required by law or by these Bylaws, any contract or
other instrument may be executed and delivered in the name of the Corporation
and on its behalf by the Chairman of the Board, the President, or any Vice
President. In addition, the Board of Directors may authorize any other officer
or officers or agent or agents to execute and deliver any contract or other
instrument in the name of the Corporation and on its behalf, and such authority
may be general or confined to specific instances as the Board of Directors may
by resolution determine.
2. Attestation.
Any Vice President, the Secretary, or any Assistant Secretary may
attest the execution of any instrument or document by the Chairman of the Board,
the President, or any other duly authorized officer or agent of the Corporation
and may affix the corporate seal, if any, in witness thereof, but neither such
attestation nor the affixing of a corporate seal shall be requisite to the
validity of any such document or instrument.
3. Checks, Drafts.
All checks, drafts, orders for the payment of money, bills of lading,
warehouse receipts, obligations, bills of exchange and insurance certificates
shall be signed or endorsed (except endorsements for collection for the account
of the Corporation or for deposit to its credit, which shall be governed by the
provisions of Section 5 of this Article VI by such officer or officers or agent
or agents of the Corporation and in such manner as shall from time to time be
determined by resolution of the Board of Directors.
4. Deposits.
All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation or otherwise as the Board of
Directors, the Chairman of the Board of Directors, or the President shall direct
in general or special accounts at such banks, trust companies, savings and loan
associations, or other depositories as the Board of Directors may select or as
may be selected by any officer or officers or agent or agents of the Corporation
to whom power in that respect has been delegated by the Board of Directors. For
the purpose of deposit and for the purpose of collection for the account of the
Corporation, checks, drafts and other orders for the payment of money which are
payable to the order of the Corporation may be endorsed, assigned and delivered
by any officer or agent of the Corporation. The Board of Directors may make such
special rules and regulations with respect to such accounts, not inconsistent
with the provisions of these Bylaws, as it may deem expedient.
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5. Proxies in Respect of Stock or Other Securities of Other Corporations.
Unless otherwise provided by resolution adopted by the Board of
Directors, the Chairman of the Board of Directors, the President, or any Vice
President may exercise in the name and on behalf of the Corporation the powers
and rights which the Corporation may have as the holder of stock or other
securities in any other corporation, including without limitation the right to
vote or consent with respect to such stock or other securities.
6. Fiscal Year.
The fiscal year of the Corporation shall correspond with the calendar
year.
ARTICLE VII
STOCK
1. Certificates.
Every holder of stock in the Corporation shall be entitled to have a
certificate signed by or in the name of the Corporation by the Chairman of the
Board of Directors or the President. The signatures of such officers upon such
certificate may be facsimiles if the certificate is signed, manually or by
facsimile signature, by a transfer agent or registered by a registrar, other
than the Corporation itself or one of its employees. If any officer who has
signed or whose facsimile signature has been placed upon a certificate has
ceased for any reason to be such officer prior to issuance of the certificate,
the certificate may be issued with the same effect as if that person were such
officer at the date of issue. All certificates for stock of the Corporation
shall be consecutively numbered, shall state the number of shares represented
thereby and shall otherwise be in such form as shall be determined by the Board
of Directors, subject to such requirements as are imposed by the Delaware
General Corporation Law. The names and addresses of the persons to whom the
shares represented by certificates are issued shall be entered on the stock
transfer books of the Corporation, together with the number of shares and the
date of issue, and in the case of cancellation, the date of cancellation.
Certificates surrendered to the Corporation for transfer shall be canceled, and
no new certificate shall be issued in exchange for such shares until the
original certificate has been canceled; except that in the case of a lost,
stolen, destroyed or mutilated certificate, a new certificate may be issued
therefor upon such terms and indemnity to the Corporation as the Board of
Directors may prescribe.
2. Transfer of Stock.
Transfers of shares of stock of the Corporation shall be made only on
the stock transfer books of the Corporation by the holder of record thereof or
by his or her legal representative or attorney in fact, who shall furnish proper
evidence of authority to
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transfer to the Secretary, or a transfer clerk or a transfer agent, and upon
surrender of the certificate or certificates for such shares properly endorsed
and payment of all taxes thereon. The person in whose name shares of stock stand
on the books of the Corporation shall be deemed the owner thereof for all
purposes as regards the Corporation.
3. Regulations.
The Board of Directors may make such rules and regulations as it may
deem expedient, not inconsistent with these Bylaws, concerning the issue,
transfer and registration of certificates for stock of the Corporation. The
Board of Directors may appoint, or authorize any officer or officers or any
committee to appoint, one or more transfer clerks or one or more transfer agents
and one or more registrars, and may require all certificates for stock to bear
the signature or signatures of any of them.
ARTICLE VIII
DIVIDENDS
The Board of Directors may from time to time declare, and the
Corporation may pay, dividends on its outstanding shares of stock in the manner
and upon the terms and conditions provided in the Delaware General Corporation
Law.
ARTICLE IX
SEAL
A corporate seal shall not be requisite to the validity of any
instrument executed by or on behalf of the Corporation. Nevertheless, if in any
instance a corporate seal is used, the same shall be in the form of a circle and
shall bear the full name of the Corporation.
ARTICLE X
INDEMNIFICATION OF DIRECTORS AND OFFICERS
1. General.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
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Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
2. Derivative Actions.
The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the Court of
Chancery of the State of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
3. Indemnification in Certain Cases.
To the extent that a director, officer, employee or agent of the
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 and 2 of this Article X, or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
4. Procedure.
Any indemnification under Sections 1 and 2 of this Article X (unless
ordered by a court) shall be made by the Corporation only as authorized in the
specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in such
58
<PAGE> 18
Sections 1 and 2. Such determination shall be made (a) by the Board of Directors
by a majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (b) if such a quorum is not obtainable, or,
even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (c) by the stockholders.
5. Advances for Expenses.
Expenses incurred by a director, officer, employee, or agent of the
Corporation in defending a civil or criminal action, suit or proceeding shall be
paid by the Corporation in advance of the final disposition of such action, suit
or proceeding upon receipt of an undertaking by or on behalf of the director,
officer, employee or agent to repay such amount if it shall be ultimately
determined that he is not entitled to be indemnified by the Corporation as
authorized in this Article X.
6. Rights Not Exclusive.
The indemnification and advancement of expenses provided by or granted
pursuant to, the other Sections of this Article X shall not be deemed exclusive
of any other rights to which those seeking indemnification may be entitled under
any law, by law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office.
7. Insurance.
The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article X.
8. Definition of Corporation.
For the purposes of this Article X, references to "the Corporation"
include, in addition to the resulting corporation, all constituent corporations
(including any constituent of a constituent) absorbed in consolidation or merger
which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees and agents so that any
person who is or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall stand in the same position under
the provisions of this Article X with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate
59
<PAGE> 19
existence had continued.
9. Other Definitions.
For purposes of this Article X, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to an employee benefit plan; and
references to "serving at the request of the Corporation" shall include any
service as a director, officer, or agent of the Corporation which imposes duties
on, or involves services by, such director, officer, employee, or agent with
respect to an employee benefit plan, its participants, or beneficiaries; and a
person who acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee benefit plan
shall be deemed to have acted in a manner "not opposed to the best interests of
the Corporation" as referred to in this Article X.
10. Continuation of Rights.
The indemnification and advancement of expenses provided by, or granted
pursuant to this Article X shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such person. No amendment to or repeal of
this Article X shall apply to or have any effect on, the rights of any director,
officer, employee or agent under this Article X which rights come into existence
by virtue of acts or omissions of such director, officer, employee or agent
occurring prior to such amendment or repeal.
ARTICLE XI
AMENDMENTS
These Bylaws may be repealed, altered or amended by the affirmative
vote of the holders of a majority of the stock issued and outstanding and
entitled to vote at any meeting of stockholders or by resolution duly adopted by
the affirmative vote of not less than a majority of the Directors in office at
any annual or regular meeting of the Board of Directors or at any special
meeting of the Board of Directors if notice of the proposed repeal, alteration
or amendment be contained in the notice of such special meeting, and new Bylaws
may be adopted, at any time only by the Board of Directors.
ADOPTED by the Board of Directors of the Corporation at Calgary,
Alberta, this 7th day of January, 1998.
----------------------------
DANNY D. LOWE
60
<PAGE> 20
----------------------------
TODD G. SIMPSON
----------------------------
NORMAN R. HESS
----------------------------
MARK H. HOLDEN
61
<PAGE> 1
THIS CONSULTING AGREEMENT MADE this 1st day of March, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC.
a body corporate, incorporated under
the laws of the Province of Alberta,
(hereinafter referred to as "PUSH")
OF THE FIRST PART
- and -
DAVID SPOONER,
residing at the City of Calgary, in the Province of Alberta,
and LAMBDA SOFTWARE CORPORATION,
a body corporate, incorporated under
the laws of the Province of Alberta,
(hereinafter collectively referred to as "the CONSULTANT")
OF THE SECOND PART
WHEREAS PUSH is the owner of all right, title and interest in and to a
system of computer generated two (2) to three (3) dimensional conversion process
for film and video, which it intends to further develop and to then market and
distribute (hereinafter called "the SYSTEM");
AND WHEREAS the CONSULTANT has expertise in computer software
engineering (hereinafter called "the SERVICES");
AND WHEREAS PUSH requires that the SERVICES be assigned to the
CONSULTANT and be carried out by the CONSULTANT;
62
<PAGE> 2
AND WHEREAS the parties wish to enter into this Agreement for the
purpose of appointing the CONSULTANT to perform the SERVICES, the manner in
which the SERVICES will be performed and the payment for the SERVICES.
NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the
mutual covenants and agreements herein contained and subject to the terms and
conditions hereinafter set out, the parties hereto agree, one with the other as
follows:
1. The CONSULTANT shall provide the SERVICES.
2. The CONSULTANT shall devote all of his efforts and full time to providing the
SERVICES in a timely fashion except where altered by agreement between the
CONSULTANT and PUSH, provided that the CONSULTANT shall be permitted an
aggregate of three (3) weeks absence in each calendar year.
3. PUSH shall pay to the CONSULTANT, consulting fees at the rate of $8,250.00
per month for each month which the CONSULTANT shall devote to providing the
SERVICES.
4. PUSH shall either pay or reimburse the CONSULTANT, as the case may be for all
travel, automotive, accommodation and living expenses reasonably incurred by the
CONSULTANT in the carrying on the business of PUSH.
63
<PAGE> 3
5. Within ten (10) days of the end of each calendar month of the term of this
Agreement the CONSULTANT shall invoice PUSH for the SERVICES rendered and
expenses incurred by the CONSULTANT for such month and which invoice shall
particularize the total hours expended, a description of the SERVICES provided
for such month and the expenses incurred with receipts or vouchers attached
during such month and which invoice shall be paid by PUSH within fifteen (15)
days of the receipt of such invoice.
6. PUSH shall not be liable for the payment of the CONSULTANT'S fees in respect
of invoicing for consulting fees in any calendar year in excess of the aggregate
of $99,000.00, without the written approval of PUSH first had and obtained.
7. The CONSULTANT shall promptly advise PUSH in writing at the request of PUSH
as to the progress and status of the SERVICES, both completed and scheduled, and
shall respond verbally at the request of PUSH to any inquiries made by PUSH in
that regard.
8. The CONSULTANT shall report as required by the terms of this Agreement and
take such direction and instruction as may be necessary to provide the SERVICES
from Todd Simpson or such other person as may be designated from time to time by
PUSH.
64
<PAGE> 4
9. The CONSULTANT covenants and agrees to execute and deliver the standard
NON-DISCLOSURE AND NON-COMPETION AGREEMENT of PUSH and its parent, Push
Entertainment Inc., in conjunction with the execution and delivery of this
Agreement.
10. The CONSULTANT shall ensure that all the CONSULTANT'S employees, agents and
contractors do not discuss, divulge or in any way pass on or utilize in any
manner whatsoever, any information communicated to or acquired by them
concerning the SYSTEM or the business or affairs of PUSH or its said parent.
11. The CONSULTANT shall not disclose the terms or the existence of this
Agreement without the written consent of PUSH first had and obtained.
12. With respect to the SERVICES, the CONSULTANT agrees that any systems or
processes created by the CONSULTANT specifically for the SYSTEM or the business
or operations of PUSH and any rights of invention, patents, industrial designs
or other propriety rights thereto shall belong to and be the property of PUSH.
13. Upon the completion of the SERVICES or the termination of this Agreement the
CONSULTANT shall deliver to PUSH copies of all material created by the
CONSULTANT in a form and format specified by PUSH and the CONSULTANT shall then
cause all of the CONSULTANT'S files to be deleted and shall destroy any and all
materials not returned to PUSH.
65
<PAGE> 5
14. This Agreement may be terminated by either party at any time on thirty (30)
days notice to the other.
15. This Agreement shall be governed by and construed in accordance with the
laws of the Province of Alberta.
16. This Agreement may be amended or modified only by an instrument signed by
each of the parties.
17. No notice, demand, invoice or other communication to be sent or given
hereunder shall be effective until delivered and shall be delivered to each of
the parties at the following addresses:
PUSH TECHNOLOGIES INC.
600, 520 - 5th Avenue SW
Calgary, Alberta, Canada,
T2P 3R7
DAVID SPOONER and LAMBDA SOFTWARE CORPORATION 4711
Montana Drive NW
Calgary, Alberta, Canada,
T3B T3B
and either party may change the address for service by notice to the other and
which shall stipulate the new address and the effective date.
66
<PAGE> 6
18. Should one or more provisions of this Agreement be held invalid, illegal or
unenforceable, the remaining provisions shall be construed as if such invalid,
illegal or unenforceable provision had never been included.
19. The waiver by one party of the performance of any agreement, covenant,
condition or requirement contained in this Agreement shall not invalidate this
Agreement nor shall such waiver be construed or considered to be a waiver of the
strict performance of any other agreement, covenant, condition or promise.
20. The exercise of any remedy provided by law and by this Agreement shall not
exclude the seeking of other remedies.
21. This Agreement contains the entire agreement between the parties and it is
admitted, so that they are forever estopped from asserting to the contrary, and
there are no conditions precedent, or agreements or warranties of any nature
given or made by the parties.
22. This Agreement shall not be assigned by either of the parties hereto without
the written consent of the other.
67
<PAGE> 7
IN WITNESS WHEREOF the parties hereto have executed this Agreement all
as of the day and year first above written.
PUSH TECHNOLOGIES INC.
Per: /s/ Todd Simpson
----------------------------
/s/ DAVID SPOONER
---------------------------------
DAVID SPOONER
LAMBDA SOFTWARE CORPORATION
Per: /s/ DAVID SPOONER
----------------------------
68
<PAGE> 1
THIS CONSULTING AGREEMENT MADE this 20th day of July, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC.
a body corporate, incorporated under
the laws of the Province of Alberta,
(hereinafter referred to as "PUSH")
OF THE FIRST PART
- and -
SUSAN HUBELE,
residing at the Town of Cochrane, in the Province of Alberta,
and WHITE LINE COMMUNICATIONS LTD.,
a body corporate, incorporated under
the laws of the Province of Alberta,
(hereinafter collectively referred to as "the CONSULTANT")
OF THE SECOND PART
WHEREAS PUSH is the owner of all right, title and interest in and to a
system of computer generated two (2) to three (3) dimensional conversion process
for film and video, which it intends to further develop and to then market and
distribute (hereinafter called "the SYSTEM");
AND WHEREAS the CONSULTANT has expertise in creative and corporate
development (hereinafter called "the SERVICES");
AND WHEREAS PUSH requires that the SERVICES be assigned to the
CONSULTANT and be carried out by the CONSULTANT;
69
<PAGE> 2
AND WHEREAS the parties wish to enter into this Agreement for the
purpose of appointing the CONSULTANT to perform the SERVICES, the manner in
which the SERVICES will be performed and the payment for the SERVICES.
NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the
mutual covenants and agreements herein contained and subject to the terms and
conditions hereinafter set out, the parties hereto agree, one with the other as
follows:
1. The CONSULTANT shall provide the SERVICES.
2. The CONSULTANT shall devote all of his efforts and full time to providing the
SERVICES in a timely fashion except where altered by agreement between the
CONSULTANT and PUSH, provided that the CONSULTANT shall be permitted an
aggregate of three (3) weeks absence in each calendar year.
3. PUSH shall pay to the CONSULTANT, consulting fees at the rate of $4,167.00
per month for each month which the CONSULTANT shall devote to providing the
SERVICES.
4. PUSH shall either pay or reimburse the CONSULTANT, as the case may be for all
travel, automotive, accommodation and living expenses reasonably incurred by the
CONSULTANT in the carrying on the business of PUSH.
70
<PAGE> 3
5. Within ten (10) days of the end of each calendar month of the term of this
Agreement the CONSULTANT shall invoice PUSH for the SERVICES rendered and
expenses incurred by the CONSULTANT for such month and which invoice shall
particularize the total hours expended, a description of the SERVICES provided
for such month and the expenses incurred with receipts or vouchers attached
during such month and which invoice shall be paid by PUSH within fifteen (15)
days of the receipt of such invoice.
6. PUSH shall not be liable for the payment of the CONSULTANT'S fees in respect
of invoicing for consulting fees in any calendar year in excess of the aggregate
of $50,000.00, without the written approval of PUSH first had and obtained.
7. The CONSULTANT shall promptly advise PUSH in writing at the request of PUSH
as to the progress and status of the SERVICES, both completed and scheduled, and
shall respond verbally at the request of PUSH to any inquiries made by PUSH in
that regard.
8. The CONSULTANT shall report as required by the terms of this Agreement and
take such direction and instruction as may be necessary to provide the SERVICES
from Todd Simpson or such other person as may be designated from time to time by
PUSH.
71
<PAGE> 4
9. The CONSULTANT covenants and agrees to execute and deliver the standard
NON-DISCLOSURE AND NON-COMPETION AGREEMENT of PUSH and its parent, Push
Entertainment Inc., in conjunction with the execution and delivery of this
Agreement.
10. The CONSULTANT shall ensure that all the CONSULTANT'S employees, agents and
contractors do not discuss, divulge or in any way pass on or utilize in any
manner whatsoever, any information communicated to or acquired by them
concerning the SYSTEM or the business or affairs of PUSH or its said parent.
11. The CONSULTANT shall not disclose the terms or the existence of this
Agreement without the written consent of PUSH first had and obtained.
12. With respect to the SERVICES, the CONSULTANT agrees that any systems or
processes created by the CONSULTANT specifically for the SYSTEM or the business
or operations of PUSH and any rights of invention, patents, industrial designs
or other propriety rights thereto shall belong to and be the property of PUSH.
13. Upon the completion of the SERVICES or the termination of this Agreement the
CONSULTANT shall deliver to PUSH copies of all material created by the
CONSULTANT in a form and format specified by PUSH and the CONSULTANT shall then
cause all of the CONSULTANT'S files to be deleted and shall destroy any and all
materials not returned to PUSH.
72
<PAGE> 5
14. This Agreement may be terminated by either party at any time on thirty (30)
days notice to the other.
15. This Agreement shall be governed by and construed in accordance with the
laws of the Province of Alberta.
16. This Agreement may be amended or modified only by an instrument signed by
each of the parties.
17. No notice, demand, invoice or other communication to be sent or given
hereunder shall be effective until delivered and shall be delivered to each of
the parties at the following addresses:
PUSH TECHNOLOGIES INC.
600, 520 - 5th Avenue SW
Calgary, Alberta, Canada,
T2P 3R7
SUSAN HUBELE and WHITE LINE COMMUNICATIONS LTD.
616 - 2nd Street West
Cochrane, Alberta, Canada,
T0L 0W1
and either party may change the address for service by notice to the other and
which shall stipulate the new address and the effective date.
73
<PAGE> 6
18. Should one or more provisions of this Agreement be held invalid, illegal or
unenforceable, the remaining provisions shall be construed as if such invalid,
illegal or unenforceable provision had never been included.
19. The waiver by one party of the performance of any agreement, covenant,
condition or requirement contained in this Agreement shall not invalidate this
Agreement nor shall such waiver be construed or considered to be a waiver of the
strict performance of any other agreement, covenant, condition or promise.
20. The exercise of any remedy provided by law and by this Agreement shall not
exclude the seeking of other remedies.
21. This Agreement contains the entire agreement between the parties and it is
admitted, so that they are forever estopped from asserting to the contrary, and
there are no conditions precedent, or agreements or warranties of any nature
given or made by the parties.
22. This Agreement shall not be assigned by either of the parties hereto without
the written consent of the other.
74
<PAGE> 7
IN WITNESS WHEREOF the parties hereto have executed this Agreement all
as of the day and year first above written.
PUSH TECHNOLOGIES INC.
Per: /s/ Todd Simpson
----------------------------
/s/ SUSAN HUBELE
---------------------------------
SUSAN HUBELE
WHITE LINE COMMUNICATIONS LTD.
Per: /s/ SUSAN HUBELE
----------------------------
75
<PAGE> 1
THIS CONSULTING AGREEMENT MADE this 10th day of June, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC.
a body corporate, incorporated under
the laws of the Province of Alberta,
(hereinafter referred to as "PUSH")
OF THE FIRST PART
- and -
DONG PAN,
residing at the City of Calgary, in the Province of Alberta,
(hereinafter referred to as "the CONSULTANT")
OF THE SECOND PART
WHEREAS PUSH is the owner of all right, title and interest in and to a
system of computer generated two to three dimensional conversion process for
film and video, which it intends to further develop and to then market and
distribute (hereinafter called "the SYSTEM");
AND WHEREAS the CONSULTANT has skills and experience as a software
engineer (hereinafter called "the SERVICES");
AND WHEREAS PUSH requires that the SERVICES be assigned to the
CONSULTANT and be carried out by the CONSULTANT;
76
<PAGE> 2
AND WHEREAS the parties wish to enter into this Agreement for the
purpose of appointing the CONSULTANT to perform the SERVICES, the manner in
which the SERVICES will be performed and the payment for the SERVICES.
NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the
mutual covenants and agreements herein contained and subject to the terms and
conditions hereinafter set out, the parties hereto agree, one with the other as
follows:
1. The CONSULTANT shall provide the SERVICES.
2. The CONSULTANT shall devote all of his efforts and full time to providing the
SERVICES in a timely fashion except where altered by agreement between the
CONSULTANT and PUSH, provided that the CONSULTANT shall be permitted an
aggregate of three (3) weeks absence in each calendar year.
3. PUSH shall pay to the CONSULTANT, consulting fees at the rate of $3,667.00
for each month which the CONSULTANT shall devote to providing the SERVICES.
4. In no event shall the CONSULTANT invoice PUSH in any consecutive twelve (12)
month period for the SERVICES in excess of the aggregate total of $44,000.00,
without the written approval of PUSH first had and obtained.
77
<PAGE> 3
5. PUSH shall either pay or reimburse the CONSULTANT, as the case may be for all
travel, automotive, accommodation and living expenses reasonably incurred by the
CONSULTANT in the carrying on the business of PUSH.
6. Within ten (10) days of the end of each calendar month of the term of this
Agreement the CONSULTANT shall invoice PUSH for the SERVICES rendered and
expenses incurred by the CONSULTANT for such month and which invoice shall
particularize the total hours expended, a description of the SERVICES provided
for such month and the expenses incurred with receipts or vouchers attached
during such month and which invoice shall be paid by PUSH within fifteen (15)
days of the receipt of such invoice.
7. The CONSULTANT shall promptly advise PUSH in writing at the request of PUSH
as to the progress and status of the SERVICES, both completed and scheduled, and
shall respond verbally at the request of PUSH to any inquiries made by PUSH in
that regard.
8. The CONSULTANT shall report as required by the terms of this Agreement and
take such direction and instruction as may be necessary to carry out the terms
hereof from TODD SIMPSON or such other person as may be designated from time to
time by PUSH.
9. The CONSULTANT covenants and agrees to execute and deliver the standard
NON-DISCLOSURE AND NON-COMPETION AGREEMENT of PUSH and its parent, Push
Entertainment Inc., in conjunction with the execution and delivery of this
Agreement.
78
<PAGE> 4
10. The CONSULTANT shall ensure that all the CONSULTANT'S employees, agents and
contractors do not discuss, divulge or in any way pass on or utilize in any
manner whatsoever, any information communicated to or acquired by them
concerning the SYSTEM or the business or affairs of PUSH or its said parent.
11. The CONSULTANT shall not disclose the terms or the existence of this
Agreement without the written consent of PUSH first had and obtained.
12. With respect to the SERVICES, the CONSULTANT agrees that any systems or
processes created by the CONSULTANT specifically for the SYSTEM or the business
or operations of PUSH and any rights of invention , patents, industrial designs
or other propriety rights thereto shall belong to and be the property of PUSH.
13. Upon the completion of the SERVICES or the termination of this Agreement the
CONSULTANT shall deliver to PUSH copies of all material created by the
CONSULTANT in a form and format specified by PUSH and the CONSULTANT shall then
cause all of the CONSULTANT'S files to be deleted and shall destroy any and all
materials not returned to PUSH.
14. This Agreement may be terminated by either party at any time on thirty (30)
days notice to the other.
79
<PAGE> 5
15. This Agreement shall be governed by and construed in accordance with the
laws of the Province of Alberta.
16. This Agreement may be amended or modified only by an instrument signed by
each of the parties.
17. No notice, demand, invoice or other communication to be sent or given
hereunder shall be effective until delivered and shall be delivered to each of
the parties at the following addresses:
PUSH TECHNOLOGIES INC.
600, 520 - 5th Avenue SW
Calgary, Alberta, Canada,
T2P 3R7
DONG PAN
151, 6915 Ranchview Drive NW
Calgary, Alberta, Canada,
T3G 1R8
and either party may change the address for service by notice to the other and
which shall stipulate the new address and the effective date.
18. Should one or more provisions of this Agreement be held invalid, illegal or
unenforceable, the remaining provisions shall be construed as if such invalid,
illegal or unenforceable provision had never been included.
80
<PAGE> 6
19. The waiver by one party of the performance of any agreement, covenant,
condition or requirement contained in this Agreement shall not invalidate this
Agreement nor shall such waiver be construed or considered to be a waiver of the
strict performance of any other agreement, covenant, condition or promise.
20. The exercise of any remedy provided by law and by this Agreement shall not
exclude the seeking of other remedies.
21. This Agreement contains the entire agreement between the parties and it is
admitted, so that they are forever estopped from asserting to the contrary, and
there are no conditions precedent, or agreements or warranties of any nature
given or made by the parties.
22. This Agreement shall not be assigned by either of the parties hereto without
the written consent of the other.
IN WITNESS WHEREOF the parties hereto have executed this Agreement all
as of the day and year first above written.
PUSH TECHNOLOGIES INC.
Per: /s/ Todd Simpson
--------------------------
/s/ DONG PAN
-------------------------------
DONG PAN
81
<PAGE> 1
THIS CONSULTING AGREEMENT MADE this 1st day of April, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC.
a body corporate, incorporated under
the laws of the Province of Alberta,
(hereinafter referred to as "PUSH")
OF THE FIRST PART
- and -
JIM TURNER,
residing at the Town of Cremona, in the Province of Alberta,
(hereinafter referred to as "the CONSULTANT")
OF THE SECOND PART
WHEREAS PUSH is the owner of all right, title and interest in and to a
system of computer generated two to three dimensional conversion process for
film and video, which it intends to further develop and to then market and
distribute (hereinafter called "the SYSTEM");
AND WHEREAS the CONSULTANT has expertise in providing video consulting
services (hereinafter called "the SERVICES");
AND WHEREAS PUSH requires that the SERVICES be assigned to the
CONSULTANT and be carried out by the CONSULTANT;
82
<PAGE> 2
AND WHEREAS the parties wish to enter into this Agreement for the
purpose of appointing the CONSULTANT to perform the SERVICES, the manner in
which the SERVICES will be performed and the payment for the SERVICES.
NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the
mutual covenants and agreements herein contained and subject to the terms and
conditions hereinafter set out, the parties hereto agree, one with the other as
follows:
1. The CONSULTANT shall provide the SERVICES.
2. The CONSULTANT shall devote all of his efforts and full time to
providing the SERVICES in a timely fashion except where altered by
agreement between the CONSULTANT and PUSH, provided that the CONSULTANT
shall be permitted an aggregate of three (3) weeks absence in each
calendar year.
3. PUSH shall pay to the CONSULTANT, consulting fees at the rate of $17.50
for each hour which the CONSULTANT shall devote to providing the
SERVICES.
4. In no event shall the CONSULTANT invoice PUSH in any consecutive twelve
(12) month period for the SERVICES in excess of the aggregate total of
$35,000.00, without the written approval of PUSH first had and
obtained.
83
<PAGE> 3
5. PUSH shall either pay or reimburse the CONSULTANT, as the case may be
for all travel, automotive, accommodation and living expenses
reasonably incurred by the CONSULTANT in the carrying on the business
of PUSH.
6. Within ten (10) days of the end of each calendar month of the term of
this Agreement the CONSULTANT shall invoice PUSH for the SERVICES
rendered and expenses incurred by the CONSULTANT for such month and
which invoice shall particularize the total hours expended, a
description of the SERVICES provided for such month and the expenses
incurred with receipts or vouchers attached during such month and which
invoice shall be paid by PUSH within fifteen (15) days of the receipt
of such invoice.
7. The CONSULTANT shall promptly advise PUSH in writing at the request of
PUSH as to the progress and status of the SERVICES, both completed and
scheduled, and shall respond verbally at the request of PUSH to any
inquiries made by PUSH in that regard.
8. The CONSULTANT shall report as required by the terms of this Agreement
and take such direction and instruction as may be necessary to carry
out the terms hereof from TODD SIMPSON or such other person as may be
designated from time to time by PUSH.
9. The CONSULTANT covenants and agrees to execute and deliver the standard
NON-DISCLOSURE AND NON-COMPETION AGREEMENT of PUSH and its parent, Push
Entertainment Inc., in conjunction with the execution and delivery of
this Agreement.
84
<PAGE> 4
10. The CONSULTANT shall ensure that all the CONSULTANT'S employees, agents
and contractors do not discuss, divulge or in any way pass on or
utilize in any manner whatsoever, any information communicated to or
acquired by them concerning the SYSTEM or the business or affairs of
PUSH or its said parent.
11. The CONSULTANT shall not disclose the terms or the existence of this
Agreement without the written consent of PUSH first had and obtained.
12. With respect to the SERVICES, the CONSULTANT agrees that any systems or
processes created by the CONSULTANT specifically for the SYSTEM or the
business or operations of PUSH and any rights of invention , patents,
industrial designs or other propriety rights thereto shall belong to
and be the property of PUSH.
13. Upon the completion of the SERVICES or the termination of this
Agreement the CONSULTANT shall deliver to PUSH copies of all material
created by the CONSULTANT in a form and format specified by PUSH and
the CONSULTANT shall then cause all of the CONSULTANT'S files to be
deleted and shall destroy any and all materials not returned to PUSH.
14. This Agreement may be terminated by either party at any time on thirty
(30) days notice to the other.
85
<PAGE> 5
15. This Agreement shall be governed by and construed in accordance with
the laws of the Province of Alberta.
16. This Agreement may be amended or modified only by an instrument signed
by each of the parties.
17. No notice, demand, invoice or other communication to be sent or given
hereunder shall be effective until delivered and shall be delivered to
each of the parties at the following addresses:
PUSH TECHNOLOGIES INC.
600, 520 - 5th Avenue SW
Calgary, Alberta, Canada,
T2P 3R7
JIM TURNER
Box 551
Cremona, Alberta, Canada,
TOM 0R0
and either party may change the address for service by notice to the other and
which shall stipulate the new address and the effective date.
18. Should one or more provisions of this Agreement be held invalid,
illegal or unenforceable, the remaining provisions shall be construed
as if such invalid, illegal or unenforceable provision had never been
included.
86
<PAGE> 6
19. The waiver by one party of the performance of any agreement, covenant,
condition or requirement contained in this Agreement shall not
invalidate this Agreement nor shall such waiver be construed or
considered to be a waiver of the strict performance of any other
agreement, covenant, condition or promise.
20. The exercise of any remedy provided by law and by this Agreement shall
not exclude the seeking of other remedies.
21. This Agreement contains the entire agreement between the parties and it
is admitted, so that they are forever estopped from asserting to the
contrary, and there are no conditions precedent, or agreements or
warranties of any nature given or made by the parties.
22. This Agreement shall not be assigned by either of the parties hereto
without the written consent of the other.
IN WITNESS WHEREOF the parties hereto have executed this Agreement all
as of the day and year first above written.
PUSH TECHNOLOGIES INC.
Per: /s/ Todd Simpson
-------------------------------
/s/ Jim Turner
-----------------------------------
JIM TURNER
87
<PAGE> 1
THIS CONSULTING AGREEMENT MADE this 26 day of June 1998.
BETWEEN:
PUSH TECHNOLOGIES INC.
a body corporate, incorporated under
the laws of the Province of Alberta,
(hereinafter referred to as "PUSH")
OF THE FIRST PART
- and -
P. RANDALL HESS,
residing at the City of Calgary, in the Province of Alberta,
(hereinafter referred to as "the CONSULTANT")
OF THE SECOND PART
WHEREAS PUSH is the owner of all right, title and interest in and to a
system of computer generated two to three dimensional conversion process for
film and video, which it intends to further develop and to then market and
distribute (hereinafter called "the SYSTEM");
AND WHEREAS the CONSULTANT has skills and experience computer systems
and software and digital video editing (hereinafter called "the SERVICES");
AND WHEREAS PUSH requires that the SERVICES be assigned to the
CONSULTANT and be carried out by the CONSULTANT;
88
<PAGE> 2
AND WHEREAS the parties wish to enter into this Agreement for the
purpose of appointing the CONSULTANT to perform the SERVICES, the manner in
which the SERVICES will be performed and the payment for the SERVICES.
NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the
mutual covenants and agreements herein contained and subject to the terms and
conditions hereinafter set out, the parties hereto agree, one with the other as
follows:
1. The CONSULTANT shall provide the SERVICES.
2. The CONSULTANT shall devote all of his efforts and full time to
providing the SERVICES in a timely fashion except where altered by
agreement between the CONSULTANT and PUSH, provided that the CONSULTANT
shall be permitted an aggregate of three (3) weeks absence in each
calendar year.
3. PUSH shall pay to the CONSULTANT, consulting fees at the rate of
$3,000.00 for each month which the CONSULTANT shall devote to providing
the SERVICES.
4. In no event shall the CONSULTANT invoice PUSH in any consecutive twelve
(12) month period for the SERVICES in excess of the aggregate total of
$36,000.00, without the written approval of PUSH first had and
obtained.
89
<PAGE> 3
5. PUSH shall either pay or reimburse the CONSULTANT, as the case may be
for all travel, automotive, accommodation and living expenses
reasonably incurred by the CONSULTANT in the carrying on the business
of PUSH.
6. Within ten (10) days of the end of each calendar month of the term of
this Agreement the CONSULTANT shall invoice PUSH for the SERVICES
rendered and expenses incurred by the CONSULTANT for such month and
which invoice shall particularize the total hours expended, a
description of the SERVICES provided for such month and the expenses
incurred with receipts or vouchers attached during such month and which
invoice shall be paid by PUSH within fifteen (15) days of the receipt
of such invoice.
7. The CONSULTANT shall promptly advise PUSH in writing at the request of
PUSH as to the progress and status of the SERVICES, both completed and
scheduled, and shall respond verbally at the request of PUSH to any
inquiries made by PUSH in that regard.
8. The CONSULTANT shall report as required by the terms of this Agreement
and take such direction and instruction as may be necessary to carry
out the terms hereof from TODD SIMPSON or such other person as may be
designated from time to time by PUSH.
9. The CONSULTANT covenants and agrees to execute and deliver the standard
NON-DISCLOSURE AND NON-COMPETION AGREEMENT of PUSH and its parent, Push
Entertainment Inc., in conjunction with the execution and delivery of
this Agreement.
90
<PAGE> 4
10. The CONSULTANT shall ensure that all the CONSULTANT'S employees, agents
and contractors do not discuss, divulge or in any way pass on or
utilize in any manner whatsoever, any information communicated to or
acquired by them concerning the SYSTEM or the business or affairs of
PUSH or its said parent.
11. The CONSULTANT shall not disclose the terms or the existence of this
Agreement without the written consent of PUSH first had and obtained.
12. With respect to the SERVICES, the CONSULTANT agrees that any systems or
processes created by the CONSULTANT specifically for the SYSTEM or the
business or operations of PUSH and any rights of invention , patents,
industrial designs or other propriety rights thereto shall belong to
and be the property of PUSH.
13. Upon the completion of the SERVICES or the termination of this
Agreement the CONSULTANT shall deliver to PUSH copies of all material
created by the CONSULTANT in a form and format specified by PUSH and
the CONSULTANT shall then cause all of the CONSULTANT'S files to be
deleted and shall destroy any and all materials not returned to PUSH.
14. This Agreement may be terminated by either party at any time on thirty
(30) days notice to the other.
91
<PAGE> 5
15. This Agreement shall be governed by and construed in accordance with
the laws of the Province of Alberta.
16. This Agreement may be amended or modified only by an instrument signed
by each of the parties.
17. No notice, demand, invoice or other communication to be sent or given
hereunder shall be effective until delivered and shall be delivered to
each of the parties at the following addresses:
PUSH TECHNOLOGIES INC.
600, 520 - 5th Avenue SW
Calgary, Alberta, Canada,
T2P 3R7
P. RANDALL HESS
539 - 35A Street NW
Calgary, Alberta, Canada,
T2N 3A1
and either party may change the address for service by notice to the
other and which shall stipulate the new address and the effective date.
18. Should one or more provisions of this Agreement be held invalid,
illegal or unenforceable, the remaining provisions shall be construed
as if such invalid, illegal or unenforceable provision had never been
included.
92
<PAGE> 6
19. The waiver by one party of the performance of any agreement, covenant,
condition or requirement contained in this Agreement shall not
invalidate this Agreement nor shall such waiver be construed or
considered to be a waiver of the strict performance of any other
agreement, covenant, condition or promise.
20. The exercise of any remedy provided by law and by this Agreement shall
not exclude the seeking of other remedies.
21. This Agreement contains the entire agreement between the parties and it
is admitted, so that they are forever estopped from asserting to the
contrary, and there are no conditions precedent, or agreements or
warranties of any nature given or made by the parties.
22. This Agreement shall not be assigned by either of the parties hereto
without the written consent of the other.
IN WITNESS WHEREOF the parties hereto have executed this Agreement all
as of the day and year first above written.
PUSH TECHNOLOGIES INC.
Per: /s/ Illegible signature
-------------------------------
/s/ P. Randall Hess
-----------------------------------
P. RANDALL HESS
93
<PAGE> 1
THIS CONSULTING AGREEMENT MADE this 1st day of April, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC.
a body corporate, incorporated under
the laws of the Province of Alberta,
(hereinafter referred to as "PUSH")
OF THE FIRST PART
- and -
BRAD STECKEL,
residing at the City of Calgary, in the Province of Alberta,
(hereinafter referred to as "the CONSULTANT")
OF THE SECOND PART
WHEREAS PUSH is the owner of all right, title and interest in and to a
system of computer generated two to three dimensional conversion process for
film and video, which it intends to further develop and to then market and
distribute (hereinafter called "the SYSTEM");
AND WHEREAS the CONSULTANT has expertise in providing audio/visual
consulting services (hereinafter called "the SERVICES");
AND WHEREAS PUSH requires that the SERVICES be assigned to the
CONSULTANT and be carried out by the CONSULTANT;
94
<PAGE> 2
AND WHEREAS the parties wish to enter into this Agreement for the
purpose of appointing the CONSULTANT to perform the SERVICES, the manner in
which the SERVICES will be performed and the payment for the SERVICES.
NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the
mutual covenants and agreements herein contained and subject to the terms and
conditions hereinafter set out, the parties hereto agree, one with the other as
follows:
1. The CONSULTANT shall provide the SERVICES.
2. The CONSULTANT shall devote all of his efforts and full time to
providing the SERVICES in a timely fashion except where altered by
agreement between the CONSULTANT and PUSH, provided that the CONSULTANT
shall be permitted an aggregate of three (3) weeks absence in each
calendar year.
3. PUSH shall pay to the CONSULTANT, consulting fees at the rate of $25.00
for each hour which the CONSULTANT shall devote to providing the
SERVICES.
4. In no event shall the CONSULTANT invoice PUSH in any consecutive twelve
(12) month period for the SERVICES in excess of the aggregate total of
$50,000.00, without the written approval of PUSH first had and
obtained.
95
<PAGE> 3
5. PUSH shall either pay or reimburse the CONSULTANT, as the case may be
for all travel, automotive, accommodation and living expenses
reasonably incurred by the CONSULTANT in the carrying on the business
of PUSH.
6. Within ten (10) days of the end of each calendar month of the term of
this Agreement the CONSULTANT shall invoice PUSH for the SERVICES
rendered and expenses incurred by the CONSULTANT for such month and
which invoice shall particularize the total hours expended, a
description of the SERVICES provided for such month and the expenses
incurred with receipts or vouchers attached during such month and which
invoice shall be paid by PUSH within fifteen (15) days of the receipt
of such invoice.
7. The CONSULTANT shall promptly advise PUSH in writing at the request of
PUSH as to the progress and status of the SERVICES, both completed and
scheduled, and shall respond verbally at the request of PUSH to any
inquiries made by PUSH in that regard.
8. The CONSULTANT shall report as required by the terms of this Agreement
and take such direction and instruction as may be necessary to carry
out the terms hereof from TODD SIMPSON or such other person as may be
designated from time to time by PUSH.
9. The CONSULTANT covenants and agrees to execute and deliver the standard
NON-DISCLOSURE AND NON-COMPETION AGREEMENT of PUSH and its parent, Push
Entertainment Inc., in conjunction with the execution and delivery of
this Agreement.
96
<PAGE> 4
10. The CONSULTANT shall ensure that all the CONSULTANT'S employees, agents
and contractors do not discuss, divulge or in any way pass on or
utilize in any manner whatsoever, any information communicated to or
acquired by them concerning the SYSTEM or the business or affairs of
PUSH or its said parent.
11. The CONSULTANT shall not disclose the terms or the existence of this
Agreement without the written consent of PUSH first had and obtained.
12. With respect to the SERVICES, the CONSULTANT agrees that any systems or
processes created by the CONSULTANT specifically for the SYSTEM or the
business or operations of PUSH and any rights of invention , patents,
industrial designs or other propriety rights thereto shall belong to
and be the property of PUSH.
13. Upon the completion of the SERVICES or the termination of this
Agreement the CONSULTANT shall deliver to PUSH copies of all material
created by the CONSULTANT in a form and format specified by PUSH and
the CONSULTANT shall then cause all of the CONSULTANT'S files to be
deleted and shall destroy any and all materials not returned to PUSH.
14. This Agreement may be terminated by either party at any time on thirty
(30) days notice to the other.
97
<PAGE> 5
15. This Agreement shall be governed by and construed in accordance with
the laws of the Province of Alberta.
16. This Agreement may be amended or modified only by an instrument signed
by each of the parties.
17. No notice, demand, invoice or other communication to be sent or given
hereunder shall be effective until delivered and shall be delivered to
each of the parties at the following addresses:
PUSH TECHNOLOGIES INC.
600, 520 - 5th Avenue SW
Calgary, Alberta, Canada,
T2P 3R7
BRAD STECKEL
200 Tuscany Valley Way NW
Calgary, Alberta, Canada,
T3L 2A7
and either party may change the address for service by notice to the
other and which shall stipulate the new address and the effective date.
18. Should one or more provisions of this Agreement be held invalid,
illegal or unenforceable, the remaining provisions shall be construed
as if such invalid, illegal or unenforceable provision had never been
included.
98
<PAGE> 6
19. The waiver by one party of the performance of any agreement, covenant,
condition or requirement contained in this Agreement shall not
invalidate this Agreement nor shall such waiver be construed or
considered to be a waiver of the strict performance of any other
agreement, covenant, condition or promise.
20. The exercise of any remedy provided by law and by this Agreement shall
not exclude the seeking of other remedies.
21. This Agreement contains the entire agreement between the parties and it
is admitted, so that they are forever estopped from asserting to the
contrary, and there are no conditions precedent, or agreements or
warranties of any nature given or made by the parties.
22. This Agreement shall not be assigned by either of the parties hereto
without the written consent of the other.
IN WITNESS WHEREOF the parties hereto have executed this Agreement all
as of the day and year first above written.
PUSH TECHNOLOGIES INC.
Per: /s/ Todd Simpson
-------------------------------
/s/ Brad Steckel
-----------------------------------
BRAD STECKEL
99
<PAGE> 1
THIS CONSULTING AGREEMENT MADE this __ day of March, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC.
a body corporate, incorporated under
the laws of the Province of Alberta,
(hereinafter referred to as "PUSH")
OF THE FIRST PART
- and -
TODD REED,
residing at the City of Calgary, in the Province of Alberta,
and REACTION SOFTWARE INC.,
a body corporate, incorporated under
the laws of the Province of Alberta,
(hereinafter collectively referred to as "the CONSULTANT")
OF THE SECOND PART
WHEREAS PUSH is the owner of all right, title and interest in and to a
system of computer generated two (2) to three (3) dimensional conversion process
for film and video, which it intends to further develop and to then market and
distribute (hereinafter called "the SYSTEM");
AND WHEREAS the CONSULTANT has expertise in computer software
engineering (hereinafter called "the SERVICES");
AND WHEREAS PUSH requires that the SERVICES be assigned to the
CONSULTANT and be carried out by the CONSULTANT;
100
<PAGE> 2
AND WHEREAS the parties wish to enter into this Agreement for the
purpose of appointing the CONSULTANT to perform the SERVICES, the manner in
which the SERVICES will be performed and the payment for the SERVICES.
NOW THEREFORE THIS INDENTURE WITNESSETH that in consideration of the
mutual covenants and agreements herein contained and subject to the terms and
conditions hereinafter set out, the parties hereto agree, one with the other as
follows:
1. The CONSULTANT shall provide the SERVICES.
2. The CONSULTANT shall devote all of his efforts and full time to
providing the SERVICES in a timely fashion except where altered by
agreement between the CONSULTANT and PUSH, provided that the CONSULTANT
shall be permitted an aggregate of three (3) weeks absence in each
calendar year.
3. PUSH shall pay to the CONSULTANT, consulting fees at the rate of $25.00
per hour for each hour which the CONSULTANT shall devote to providing
the SERVICES.
4. PUSH shall either pay or reimburse the CONSULTANT, as the case may be
for all travel, automotive, accommodation and living expenses
reasonably incurred by the CONSULTANT in the carrying on the business
of PUSH.
101
<PAGE> 3
5. Within ten (10) days of the end of each calendar month of the term of
this Agreement the CONSULTANT shall invoice PUSH for the SERVICES
rendered and expenses incurred by the CONSULTANT for such month and
which invoice shall particularize the total hours expended, a
description of the SERVICES provided for such month and the expenses
incurred with receipts or vouchers attached during such month and which
invoice shall be paid by PUSH within fifteen (15) days of the receipt
of such invoice.
6. PUSH shall not be liable for the payment of the CONSULTANT'S fees in
respect of invoicing for consulting fees in any calendar year in excess
of the aggregate of $50,000.00, without the written approval of PUSH
first had and obtained.
7. The CONSULTANT shall promptly advise PUSH in writing at the request of
PUSH as to the progress and status of the SERVICES, both completed and
scheduled, and shall respond verbally at the request of PUSH to any
inquiries made by PUSH in that regard.
8. The CONSULTANT shall report as required by the terms of this Agreement
and take such direction and instruction as may be necessary to provide
the SERVICES from Todd Simpson or such other person as may be
designated from time to time by PUSH.
102
<PAGE> 4
9. The CONSULTANT covenants and agrees to execute and deliver the standard
NON-DISCLOSURE AND NON-COMPETION AGREEMENT of PUSH and its parent, Push
Entertainment Inc., in conjunction with the execution and delivery of
this Agreement.
10. The CONSULTANT shall ensure that all the CONSULTANT'S employees, agents
and contractors do not discuss, divulge or in any way pass on or
utilize in any manner whatsoever, any information communicated to or
acquired by them concerning the SYSTEM or the business or affairs of
PUSH or its said parent.
11. The CONSULTANT shall not disclose the terms or the existence of this
Agreement without the written consent of PUSH first had and obtained.
12. With respect to the SERVICES, the CONSULTANT agrees that any systems or
processes created by the CONSULTANT specifically for the SYSTEM or the
business or operations of PUSH and any rights of invention , patents,
industrial designs or other propriety rights thereto shall belong to
and be the property of PUSH.
13. Upon the completion of the SERVICES or the termination of this
Agreement the CONSULTANT shall deliver to PUSH copies of all material
created by the CONSULTANT in a form and format specified by PUSH and
the CONSULTANT shall then cause all of the CONSULTANT'S files to be
deleted and shall destroy any and all materials not returned to PUSH.
103
<PAGE> 5
14. This Agreement may be terminated by either party at any time on thirty
(30) days notice to the other.
15. This Agreement shall be governed by and construed in accordance with
the laws of the Province of Alberta.
16. This Agreement may be amended or modified only by an instrument signed
by each of the parties.
17. No notice, demand, invoice or other communication to be sent or given
hereunder shall be effective until delivered and shall be delivered to
each of the parties at the following addresses:
PUSH TECHNOLOGIES INC.
600, 520 - 5th Avenue SW
Calgary, Alberta, Canada,
T2P 3R7
TODD REED and REACTION SOFTWARE INC.
803, 3607 - 49th Street NW
Calgary, Alberta, Canada,
T3A 2H3
and either party may change the address for service by notice to the
other and which shall stipulate the new address and the effective date.
104
<PAGE> 6
18. Should one or more provisions of this Agreement be held invalid,
illegal or unenforceable, the remaining provisions shall be construed
as if such invalid, illegal or unenforceable provision had never been
included.
19. The waiver by one party of the performance of any agreement, covenant,
condition or requirement contained in this Agreement shall not
invalidate this Agreement nor shall such waiver be construed or
considered to be a waiver of the strict performance of any other
agreement, covenant, condition or promise.
20. The exercise of any remedy provided by law and by this Agreement shall
not exclude the seeking of other remedies.
21. This Agreement contains the entire agreement between the parties and it
is admitted, so that they are forever estopped from asserting to the
contrary, and there are no conditions precedent, or agreements or
warranties of any nature given or made by the parties.
22. This Agreement shall not be assigned by either of the parties hereto
without the written consent of the other.
105
<PAGE> 7
IN WITNESS WHEREOF the parties hereto have executed this Agreement all
as of the day and year first above written.
PUSH TECHNOLOGIES INC.
Per: /s/ Todd Simpson
-------------------------------
/s/ Todd Reed
-----------------------------------
TODD REED
REACTION SOFTWARE INC.
Per: /s/ Todd Reed
-------------------------------
106
<PAGE> 1
NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
This Agreement made as of the 1st day of March, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC. and PUSH ENTERTAINMENT INC,
bodies corporate having offices in the City of Calgary, in the Province
of Alberta, (hereafter collectively referred to as "Push"),
- and -
DAVID SPOONER, residing at the City of Calgary, in the Province of
Alberta, and LAMBDA SOFTWARE CORPORATION, a body corporate having an
office in the City of Calgary, in the Province of Alberta, (hereafter
collectively referred to as "the Consultant").
WHEREAS Push wishes to disclose to the Consultant certain Confidential
Information for the purposes of information and/or evaluation, providing
services to Push in connection with developing or testing Push's products or the
Confidential Information ("the Purpose").
Now THEREFORE, in consideration of disclosure of Confidential
Information by Push to the Consultant, the parties agree as follows:
Definitions
1. In this Agreement, including the recital, the following words and phrases
shall have the following meanings unless the context otherwise requires:
"Confidential Information" means any and all information, including but not
limited to descriptions, designs, plans, specifications, schematics,
compilations, program, methods, techniques, formulas, processes, information,
documentation, intellectual property, trade secrets, concepts, hardware,
software and industrial designs relating to Push and Push's technology, products
and business, marketing and technical plans, but does not include
Non-Proprietary Information;
"Non-Proprietary Information" means information which the Consultant proves:
(a) was within the public domain at the date of its disclosure to
the Consultant or which thereafter enters the public domain
through no fault of the Consultant (but only after it becomes
part of the public domain);
(b) is already known to the Consultant at the time of its
disclosure to the Consultant by Push and is not subject to
confidential restrictions as can be proven by contemporaneous
documentation;
107
<PAGE> 2
(c) following its disclosure by Push to the Consultant, is
received by the Consultant without obligation of confidence
from a third party who was lawfully in possession of such
information free of any obligation of confidence;
(d) has been approved for release by written authorization of
Push; or
(e) has been disclosed by court order or as otherwise required by
law (including without limitation to the extent that
disclosure may be required under applicable securities laws),
provided that the Consultant has notified Push immediately
upon learning of the possibility of any such court order or
legal requirement and has given Push a reasonable opportunity
(and cooperated with Push) to contest or limit the scope of
such required disclosure (including application for a
protective order).
Information shall not be deemed to be known to the Consultant or publicly known:
(a) merely because it is embraced by more general information in
the prior possession of the Consultant or others; or
(b) merely because it is expressed in public material in general
terms not specifically the same as Confidential Information.
2. Any Confidential Information provided to the Consultant shall be held in
strict confidence by the Consultant and, accordingly, the Consultant shall not:
(a) use any of the Confidential Information except as necessary
for the Purpose and shall not make, have made, or permit to be
made any copies of the Confidential Information except those
copies which are necessary for use of the Confidential
Information for the Purpose;
(b) make any disclosure of the Confidential Information (including
copies thereof, or methods or concepts utilized therein) to
any person or entity other than employees, contractors,
suppliers or consultants of the Consultant to whom such
disclosure is necessary for use of the Confidential
Information for the Purpose; or
(c) reverse-engineer, reverse-compile or reverse-assemble the
Confidential Information except as may be expressly permitted
by Push to enable use of the Confidential Information for the
Purpose.
3. The Consultant shall exercise the same degree of care, which shall not be
less than a reasonable degree of care, in safeguarding the Confidential
Information as it uses for its own proprietary information of like importance
and shall take appropriate action, by instruction or agreement with its
employees who are permitted access to Confidential Information, to satisfy its
obligations hereunder.
108
<PAGE> 3
4. All Confidential Information delivered by Push to the Consultant pursuant to
this Agreement shall be and remain the property of Push, and the Confidential
Information, and any copies thereof, shall be promptly returned to Push upon
request, or destroyed at Push's option.
5. Nothing contained in this Agreement shall be construed as granting or
conferring any rights by license or otherwise, expressly or impliedly, in, to or
by virtue of the Confidential Information or any part or portion thereof.
6. In the event of a breach by the Consultant of any provision of this
Agreement, Push shall, in addition to any other remedy available to it in
respect of such breach, be entitled to injunctive relief restraining the
Consultant from committing or continuing such breach.
7. The Consultant agrees that during the time it provides services to Push and
for a period of three (3) years thereafter, it will not engage, hold and
interest, provide services, or have any involvement whatsoever, either directly
or indirectly, in any business, entity, venture or undertaking competitive with
Push, or any associate or affiliate of Push (including any joint venture
associate or partner of Push) except with the prior written approval of Push.
8. The Consultant acknowledges that it will acquire considerable knowledge of,
and expertise in, certain areas of the products, business affairs and methods of
Push as well as Push's customers and suppliers, which knowledge and expertise
could be used by the Consultant to the serious detriment of Push and,
accordingly, the Consultant agrees that during the time it provides services to
Push and for a period of three (3) years after the Consultant ceases to provide
services to Push, it will not, either directly or indirectly, participate in
recruiting employees, other consultants or contractors of Push, or in the
solicitation of customers or suppliers of Push.
9. The parties agree that the parties, terms, covenants and provisions contained
in this Agreement are separate and severable from the others and are severable
from this Agreement, without affecting the validity of the remaining parties,
terms, covenants and provisions.
10. This Agreement shall be governed by and interpreted in accordance with the
laws in force in the Province of Alberta.
11. The parties agree that words including a singular number shall include
plural number and vice versa; words including a gender shall include all other
genders.
12. This Agreement sets forth the entire understanding and agreement between the
parties hereto and supersedes all prior contracts, agreements and understanding
between the parties pertaining to the subject matter of this Agreement, and no
addition to or modification of this Agreement shall be binding on other parties
hereto unless reduced to writing and duly executed by all of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year
109
<PAGE> 4
first above written.
PUSH TECHNOLOGIES INC. LAMBDA SOFTWARE CORPORATION
Per: /s/ Todd Simpson Per: /s/ David Spooner
------------------------- -------------------------------
Name: Todd Simpson Name: David Spooner
------------------------- -------------------------------
Title: Vice President Title: President
----------------------- -----------------------------
/s/ David Spooner
-----------------------------------
DAVID SPOONER
PUSH ENTERTAINMENT INC.
Per: /s/ Todd Simpson
-------------------------
Name: Todd Simpson
-------------------------
Title: Vice President
-----------------------
110
<PAGE> 1
NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
This Agreement made as of the __ day of July, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC. and PUSH ENTERTAINMENT INC,
bodies corporate having offices in the City of Calgary, in the Province
of Alberta, (hereafter collectively referred to as "Push"),
- and -
SUSAN HUBELE, residing at the Town of Cochrane, in the Province of
Alberta, and WHITE LINE COMMUNICATIONS LTD., a body corporate having an
office in the City of Calgary, in the Province of Alberta, (hereafter
collectively referred to as "the Consultant").
WHEREAS Push wishes to disclose to the Consultant certain Confidential
Information for the purposes of information and/or evaluation, providing
services to Push in connection with developing or testing Push's products or the
Confidential Information ("the Purpose").
Now THEREFORE, in consideration of disclosure of Confidential
Information by Push to the Consultant, the parties agree as follows:
Definitions
1. In this Agreement, including the recital, the following words and phrases
shall have the following meanings unless the context otherwise requires:
"Confidential Information" means any and all information, including but not
limited to descriptions, designs, plans, specifications, schematics,
compilations, program, methods, techniques, formulas, processes, information,
documentation, intellectual property, trade secrets, concepts, hardware,
software and industrial designs relating to Push and Push's technology, products
and business, marketing and technical plans, but does not include
Non-Proprietary Information;
"Non-Proprietary Information" means information which the Consultant proves:
(a) was within the public domain at the date of its disclosure to
the Consultant or which thereafter enters the public domain
through no fault of the Consultant (but only after it becomes
part of the public domain);
(b) is already known to the Consultant at the time of its
disclosure to the Consultant by Push and is not subject to
confidential restrictions as can be proven by contemporaneous
documentation;
111
<PAGE> 2
(c) following its disclosure by Push to the Consultant, is
received by the Consultant without obligation of confidence
from a third party who was lawfully in possession of such
information free of any obligation of confidence;
(d) has been approved for release by written authorization of
Push; or
(e) has been disclosed by court order or as otherwise required by
law (including without limitation to the extent that
disclosure may be required under applicable securities laws),
provided that the Consultant has notified Push immediately
upon learning of the possibility of any such court order or
legal requirement and has given Push a reasonable opportunity
(and cooperated with Push) to contest or limit the scope of
such required disclosure (including application for a
protective order).
Information shall not be deemed to be known to the Consultant or publicly known:
(a) merely because it is embraced by more general information in
the prior possession of the Consultant or others; or
(b) merely because it is expressed in public material in general
terms not specifically the same as Confidential Information.
2. Any Confidential Information provided to the Consultant shall be held in
strict confidence by the Consultant and, accordingly, the Consultant shall not:
(a) use any of the Confidential Information except as necessary
for the Purpose and shall not make, have made, or permit to be
made any copies of the Confidential Information except those
copies which are necessary for use of the Confidential
Information for the Purpose;
(b) make any disclosure of the Confidential Information (including
copies thereof, or methods or concepts utilized therein) to
any person or entity other than employees, contractors,
suppliers or consultants of the Consultant to whom such
disclosure is necessary for use of the Confidential
Information for the Purpose; or
(c) reverse-engineer, reverse-compile or reverse-assemble the
Confidential Information except as may be expressly permitted
by Push to enable use of the Confidential Information for the
Purpose.
3. The Consultant shall exercise the same degree of care, which shall not be
less than a reasonable degree of care, in safeguarding the Confidential
Information as it uses for its own proprietary information of like importance
and shall take appropriate action, by instruction or agreement with its
employees who are permitted access to Confidential Information, to satisfy its
obligations hereunder.
112
<PAGE> 3
4. All Confidential Information delivered by Push to the Consultant pursuant to
this Agreement shall be and remain the property of Push, and the Confidential
Information, and any copies thereof, shall be promptly returned to Push upon
request, or destroyed at Push's option.
5. Nothing contained in this Agreement shall be construed as granting or
conferring any rights by license or otherwise, expressly or impliedly, in, to or
by virtue of the Confidential Information or any part or portion thereof.
6. In the event of a breach by the Consultant of any provision of this
Agreement, Push shall, in addition to any other remedy available to it in
respect of such breach, be entitled to injunctive relief restraining the
Consultant from committing or continuing such breach.
7. The Consultant agrees that during the time it provides services to Push and
for a period of three (3) years thereafter, it will not engage, hold and
interest, provide services, or have any involvement whatsoever, either directly
or indirectly, in any business, entity, venture or undertaking competitive with
Push, or any associate or affiliate of Push (including any joint venture
associate or partner of Push) except with the prior written approval of Push.
8. The Consultant acknowledges that it will acquire considerable knowledge of,
and expertise in, certain areas of the products, business affairs and methods of
Push as well as Push's customers and suppliers, which knowledge and expertise
could be used by the Consultant to the serious detriment of Push and,
accordingly, the Consultant agrees that during the time it provides services to
Push and for a period of three (3) years after the Consultant ceases to provide
services to Push, it will not, either directly or indirectly, participate in
recruiting employees, other consultants or contractors of Push, or in the
solicitation of customers or suppliers of Push.
9. The parties agree that the parties, terms, covenants and provisions contained
in this Agreement are separate and severable from the others and are severable
from this Agreement, without affecting the validity of the remaining parties,
terms, covenants and provisions.
10. This Agreement shall be governed by and interpreted in accordance with the
laws in force in the Province of Alberta.
11. The parties agree that words including a singular number shall include
plural number and vice versa; words including a gender shall include all other
genders.
12. This Agreement sets forth the entire understanding and agreement between the
parties hereto and supersedes all prior contracts, agreements and understanding
between the parties pertaining to the subject matter of this Agreement, and no
addition to or modification of this Agreement shall be binding on other parties
hereto unless reduced to writing and duly executed by all of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year
113
<PAGE> 4
first above written.
PUSH TECHNOLOGIES INC. WHITE LINE COMMUNICATIONS LTD.
Per: /s/ Todd Simpson Per: /s/ Susan Hubele
------------------------- -------------------------------
Name: Todd Simpson Name: Susan Hubele
------------------------- -------------------------------
Title: Vice President Title: Creative Development
----------------------- -----------------------------
/s/ Susan Hubele
-----------------------------------
SUSAN HUBELE
PUSH ENTERTAINMENT INC.
Per: /s/ Todd Simpson
-------------------------
Name: Todd Simpson
-------------------------
Title: Vice President
-----------------------
114
<PAGE> 1
NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
This Agreement made as of the 10th day of June, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC. and PUSH ENTERTAINMENT INC,
bodies corporate having offices in the City of Calgary, in the Province
of Alberta, (hereafter collectively referred to as "Push"),
- and -
DONG PAN, residing at the City of Calgary, in the Province of Alberta,
(hereafter referred to as "the Consultant").
WHEREAS Push wishes to disclose to the Consultant certain Confidential
Information for the purposes of information and/or evaluation, providing
services to Push in connection with developing or testing Push's products or the
Confidential Information ("the Purpose").
Now THEREFORE, in consideration of disclosure of Confidential
Information by Push to the Consultant, the parties agree as follows:
Definitions
1. In this Agreement, including the recital, the following words and phrases
shall have the following meanings unless the context otherwise requires:
"Confidential Information" means any and all information, including but not
limited to descriptions, designs, plans, specifications, schematics,
compilations, program, methods, techniques, formulas, processes, information,
documentation, intellectual property, trade secrets, concepts, hardware,
software and industrial designs relating to Push and Push's technology, products
and business, marketing and technical plans, but does not include
Non-Proprietary Information;
"Non-Proprietary Information" means information which the Consultant proves:
(a) was within the public domain at the date of its disclosure to
the Consultant or which thereafter enters the public domain
through no fault of the Consultant (but only after it becomes
part of the public domain);
(b) is already known to the Consultant at the time of its
disclosure to the Consultant by Push and is not subject to
confidential restrictions as can be proven by contemporaneous
documentation;
115
<PAGE> 2
(c) following its disclosure by Push to the Consultant, is
received by the Consultant without obligation of confidence
from a third party who was lawfully in possession of such
information free of any obligation of confidence;
(d) has been approved for release by written authorization of
Push; or
(e) has been disclosed by court order or as otherwise required by
law (including without limitation to the extent that
disclosure may be required under applicable securities laws),
provided that the Consultant has notified Push immediately
upon learning of the possibility of any such court order or
legal requirement and has given Push a reasonable opportunity
(and cooperated with Push) to contest or limit the scope of
such required disclosure (including application for a
protective order).
Information shall not be deemed to be known to the Consultant or publicly known:
(a) merely because it is embraced by more general information in
the prior possession of the Consultant or others; or
(b) merely because it is expressed in public material in general
terms not specifically the same as Confidential Information.
2. Any Confidential Information provided to the Consultant shall be held in
strict confidence by the Consultant and, accordingly, the Consultant shall not:
(a) use any of the Confidential Information except as necessary
for the Purpose and shall not make, have made, or permit to be
made any copies of the Confidential Information except those
copies which are necessary for use of the Confidential
Information for the Purpose;
(b) make any disclosure of the Confidential Information (including
copies thereof, or methods or concepts utilized therein) to
any person or entity other than employees, contractors,
suppliers or consultants of the Consultant to whom such
disclosure is necessary for use of the Confidential
Information for the Purpose; or
(c) reverse-engineer, reverse-compile or reverse-assemble the
Confidential Information except as may be expressly permitted
by Push to enable use of the Confidential Information for the
Purpose.
3. The Consultant shall exercise the same degree of care, which shall not be
less than a reasonable degree of care, in safeguarding the Confidential
Information as it uses for its own proprietary information of like importance
and shall take appropriate action, by instruction or agreement with its
employees who are permitted access to Confidential Information, to satisfy its
obligations hereunder.
116
<PAGE> 3
4. All Confidential Information delivered by Push to the Consultant pursuant to
this Agreement shall be and remain the property of Push, and the Confidential
Information, and any copies thereof, shall be promptly returned to Push upon
request, or destroyed at Push's option.
5. Nothing contained in this Agreement shall be construed as granting or
conferring any rights by license or otherwise, expressly or impliedly, in, to or
by virtue of the Confidential Information or any part or portion thereof.
6. In the event of a breach by the Consultant of any provision of this
Agreement, Push shall, in addition to any other remedy available to it in
respect of such breach, be entitled to injunctive relief restraining the
Consultant from committing or continuing such breach.
7. The Consultant agrees that during the time it provides services to Push and
for a period of three (3) years thereafter, it will not engage, hold and
interest, provide services, or have any involvement whatsoever, either directly
or indirectly, in any business, entity, venture or undertaking competitive with
Push, or any associate or affiliate of Push (including any joint venture
associate or partner of Push) except with the prior written approval of Push.
8. The Consultant acknowledges that it will acquire considerable knowledge of,
and expertise in, certain areas of the products, business affairs and methods of
Push as well as Push's customers and suppliers, which knowledge and expertise
could be used by the Consultant to the serious detriment of Push and,
accordingly, the Consultant agrees that during the time it provides services to
Push and for a period of three (3) years after the Consultant ceases to provide
services to Push, it will not, either directly or indirectly, participate in
recruiting employees, other consultants or contractors of Push, or in the
solicitation of customers or suppliers of Push.
9. The parties agree that the parties, terms, covenants and provisions contained
in this Agreement are separate and severable from the others and are severable
from this Agreement, without affecting the validity of the remaining parties,
terms, covenants and provisions.
10. This Agreement shall be governed by and interpreted in accordance with the
laws in force in the Province of Alberta.
11. The parties agree that words including a singular number shall include
plural number and vice versa; words including a gender shall include all other
genders.
12. This Agreement sets forth the entire understanding and agreement between the
parties hereto and supersedes all prior contracts, agreements and understanding
between the parties pertaining to the subject matter of this Agreement, and no
addition to or modification of this Agreement shall be binding on other parties
hereto unless reduced to writing and duly executed by all of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year
117
<PAGE> 4
first above written.
PUSH TECHNOLOGIES INC.
Per: /s/ Todd Simpson /s/ Dong Pan
------------------------- -------------------------------
DONG PAN
Name: Todd Simpson
-------------------------
Title: Vice President
-----------------------
PUSH ENTERTAINMENT INC.
Per: /s/ Todd Simpson
-------------------------
Name: Todd Simpson
-------------------------
Title: Vice President
-----------------------
118
<PAGE> 1
NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
This Agreement made as of the 1st day of April, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC. and PUSH ENTERTAINMENT INC, bodies corporate
having offices in the City of Calgary, in the Province of Alberta,
(hereafter collectively referred to as "Push"),
- and -
JIM TURNER, residing at the Town of Cremona, in the Province of
Alberta, (hereafter referred to as "the Consultant").
WHEREAS Push wishes to disclose to the Consultant certain Confidential
Information for the purposes of information and/or evaluation, providing
services to Push in connection with developing or testing Push's products or the
Confidential Information ("the Purpose").
Now THEREFORE, in consideration of disclosure of Confidential Information
by Push to the Consultant, the parties agree as follows:
Definitions
1. In this Agreement, including the recital, the following words and phrases
shall have the following meanings unless the context otherwise requires:
"Confidential Information" means any and all information, including but not
limited to descriptions, designs, plans, specifications, schematics,
compilations, program, methods, techniques, formulas, processes, information,
documentation, intellectual property, trade secrets, concepts, hardware,
software and industrial designs relating to Push and Push's technology, products
and business, marketing and technical plans, but does not include
Non-Proprietary Information;
"Non-Proprietary Information" means information which the Consultant proves:
(a) was within the public domain at the date of its disclosure to the
Consultant or which thereafter enters the public domain through no
fault of the Consultant (but only after it becomes part of the
public domain);
(b) is already known to the Consultant at the time of its disclosure to
the Consultant by Push and is not subject to confidential
restrictions as can be proven by contemporaneous documentation;
119
<PAGE> 2
(c) following its disclosure by Push to the Consultant, is
received by the Consultant without obligation of confidence
from a third party who was lawfully in possession of such
information free of any obligation of confidence;
(d) has been approved for release by written authorization of
Push; or
(e) has been disclosed by court order or as otherwise required by
law (including without limitation to the extent that
disclosure may be required under applicable securities laws),
provided that the Consultant has notified Push immediately
upon learning of the possibility of any such court order or
legal requirement and has given Push a reasonable opportunity
(and cooperated with Push) to contest or limit the scope of
such required disclosure (including application for a
protective order).
Information shall not be deemed to be known to the Consultant or publicly known:
(a) merely because it is embraced by more general information in the
prior possession of the Consultant or others; or
(b) merely because it is expressed in public material in general terms
not specifically the same as Confidential Information.
2. Any Confidential Information provided to the Consultant shall be held in
strict confidence by the Consultant and, accordingly, the Consultant shall not:
(a) use any of the Confidential Information except as necessary
for the Purpose and shall not make, have made, or permit to be
made any copies of the Confidential Information except those
copies which are necessary for use of the Confidential
Information for the Purpose;
(b) make any disclosure of the Confidential Information (including
copies thereof, or methods or concepts utilized therein) to
any person or entity other than employees, contractors,
suppliers or consultants of the Consultant to whom such
disclosure is necessary for use of the Confidential
Information for the Purpose; or
(c) reverse-engineer, reverse-compile or reverse-assemble the
Confidential Information except as may be expressly permitted by
Push to enable use of the Confidential Information for the Purpose.
120
<PAGE> 3
3. The Consultant shall exercise the same degree of care, which shall not be
less than a reasonable degree of care, in safeguarding the Confidential
Information as it uses for its own proprietary information of like importance
and shall take appropriate action, by instruction or agreement with its
employees who are permitted access to Confidential Information, to satisfy its
obligations hereunder.
4. All Confidential Information delivered by Push to the Consultant pursuant to
this Agreement shall be and remain the property of Push, and the Confidential
Information, and any copies thereof, shall be promptly returned to Push upon
request, or destroyed at Push's option.
5. Nothing contained in this Agreement shall be construed as granting or
conferring any rights by license or otherwise, expressly or impliedly, in, to or
by virtue of the Confidential Information or any part or portion thereof.
6. In the event of a breach by the Consultant of any provision of this
Agreement, Push shall, in addition to any other remedy available to it in
respect of such breach, be entitled to injunctive relief restraining the
Consultant from committing or continuing such breach.
7. The Consultant agrees that during the time it provides services to Push and
for a period of three (3) years thereafter, it will not engage, hold and
interest, provide services, or have any involvement whatsoever, either directly
or indirectly, in any business, entity, venture or undertaking competitive with
Push, or any associate or affiliate of Push (including any joint venture
associate or partner of Push) except with the prior written approval of Push.
8. The Consultant acknowledges that it will acquire considerable knowledge of,
and expertise in, certain areas of the products, business affairs and methods of
Push as well as Push's customers and suppliers, which knowledge and expertise
could be used by the Consultant to the serious detriment of Push and,
accordingly, the Consultant agrees that during the time it provides services to
Push and for a period of three (3) years after the Consultant ceases to provide
services to Push, it will not, either directly or indirectly, participate in
recruiting employees, other consultants or contractors of Push, or in the
solicitation of customers or suppliers of Push.
9. The parties agree that the parties, terms, covenants and provisions contained
in this Agreement are separate and severable from the others and are severable
from this Agreement, without affecting the validity of the remaining parties,
terms, covenants and provisions.
10. This Agreement shall be governed by and interpreted in accordance with the
laws in force in the Province of Alberta.
11. The parties agree that words including a singular number shall include
plural number and vice versa; words including a gender shall include all other
genders.
121
<PAGE> 4
12. This Agreement sets forth the entire understanding and agreement between the
parties hereto and supersedes all prior contracts, agreements and understanding
between the parties pertaining to the subject matter of this Agreement, and no
addition to or modification of this Agreement shall be binding on other parties
hereto unless reduced to writing and duly executed by all of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PUSH TECHNOLOGIES INC. JIM TURNER
Per: /s/ Todd Simpson Per: /s/ Jim Turner
------------------------- ---------------------------
Name:
-------------------------
Title:
------------------------
PUSH ENTERTAINMENT INC.
Per: /s/ Todd Simpson
-------------------------
Name:
-------------------------
Title:
------------------------
122
<PAGE> 1
NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
This Agreement made as of the 1st day of April, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC. and PUSH ENTERTAINMENT INC, bodies corporate
having offices in the City of Calgary, in the Province of Alberta,
(hereafter collectively referred to as "Push"),
- and -
P. RANDALL HESS, residing at the Town of Cremona, in the Province of
Alberta, (hereafter referred to as "the Consultant").
WHEREAS Push wishes to disclose to the Consultant certain Confidential
Information for the purposes of information and/or evaluation, providing
services to Push in connection with developing or testing Push's products or the
Confidential Information ("the Purpose").
Now THEREFORE, in consideration of disclosure of Confidential Information
by Push to the Consultant, the parties agree as follows:
Definitions
1. In this Agreement, including the recital, the following words and phrases
shall have the following meanings unless the context otherwise requires:
"Confidential Information" means any and all information, including but not
limited to descriptions, designs, plans, specifications, schematics,
compilations, program, methods, techniques, formulas, processes, information,
documentation, intellectual property, trade secrets, concepts, hardware,
software and industrial designs relating to Push and Push's technology, products
and business, marketing and technical plans, but does not include
Non-Proprietary Information;
"Non-Proprietary Information" means information which the Consultant proves:
(a) was within the public domain at the date of its disclosure to the
Consultant or which thereafter enters the public domain through no
fault of the Consultant (but only after it becomes part of the
public domain);
(b) is already known to the Consultant at the time of its disclosure to
the Consultant by Push and is not subject to confidential
restrictions as can be proven by contemporaneous documentation;
123
<PAGE> 2
(c) following its disclosure by Push to the Consultant, is
received by the Consultant without obligation of confidence
from a third party who was lawfully in possession of such
information free of any obligation of confidence;
(d) has been approved for release by written authorization of
Push; or
(e) has been disclosed by court order or as otherwise required by
law (including without limitation to the extent that
disclosure may be required under applicable securities laws),
provided that the Consultant has notified Push immediately
upon learning of the possibility of any such court order or
legal requirement and has given Push a reasonable opportunity
(and cooperated with Push) to contest or limit the scope of
such required disclosure (including application for a
protective order).
Information shall not be deemed to be known to the Consultant or publicly known:
(a) merely because it is embraced by more general information in the
prior possession of the Consultant or others; or
(b) merely because it is expressed in public material in general terms
not specifically the same as Confidential Information.
2. Any Confidential Information provided to the Consultant shall be held in
strict confidence by the Consultant and, accordingly, the Consultant shall not:
(a) use any of the Confidential Information except as necessary
for the Purpose and shall not make, have made, or permit to be
made any copies of the Confidential Information except those
copies which are necessary for use of the Confidential
Information for the Purpose;
(b) make any disclosure of the Confidential Information (including
copies thereof, or methods or concepts utilized therein) to
any person or entity other than employees, contractors,
suppliers or consultants of the Consultant to whom such
disclosure is necessary for use of the Confidential
Information for the Purpose; or
(c) reverse-engineer, reverse-compile or reverse-assemble the
Confidential Information except as may be expressly permitted by
Push to enable use of the Confidential Information for the Purpose.
124
<PAGE> 3
3. The Consultant shall exercise the same degree of care, which shall not be
less than a reasonable degree of care, in safeguarding the Confidential
Information as it uses for its own proprietary information of like importance
and shall take appropriate action, by instruction or agreement with its
employees who are permitted access to Confidential Information, to satisfy its
obligations hereunder.
4. All Confidential Information delivered by Push to the Consultant pursuant to
this Agreement shall be and remain the property of Push, and the Confidential
Information, and any copies thereof, shall be promptly returned to Push upon
request, or destroyed at Push's option.
5. Nothing contained in this Agreement shall be construed as granting or
conferring any rights by license or otherwise, expressly or impliedly, in, to or
by virtue of the Confidential Information or any part or portion thereof.
6. In the event of a breach by the Consultant of any provision of this
Agreement, Push shall, in addition to any other remedy available to it in
respect of such breach, be entitled to injunctive relief restraining the
Consultant from committing or continuing such breach.
7. The Consultant agrees that during the time it provides services to Push and
for a period of three (3) years thereafter, it will not engage, hold and
interest, provide services, or have any involvement whatsoever, either directly
or indirectly, in any business, entity, venture or undertaking competitive with
Push, or any associate or affiliate of Push (including any joint venture
associate or partner of Push) except with the prior written approval of Push.
8. The Consultant acknowledges that it will acquire considerable knowledge of,
and expertise in, certain areas of the products, business affairs and methods of
Push as well as Push's customers and suppliers, which knowledge and expertise
could be used by the Consultant to the serious detriment of Push and,
accordingly, the Consultant agrees that during the time it provides services to
Push and for a period of three (3) years after the Consultant ceases to provide
services to Push, it will not, either directly or indirectly, participate in
recruiting employees, other consultants or contractors of Push, or in the
solicitation of customers or suppliers of Push.
9. The parties agree that the parties, terms, covenants and provisions contained
in this Agreement are separate and severable from the others and are severable
from this Agreement, without affecting the validity of the remaining parties,
terms, covenants and provisions.
10. This Agreement shall be governed by and interpreted in accordance with the
laws in force in the Province of Alberta.
11. The parties agree that words including a singular number shall include
plural number and vice versa; words including a gender shall include all other
genders.
125
<PAGE> 4
12. This Agreement sets forth the entire understanding and agreement between the
parties hereto and supersedes all prior contracts, agreements and understanding
between the parties pertaining to the subject matter of this Agreement, and no
addition to or modification of this Agreement shall be binding on other parties
hereto unless reduced to writing and duly executed by all of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PUSH TECHNOLOGIES INC. JIM TURNER
Per: /s/ Dan Lowe /s/ P. Randall Hess
-------------------------- ---------------------------
P. Randall Hess
Name: Dan Lowe
-------------------------
Title: President
------------------------
PUSH ENTERTAINMENT INC.
Per: /s/ Dan Lowe
--------------------------
Name: Dan Lowe
-------------------------
Title: President
------------------------
126
<PAGE> 1
NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
This Agreement made as of the 1st day of April, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC. and PUSH ENTERTAINMENT INC, bodies corporate
having offices in the City of Calgary, in the Province of Alberta,
(hereafter collectively referred to as "Push"),
- and -
BRAD STECKEL, residing at the City of Calgary, in the Province of
Alberta, (hereafter referred to as "the Consultant").
WHEREAS Push wishes to disclose to the Consultant certain Confidential
Information for the purposes of information and/or evaluation, providing
services to Push in connection with developing or testing Push's products or the
Confidential Information ("the Purpose").
Now THEREFORE, in consideration of disclosure of Confidential Information
by Push to the Consultant, the parties agree as follows:
Definitions
1. In this Agreement, including the recital, the following words and phrases
shall have the following meanings unless the context otherwise requires:
"Confidential Information" means any and all information, including but not
limited to descriptions, designs, plans, specifications, schematics,
compilations, program, methods, techniques, formulas, processes, information,
documentation, intellectual property, trade secrets, concepts, hardware,
software and industrial designs relating to Push and Push's technology, products
and business, marketing and technical plans, but does not include
Non-Proprietary Information;
"Non-Proprietary Information" means information which the Consultant proves:
(a) was within the public domain at the date of its disclosure to the
Consultant or which thereafter enters the public domain through no
fault of the Consultant (but only after it becomes part of the
public domain);
(b) is already known to the Consultant at the time of its disclosure to
the Consultant by Push and is not subject to confidential
restrictions as can be proven by contemporaneous documentation;
127
<PAGE> 2
(c) following its disclosure by Push to the Consultant, is received by
the Consultant without obligation of confidence from a third party
who was lawfully in possession of such information free of any
obligation of confidence;
(d) has been approved for release by written authorization of Push; or
(e) has been disclosed by court order or as otherwise required by law
(including without limitation to the extent that disclosure may be
required under applicable securities laws), provided that the
Consultant has notified Push immediately upon learning of the
possibility of any such court order or legal requirement and has
given Push a reasonable opportunity (and cooperated with Push) to
contest or limit the scope of such required disclosure (including
application for a protective order).
Information shall not be deemed to be known to the Consultant or publicly known:
(a) merely because it is embraced by more general information in the
prior possession of the Consultant or others; or
(b) merely because it is expressed in public material in general terms
not specifically the same as Confidential Information.
2. Any Confidential Information provided to the Consultant shall be held in
strict confidence by the Consultant and, accordingly, the Consultant shall not:
(a) use any of the Confidential Information except as necessary for the
Purpose and shall not make, have made, or permit to be made any
copies of the Confidential Information except those copies which are
necessary for use of the Confidential Information for the Purpose;
(b) make any disclosure of the Confidential Information (including
copies thereof, or methods or concepts utilized therein) to any
person or entity other than employees, contractors, suppliers or
consultants of the Consultant to whom such disclosure is necessary
for use of the Confidential Information for the Purpose; or
(c) reverse-engineer, reverse-compile or reverse-assemble the
Confidential Information except as may be expressly permitted by
Push to enable use of the Confidential Information for the Purpose.
128
<PAGE> 3
3. The Consultant shall exercise the same degree of care, which shall not be
less than a reasonable degree of care, in safeguarding the Confidential
Information as it uses for its own proprietary information of like importance
and shall take appropriate action, by instruction or agreement with its
employees who are permitted access to Confidential Information, to satisfy its
obligations hereunder.
4. All Confidential Information delivered by Push to the Consultant pursuant to
this Agreement shall be and remain the property of Push, and the Confidential
Information, and any copies thereof, shall be promptly returned to Push upon
request, or destroyed at Push's option.
5. Nothing contained in this Agreement shall be construed as granting or
conferring any rights by license or otherwise, expressly or impliedly, in, to or
by virtue of the Confidential Information or any part or portion thereof.
6. In the event of a breach by the Consultant of any provision of this
Agreement, Push shall, in addition to any other remedy available to it in
respect of such breach, be entitled to injunctive relief restraining the
Consultant from committing or continuing such breach.
7. The Consultant agrees that during the time it provides services to Push and
for a period of three (3) years thereafter, it will not engage, hold and
interest, provide services, or have any involvement whatsoever, either directly
or indirectly, in any business, entity, venture or undertaking competitive with
Push, or any associate or affiliate of Push (including any joint venture
associate or partner of Push) except with the prior written approval of Push.
8. The Consultant acknowledges that it will acquire considerable knowledge of,
and expertise in, certain areas of the products, business affairs and methods of
Push as well as Push's customers and suppliers, which knowledge and expertise
could be used by the Consultant to the serious detriment of Push and,
accordingly, the Consultant agrees that during the time it provides services to
Push and for a period of three (3) years after the Consultant ceases to provide
services to Push, it will not, either directly or indirectly, participate in
recruiting employees, other consultants or contractors of Push, or in the
solicitation of customers or suppliers of Push.
9. The parties agree that the parties, terms, covenants and provisions contained
in this Agreement are separate and severable from the others and are severable
from this Agreement, without affecting the validity of the remaining parties,
terms, covenants and provisions.
10. This Agreement shall be governed by and interpreted in accordance with the
laws in force in the Province of Alberta.
11. The parties agree that words including a singular number shall include
plural number and vice versa; words including a gender shall include all other
genders.
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<PAGE> 4
12. This Agreement sets forth the entire understanding and agreement between the
parties hereto and supersedes all prior contracts, agreements and understanding
between the parties pertaining to the subject matter of this Agreement, and no
addition to or modification of this Agreement shall be binding on other parties
hereto unless reduced to writing and duly executed by all of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PUSH TECHNOLOGIES INC. BRAD STECKEL
Per: /s/ Todd Simpson Per: /s/ Brad Steckel
------------------------- ------------------------------
Name:
------------------------
Title:
-----------------------
PUSH ENTERTAINMENT INC.
Per: /s/ Todd Simpson
-------------------------
Name:
------------------------
Title:
-----------------------
130
<PAGE> 1
NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
This Agreement made as of the 9th day of March, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC. and PUSH ENTERTAINMENT INC, bodies corporate
having offices in the City of Calgary, in the Province of Alberta,
(hereafter collectively referred to as "Push"),
- and -
TODD REED, residing at the City of Calgary, in the Province of
Alberta, (hereafter referred to as "the Consultant").
WHEREAS Push wishes to disclose to the Consultant certain Confidential
Information for the purposes of information and/or evaluation, providing
services to Push in connection with developing or testing Push's products or the
Confidential Information ("the Purpose").
Now THEREFORE, in consideration of disclosure of Confidential Information
by Push to the Consultant, the parties agree as follows:
Definitions
1. In this Agreement, including the recital, the following words and phrases
shall have the following meanings unless the context otherwise requires:
"Confidential Information" means any and all information, including but not
limited to descriptions, designs, plans, specifications, schematics,
compilations, program, methods, techniques, formulas, processes, information,
documentation, intellectual property, trade secrets, concepts, hardware,
software and industrial designs relating to Push and Push's technology, products
and business, marketing and technical plans, but does not include
Non-Proprietary Information;
"Non-Proprietary Information" means information which the Consultant proves:
(a) was within the public domain at the date of its disclosure to the
Consultant or which thereafter enters the public domain through no
fault of the Consultant (but only after it becomes part of the
public domain);
(b) is already known to the Consultant at the time of its disclosure to
the Consultant by Push and is not subject to confidential
restrictions as can be proven by contemporaneous documentation;
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<PAGE> 2
(c) following its disclosure by Push to the Consultant, is
received by the Consultant without obligation of confidence
from a third party who was lawfully in possession of such
information free of any obligation of confidence;
(d) has been approved for release by written authorization of
Push; or
(e) has been disclosed by court order or as otherwise required by
law (including without limitation to the extent that
disclosure may be required under applicable securities laws),
provided that the Consultant has notified Push immediately
upon learning of the possibility of any such court order or
legal requirement and has given Push a reasonable opportunity
(and cooperated with Push) to contest or limit the scope of
such required disclosure (including application for a
protective order).
Information shall not be deemed to be known to the Consultant or publicly known:
(a) merely because it is embraced by more general information in the
prior possession of the Consultant or others; or
(b) merely because it is expressed in public material in general terms
not specifically the same as Confidential Information.
2. Any Confidential Information provided to the Consultant shall be held in
strict confidence by the Consultant and, accordingly, the Consultant shall not:
(a) use any of the Confidential Information except as necessary
for the Purpose and shall not make, have made, or permit to be
made any copies of the Confidential Information except those
copies which are necessary for use of the Confidential
Information for the Purpose;
(b) make any disclosure of the Confidential Information (including
copies thereof, or methods or concepts utilized therein) to
any person or entity other than employees, contractors,
suppliers or consultants of the Consultant to whom such
disclosure is necessary for use of the Confidential
Information for the Purpose; or
(c) reverse-engineer, reverse-compile or reverse-assemble the
Confidential Information except as may be expressly permitted
by Push to enable use of the Confidential Information for the
Purpose.
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<PAGE> 3
3. The Consultant shall exercise the same degree of care, which shall not be
less than a reasonable degree of care, in safeguarding the Confidential
Information as it uses for its own proprietary information of like importance
and shall take appropriate action, by instruction or agreement with its
employees who are permitted access to Confidential Information, to satisfy its
obligations hereunder.
4. All Confidential Information delivered by Push to the Consultant pursuant to
this Agreement shall be and remain the property of Push, and the Confidential
Information, and any copies thereof, shall be promptly returned to Push upon
request, or destroyed at Push's option.
5. Nothing contained in this Agreement shall be construed as granting or
conferring any rights by license or otherwise, expressly or impliedly, in, to or
by virtue of the Confidential Information or any part or portion thereof.
6. In the event of a breach by the Consultant of any provision of this
Agreement, Push shall, in addition to any other remedy available to it in
respect of such breach, be entitled to injunctive relief restraining the
Consultant from committing or continuing such breach.
7. The Consultant agrees that during the time it provides services to Push and
for a period of three (3) years thereafter, it will not engage, hold and
interest, provide services, or have any involvement whatsoever, either directly
or indirectly, in any business, entity, venture or undertaking competitive with
Push, or any associate or affiliate of Push (including any joint venture
associate or partner of Push) except with the prior written approval of Push.
8. The Consultant acknowledges that it will acquire considerable knowledge of,
and expertise in, certain areas of the products, business affairs and methods of
Push as well as Push's customers and suppliers, which knowledge and expertise
could be used by the Consultant to the serious detriment of Push and,
accordingly, the Consultant agrees that during the time it provides services to
Push and for a period of three (3) years after the Consultant ceases to provide
services to Push, it will not, either directly or indirectly, participate in
recruiting employees, other consultants or contractors of Push, or in the
solicitation of customers or suppliers of Push.
9. The parties agree that the parties, terms, covenants and provisions contained
in this Agreement are separate and severable from the others and are severable
from this Agreement, without affecting the validity of the remaining parties,
terms, covenants and provisions.
10. This Agreement shall be governed by and interpreted in accordance with the
laws in force in the Province of Alberta.
11. The parties agree that words including a singular number shall include
plural number and vice versa; words including a gender shall include all other
genders.
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<PAGE> 4
12. This Agreement sets forth the entire understanding and agreement between the
parties hereto and supersedes all prior contracts, agreements and understanding
between the parties pertaining to the subject matter of this Agreement, and no
addition to or modification of this Agreement shall be binding on other parties
hereto unless reduced to writing and duly executed by all of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
PUSH TECHNOLOGIES INC. TODD REED
Per: /s/ Todd Simpson Per: /s/ Todd Reed
---------------------------- ---------------------------
Name: Todd Simpson
--------------------------
Title:
-------------------------
PUSH ENTERTAINMENT INC.
Per: /s/ Todd Simpson
----------------------------
Name: Todd Simpson
--------------------------
Title:
-------------------------
134
<PAGE> 1
NON-DISCLOSURE AND NON-COMPETITION AGREEMENT
This Agreement made as of the 7th day of January, 1998.
BETWEEN:
PUSH TECHNOLOGIES INC. and PUSH ENTERTAINMENT INC, bodies corporate
having offices in the City of Calgary, in the Province of Alberta,
(hereafter collectively referred to as "Push"),
- and -
MARK HOLDEN, residing at the City of West Vancouver, in the Province
of British Columbia, and M. HOLDEN PRODUCTIONS LTD., a body
corporate having an office in the City of West Vancouver, in the
Province of British Columbia, (hereafter collectively referred to as
"the Consultant").
WHEREAS Push wishes to disclose to the Consultant certain Confidential
Information for the purposes of information and/or evaluation, providing
services to Push in connection with developing or testing Push's products or the
Confidential Information ("the Purpose").
Now THEREFORE, in consideration of disclosure of Confidential Information
by Push to the Consultant, the parties agree as follows:
Definitions
1. In this Agreement, including the recital, the following words and phrases
shall have the following meanings unless the context otherwise requires:
"Confidential Information" means any and all information, including but not
limited to descriptions, designs, plans, specifications, schematics,
compilations, program, methods, techniques, formulas, processes, information,
documentation, intellectual property, trade secrets, concepts, hardware,
software and industrial designs relating to Push and Push's technology, products
and business, marketing and technical plans, but does not include
Non-Proprietary Information;
"Non-Proprietary Information" means information which the Consultant proves:
(a) was within the public domain at the date of its disclosure to the
Consultant or which thereafter enters the public domain through no
fault of the Consultant (but only after it becomes part of the
public domain);
(b) is already known to the Consultant at the time of its disclosure to
the Consultant by Push and is not subject to confidential
restrictions as can be proven by contemporaneous documentation;
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<PAGE> 2
(c) following its disclosure by Push to the Consultant, is received by
the Consultant without obligation of confidence from a third party
who was lawfully in possession of such information free of any
obligation of confidence;
(d) has been approved for release by written authorization of Push; or
(e) has been disclosed by court order or as otherwise required by law
(including without limitation to the extent that disclosure may be
required under applicable securities laws), provided that the
Consultant has notified Push immediately upon learning of the
possibility of any such court order or legal requirement and has
given Push a reasonable opportunity (and cooperated with Push) to
contest or limit the scope of such required disclosure (including
application for a protective order).
Information shall not be deemed to be known to the Consultant or publicly known:
(a) merely because it is embraced by more general information in the
prior possession of the Consultant or others; or
(b) merely because it is expressed in public material in general terms
not specifically the same as Confidential Information.
2. Any Confidential Information provided to the Consultant shall be held in
strict confidence by the Consultant and, accordingly, the Consultant shall not:
(a) use any of the Confidential Information except as necessary for the
Purpose and shall not make, have made, or permit to be made any
copies of the Confidential Information except those copies which are
necessary for use of the Confidential Information for the Purpose;
(b) make any disclosure of the Confidential Information (including
copies thereof, or methods or concepts utilized therein) to any
person or entity other than employees, contractors, suppliers or
consultants of the Consultant to whom such disclosure is necessary
for use of the Confidential Information for the Purpose; or
(c) reverse-engineer, reverse-compile or reverse-assemble the
Confidential Information except as may be expressly permitted by
Push to enable use of the Confidential Information for the Purpose.
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<PAGE> 3
3. The Consultant shall exercise the same degree of care, which shall not be
less than a reasonable degree of care, in safeguarding the Confidential
Information as it uses for its own proprietary information of like importance
and shall take appropriate action, by instruction or agreement with its
employees who are permitted access to Confidential Information, to satisfy its
obligations hereunder.
4. All Confidential Information delivered by Push to the Consultant pursuant to
this Agreement shall be and remain the property of Push, and the Confidential
Information, and any copies thereof, shall be promptly returned to Push upon
request, or destroyed at Push's option.
5. Nothing contained in this Agreement shall be construed as granting or
conferring any rights by license or otherwise, expressly or impliedly, in, to or
by virtue of the Confidential Information or any part or portion thereof.
6. In the event of a breach by the Consultant of any provision of this
Agreement, Push shall, in addition to any other remedy available to it in
respect of such breach, be entitled to injunctive relief restraining the
Consultant from committing or continuing such breach.
7. The Consultant agrees that during the time it provides services to Push and
for a period of three (3) years thereafter, it will not engage, hold and
interest, provide services, or have any involvement whatsoever, either directly
or indirectly, in any business, entity, venture or undertaking competitive with
Push, or any associate or affiliate of Push (including any joint venture
associate or partner of Push) except with the prior written approval of Push.
8. The Consultant acknowledges that it will acquire considerable knowledge of,
and expertise in, certain areas of the products, business affairs and methods of
Push as well as Push's customers and suppliers, which knowledge and expertise
could be used by the Consultant to the serious detriment of Push and,
accordingly, the Consultant agrees that during the time it provides services to
Push and for a period of three (3) years after the Consultant ceases to provide
services to Push, it will not, either directly or indirectly, participate in
recruiting employees, other consultants or contractors of Push, or in the
solicitation of customers or suppliers of Push.
9. The parties agree that the parties, terms, covenants and provisions contained
in this Agreement are separate and severable from the others and are severable
from this Agreement, without affecting the validity of the remaining parties,
terms, covenants and provisions.
10. This Agreement shall be governed by and interpreted in accordance with the
laws in force in the Province of Alberta.
11. The parties agree that words including a singular number shall include
plural number and vice versa; words including a gender shall include all other
genders.
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<PAGE> 4
12. This Agreement sets forth the entire understanding and agreement between the
parties hereto and supersedes all prior contracts, agreements and understanding
between the parties pertaining to the subject matter of this Agreement, and no
addition to or modification of this Agreement shall be binding on other parties
hereto unless reduced to writing and duly executed by all of the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
PUSH TECHNOLOGIES INC. M. HOLDEN PRODUCTIONS LTD.
Per: /s/ Todd Simpson Per: /s/ Mark Holden
--------------------------- --------------------------------
Name: Todd Simpson Name: Mark Holden
--------------------------- --------------------------------
Title: Title: President
--------------------------- --------------------------------
/s/ Mark Holden
---------------------------------
MARK HOLDEN
PUSH ENTERTAINMENT INC.
Per: /s/ Todd Simpson
---------------------------
Name: Todd Simpson
---------------------------
Title:
---------------------------
138
<PAGE> 1
TECHNOLOGY TRANSFER AGREEMENT
THIS AGREEMENT made this 4th day of June 1997,
BETWEEN:
E-ZONE NETWORKS INC., a body corporate, incorporated under the laws
of the State of Delaware, whose principal office is located at 4048 East
Superior, Phoenix, Arizona, ("THE VENDOR"),
OF THE FIRST PART,
- and -
PUSH TECHNOLOGIES INC., a body corporate, incorporated under the
laws of the Province of Alberta, whose principal office is located at 600, 520 -
5th Avenue SW, Calgary, Alberta, ("THE PURCHASER"),
OF THE SECOND PART.
WHEREAS THE VENDOR is the owner of certain technology relating in part to
interactive three-dimensional (3-D) entertainment; and
WHEREAS THE PURCHASER is entering into this Agreement as agent for and on
behalf of a Corporation to be incorporated pursuant to the General Corporate Law
of the State of Delaware ( "THE PARENT") and which will become the sole owner of
all of the shares of the capital stock of THE PURCHASER; and
WHEREAS THE VENDOR wishes to transfer certain parts of such technology,
improvements made thereto and certain chattels to THE PURCHASER; and
WHEREAS THE PURCHASER wishes to transfer and assign all of the rights
granted by the terms of this Agreement to THE PARENT and have THE PARENT assume
and become liable to discharge the obligations imposed by the terms of this
Agreement once THE PARENT has been incorporated and organized; and
WHEREAS this Agreement is intended to set forth the terms and conditions
of the transfer of such technology, improvements and chattels to THE PURCHASER
and the assignment of this Agreement and the further transfer of such
technology, improvements and chattels to THE PARENT.
NOW, THEREFORE, in consideration of the premises and the mutual terms and
conditions set out herein the parties hereto agree as follows:
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<PAGE> 2
ARTICLE 1
DEFINITIONS
1.1 In this Agreement, the following capitalized terms used shall have the
meanings given below, except as otherwise expressly provided or unless the
context clearly requires otherwise:
(a) "AFFILIATE" when used to indicate a relationship with any specified
Person, means another Person that directly, or indirectly through one or
more intermediaries or otherwise, controls, or is controlled by, or is
under common control with, such specified Person. A corporation shall be
deemed to be an Affiliate of another corporation if one of them is the
Subsidiary of the other or if both are Subsidiaries of the same Person or
if each of them is directly or indirectly controlled by the same Person;
(b) "CONFIDENTIAL INFORMATION" shall mean all information relating to any
technology (including, without limitation, the Technology and the
Improvements), product, process or other intellectual property of THE
VENDOR, THE PURCHASER and THE PARENT and their Affiliates (including, but
not limited to, owned or licensed intellectual property rights, data,
know-how, samples, technical and non-technical materials, and
specifications) as well as any business plan or other confidential
commercial information of THE VENDOR, THE PURCHASER and THE PARENT and
their Affiliates. Notwithstanding the foregoing, information shall not be
considered "Confidential Information" to the extent that any other Person
possessing such information can demonstrate by written record or other
suitable physical evidence that:
(i) such specific information was lawfully in such other Person's
possession or control prior to the time such information was
disclosed to such other Person by THE VENDOR, THE PURCHASER or THE
PARENT;
(ii) such specific information was lawfully obtained by such other
Person from a third party under no obligation of confidentiality to
THE VENDOR, THE PURCHASER or THE PARENT; or
(iii) such specific information was at the time it was disclosed or
obtained by such other Person, or thereafter became, publicly known
otherwise than through a breach by such other Person of such other
Person's obligations to THE VENDOR, THE PURCHASER or THE PARENT;
(c) "EFFECTIVE DATE" shall mean the date of this Agreement;
(d) "COPYRIGHT" shall mean all copyright interests (registered or
unregistered) of THE VENDOR subsisting in any of the Confidential
Information, Technology or Trade Secrets;
(c) "DOLLARS" (including the symbol "$") shall mean U.S. dollars unless
otherwise indicated;
(f) "FIXED ASSETS" shall mean the chattels, equipment and property
described in Schedule "A";
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<PAGE> 3
(g) "IMPROVEMENTS" shall mean any enhancement of, improvement to, or
technology related to, the Technology developed, created or obtained by
THE VENDOR between the Effective Date and December 31, 1997;
(h) "PATENTS" shall mean all patent applications and patents (including,
without limitation, U.S. Patent Applications entitled A METHOD AND
APPARATUS FOR RE-SIZING AND ZOOMING IMAGES BY OPERATING DIRECTLY ON THEIR
DIGITAL TRANSFORMS and VIDEO MANIPULATION USING DIGITAL PROCESSING and any
and all additions, divisions, continuations, substitutions, extensions,
renewals, patent term extensions or revisions thereof) in relation to the
Technology and Improvements;
(i) "PERSON" shall mean an individual, partnership, joint venture,
syndicate, sole proprietorship, company or corporation with or without
share capital, unincorporated association, trust, trustee, executor,
administrator or other legal personal representative, regulatory body or
agency, government or governmental body or agency authority or entity
however designated or constituted;
(j) "TECHNOLOGY" shall mean all know-how, data, materials, inventions, and
other proprietary information and technology including any Patents,
Trademarks, Copyright and Trade Secrets of THE VENDOR and its Affiliates
relating to interactive 3-D entertainment and which without limiting the
generality of the foregoing shall include those products and processes
listed in Schedule "B";
(k) "TOWER NETWORK" shall mean that Audio/Visual broadcast communication
system using satellite, cable or internet, or a combination of any of
them, currently under development by THE VENDOR and which will provide
content for THE VENDOR's entertainment tower and headphone;
(l) "TRADE-MARKS" shall mean those trade names, trademarks (registered or
unregistered), and trade-mark applications for registration of THE VENDOR
relating to the Technology; and
(m) "TRADE SECRETS" shall mean all secret processes, data, computer
programs, formulae and technical information relating to the production or
use of the Technology and all non-technical materials related to the
business carried out using the Technology.
ARTICLE 2
INTERPRETATION
2.1 In this Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
(a) words importing the masculine gender include the feminine and neuter
genders, corporations, partnerships and other Persons, and words in the
singular include the plural, and vice versa, wherever the context
requires;
(b) all references to designated Articles, Sections and other subdivisions
are to the designated Articles, Sections and other subdivisions of this
Agreement;
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<PAGE> 4
(c) any reference to a statute will include and will be deemed to be a
reference to the regulations made pursuant to it, and to all amendments
made to the statute and regulations in force from time to time, and to any
statute or regulations that may be passed which has the effect of
supplementing, replacing or superseding the statute referred to or the
relevant regulations;
(d) any reference to a Person will include and will be deemed to be a
reference to any Person that is a successor to that Person;
(e) business day will be deemed to be a reference to any day which is not
a Saturday, Sunday or a day which is generally observed as a holiday in
Calgary, Alberta; and
(f) "hereof", "hereto", and "hereunder" mean and refer to this Agreement
and not to any particular Article, Section or other subdivision. Unless
something in the subject matter or context is inconsistent therewith,
references herein or in the Schedules to this Agreement, to Articles,
Sections, other subdivisions or Schedules, are to Articles, Sections,
other subdivisions and Schedules of and to this Agreement or of the
Schedule in which such reference is made.
2.2 Schedules "A", "B" and "C" are appended hereto and incorporated into this
Agreement.
ARTICLE 3
TECHNOLOGY TRANSFER AND ASSIGNMENT
3.1 THE VENDOR hereby assigns, transfers and conveys to THE PURCHASER absolutely
all right, title and interest in and to the Technology, Trade Secrets,
Copyright, Patents and Trademarks free and clear of any claim of any other
party.
3.2 THE VENDOR hereby assigns, transfers and conveys to THE PURCHASER absolutely
all right, title and interest in and to the Fixed Assets free and clear of any
claim of any other party.
3.3 The assignments and transfers in Sections 3.1 and 3.2 shall be considered
fully performed and non-executory.
3.4 THE VENDOR shall execute such documents as may be necessary or desirable for
THE PURCHASER to record the assignments and transfers described in this section.
THE PURCHASER and THE VENDOR may agree on an escrow agent or other trustee to
hold such written assignments and transfers until such time as they may be
recorded, if any.
3.5 THE VENDOR shall not enter into any agreement, transfer or grant of security
which would impair the rights of THE PURCHASER under this Article 3.
3.6 The Improvements shall belong to and be the exclusive property of THE
PURCHASER.
3.7 THE VENDOR acknowledges and agrees that THE PURCHASER is entering into this
Agreement as the agent for and on behalf of THE PARENT and that the terms of
this Agreement may be assigned and transferred by THE PURCHASER to THE PARENT
and that the obligations and liabilities imposed upon and assumed by THE
PURCHASER pursuant to this Agreement shall become those of THE PARENT upon THE
PURCHASER giving notice to THE VENDOR that THE PARENT has been incorporated.
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<PAGE> 5
ARTICLE 4
CONSIDERATION
4.1 THE PURCHASER shall pay to THE VENDOR for the rights granted by Section
3.1 and the property transferred by Section 3.2 of this Agreement the sum of TWO
HUNDRED THOUSAND DOLLARS ($200,000.00), by way of Promissory Note in the form
appended to this Agreement as Schedule "C".
4.2 THE PURCHASER shall pay to THE VENDOR for the Improvements that amount
presently estimated to be the sum of ONE HUNDRED AND FIFTY THOUSAND DOLLARS
($150,000.00), and which may be invoiced to THE PURCHASER or THE PARENT, as the
case may be, for the Improvements and which sum shall not in any event exceed
the sum of TWO HUNDRED THOUSAND DOLLARS ($200,000.00) without the written
consent and approval of THE PURCHASER or THE VENDOR, as the case may be, first
had and obtained.
4.3 THE PURCHASER hereby grants to THE VENDOR the license to use the Technology,
Improvement, Trade Secrets, Copyright, Patents and Trademarks for use in
conjunction with the Tower Network at such rate or rates as may be negotiated by
THE PURCHASER and THE VENDOR, acting reasonably and in good faith.
4.4 THE PURCHASER shall be liable for and shall pay all sales taxes (or
replacement or new sales taxes which are applicable on a similar basis) imposed
on or with respect to the payments provided for in Sections 4.1 and 4.2.
4.5 The license granted by Section 4.3 shall survive the termination of this
Agreement and shall remain in effect for twenty (20) years from the Effective
Date.
ARTICLE 5
CONFIDENTIAL INFORMATION
5.1 Treatment of Confidential Information
THE VENDOR, THE PURCHASER and THE PARENT shall maintain the Confidential
Information in confidence, and shall not disclose, divulge or otherwise
communicate the Confidential Information to others, or use it for any purpose,
and hereby agree to exercise every reasonable precaution to prevent and restrain
the unauthorized disclosure of such Confidential Information by any of their
employees, consultants, subcontractors, sublicensees, agents or any Person and
their respective directors, officers, employees, consultants, subcontractors,
sublicensees or agents.
5.2 Release from Restrictions
The provisions of Section 5.1 shall not apply to any Confidential
Information disclosed in order to comply with applicable laws or with
governmental regulations provided that prior written notice of such disclosure
the other party and the party making the disclosure takes reasonable and lawful
action to avoid and/or minimize the degree of such disclosure.
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5.3 Survival of Confidentiality Covenants
The covenants in this Article 5 shall survive the termination of this
Agreement and shall remain in effect for twenty (20) years from the Effective
Date.
ARTICLE 6
REGISTRATION
6.1 THE PURCHASER or THE PARENT may at any time request THE VENDOR to grant to
THE PURCHASER or THE PARENT formal documents in respect of any of the Patents,
Copyright, Trademarks, Improvements or the Fixed Assets in a form that complies
with the requirements of law and public authorities in each territory where
applicable to enable THE PURCHASER or THE PARENT at its expense, to become
registered owner under the Patents, Copyright, Trade-marks, Improvements or
Fixed Assets in each territory where applicable. THE PURCHASER or THE PARENT
shall bear all costs and expenses incurred in the registration of such formal
documents.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
7.1 Corporate Representations
Each party represents and warrants to the other that:
(a) it has all requisite right, power, authority and capacity to enter
into this Agreement and to consummate the actions contemplated hereby, and has
taken all necessary action to authorize the execution, delivery and performance
of this Agreement;
(b) the entering into of this Agreement and the performance of its
obligations hereunder does not contravene its charter documents or any
agreements, documents, orders, decrees or judgments to which such party is a
party or by which such party or its property is bound; and
(c) when executed and delivered by it, this Agreement will constitute the
legal, valid and binding obligation of it.
7.2 Intellectual Property Representations
THE VENDOR represents and warrants to THE PURCHASER that:
(a) THE VENDOR has title, rights by license and other agreements or such
other legal rights as are necessary to permit THE VENDOR to grant the
assignments, transfers and conveyances contemplated under this Agreement;
(b) THE VENDOR has taken all commercially reasonable measures necessary to
protect its rights in the Technology;
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<PAGE> 7
(c) to the best of THE VENDOR's knowledge, there is no basis upon which a
claim may be asserted against THE PURCHASER for infringement as a result of THE
PURCHASER's use of the Technology; and
(d) no suit or action has been commenced and no claim has been asserted in
writing against THE VENDOR with respect to the ownership or use by THE VENDOR of
the Technology or which prevents THE VENDOR from entering into this Agreement.
ARTICLE 8
INDEMNITIES
8.1 Each party shall indemnify and save harmless the other of, from and against
any losses, damage, costs (including legal fees and expenses) which the other
may suffer or incur by reason of:
(a) a breach of the covenants, representations and warranties set out in
Section 7.1 or 7.2 hereof as the case may be; and
(b) a breach of any of its obligations set forth in this Agreement.
ARTICLE 9
INFRINGEMENT
9.1 THE VENDOR shall promptly notify THE PURCHASER whenever it becomes aware of
any such actual or apparent infringement or unauthorized use of the Technology,
Improvements, Trade Secrets, Copyright, Patents or Trade-marks. THE PURCHASER
may, at its expense, take all steps that in THE PURCHASER's sole opinion and
discretion are necessary or desirable to protect the Technology, Improvements,
Trade Secrets, Copyright, Patents and Trademarks against such infringement.
9.2 THE VENDOR shall, if required by THE PURCHASER or THE PARENT and if
necessary for the purposes of Section 9.1, lend its name and shall otherwise do
all acts and things THE PURCHASER or THE PARENT may reasonably require to assist
in the conduct of any such action brought by THE PURCHASER or THE PARENT
pursuant to Section 9.1.
9.3 The proceeds from any judgment recovered or settlement made by THE PURCHASER
of THE PARENT in any action brought by it pursuant to Section 9.1, shall be used
to reimburse THE VENDOR for all expenses incurred by it in assisting THE
PURCHASER or THE PARENT in prosecuting the action, and to pay the amount of any
consequential damages to THE VENDOR and to pay THE PURCHASER's or THE PARENT's
costs and expenses incurred in such prosecution, and the remainder shall be THE
PURCHASER's or THE PARENT's.
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<PAGE> 8
ARTICLE 10
LIMITATION OF LIABILITY
10.1 No Warranty
It is agreed that THE VENDOR does not expressly or implicitly warrant that
the Technology, the Improvements or the Fixed Assets or the use of the
Technology, the Improvements or the Fixed Assets will meet the THE PURCHASER's
requirements. The use of the Technology, the Improvements and the Fixed Assets
hereunder are solely at THE PURCHASER's own risk.
10.2 Limitation of Liability
Section 10.1 hereof reflects an informed voluntary assumption by THE
PURCHASER of the risks (known and unknown) that may exist in connection with the
Technology, the Improvements and the Fixed Assets, and that such voluntary risk
assumption represents a fundamental part of the agreement reached between THE
VENDOR and THE PURCHASER.
ARTICLE 11
GENERAL
11.1 Waiver
Any waiver of forbearance in regard to the performance of this Agreement
shall operate only if in writing and shall apply only to the specified instance
and shall not affect the existence and continued applicability of the terms of
it thereafter.
11.2 Entire Agreement
This Agreement embodies all the terms binding between the parties in
relation to the Technology, the Improvements and the Fixed Assets and related
thereto and replaces all previous representations or proposals not embodied
herein.
11.3 Assignment
With the exception of the contemplated assignment and transfer to THE
PARENT neither party may otherwise assign any of its rights hereunder without
obtaining the prior consent of the other party.
11.4 Applicable Law
This Agreement shall be read and construed according to the laws of the
State of Delaware and the parties hereby submit to the jurisdiction of the
courts of Delaware and all courts having jurisdiction on appeal from them.
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<PAGE> 9
11.5 Amendments
This Agreement may not be varied except in writing signed by the parties.
11.6 Time
Time shall be of the essence hereof.
11.7 Severability
If any provision of this Agreement is held by a court to be unlawful,
invalid, unenforceable or in conflict with any rule of law, statute, ordinance
or regulating the validity and enforceability of the remaining provisions shall
not be thereby affected.
11.8 Notices
(a) All notices permitted or required by this Agreement shall be in
writing and shall be given by any one of the following means:
(i) by delivering it to the address of the party on a business day
during normal business hours;
(ii) by sending it to the address of the party by pre-paid airmail
post; or
(iii) by sending it by facsimile transmission to the facsimile of
the party.
(b) A notice shall be deemed to be given and received:
(i) if given in accordance with Section 11.8(a)(i) on the next
business day after the day of delivery in the place of delivery;
(ii) if given in accordance with Section 11.8(a)(ii) five clear
business days after the day of posting in the place of delivery;
(iii) if given in accordance with Section 11.8(a)(iii) on the next
business day after transmission in the place of delivery.
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<PAGE> 10
(c) The address, and facsimile numbers referred to in Section 11.8(a)
shall in the absence of notice to the contrary be set out as below:
IF TO E-ZONE NETWORKS INC.:
4048 East Superior
Phoenix, Arizona
85040
Attention: Danny Lowe
Facsimile: (602) 437-9860
IF TO PUSH TECHNOLOGIES INC.:
#600, 520 - 5th Avenue SW
Calgary, AB
T2P 3R7
Attention: Todd Simpson
Facsimile: (403) 263-9560
11.9 Further Agreements
Each party shall execute such agreements, deeds and documents and do or
cause to be executed or done all such acts and things as shall be necessary to
give effect to this Agreement.
11.10 Relationship of the Parties
This Agreement does not constitute and shall not be construed as
constituting a partnership or joint venture between the parties hereto. Neither
party shall have any right to obligate or bind the other in any manner
whatsoever and nothing contained in this Agreement shall give or is intended to
give any rights of any kind to persons not a party to this Agreement. Each party
shall ensure that neither it or any of its employees represent to any third
party that it or they are servant or agents of the other.
IN WITNESS WHEREOF the parties have caused this Agreement to be signed by their
respective corporate officers duly authorized as of the Effective Date.
-
ZONE NETWORKS INC.
PER:___________________
Danny D. Lowe, Pres. and CEO
PUSH TECHNOLOGIES INC.
PER:____________________
Todd G. Simpson, Vice Pres.
148
<PAGE> 11
SCHEDULE "A"
Two (2) personal computers with Open Step operating systems
Stereoscopic viewing hardware
149
<PAGE> 12
SCHEDULE "B"
1. THE VISOR
The Visor is a compact, portable Head Mounted Display that has been
designed to be compatible with standards established by NTSC (National
Television Standards Committee) or PAL/SECAM (the European equivalent of NTSC)
and VGA (Video Graphics Adapter) for 3-D. VGA data will not be downgraded to
NTSC quality, thus ensuring the highest possible quality. The Visor delivers a
high resolution, high intensity, 3-D stereoscopic video image. Users experience
that of large-screen viewing system in a personal, private viewing environment.
The Visor has distinct left/right LCD screens and is field sequential and line
sequential compatible. The product weighs less than eight ounces. The Visor is
designed to eliminate the hygienic concerns associated with public-use
applications. For the fitness club application, the Visor has been designed to
work with the Headphone.
2. C3-D PROCESSOR
The C3-D Processor is capable of real-time conversion of 2-D video to a
simulated 3-D video experience, utilizing a sub-set of the technology being
developed for the 3-D Professional Workstation. C3-D enables the reproduction of
3-D content libraries. C3-D interfaces with analog video sources such as VCRs,
cable television and digital devices with analog outputs, such as DSS and DVD. A
sub-set of C3-D functions is applicable to flat-screen displays in personal
computers and conventional television with other 3-D viewing products.
3. 3-D PROFESSIONAL WORKSTATION
The 3-D Professional Workstation is a suite of functions designed for use
by post-production and digital imaging professionals. These functions
significantly improve the production process for creating stereoscopic
compressed 3-D video and will generate high quality 3-D moving images from
existing 2-D library content.
4. V.I.A.
V.I.A. (Virtual Interactive Access) technology can be incorporated, in
software form, within MPEG decompression chipsets. These chipsets are currently
being designed for cable television set-top boxes, personal computers, DVD and
DSS. V.I.A. has been designed to comply with ISO/IEC MPEG standards and to be
capable of managing multiple video streams that will provide users with the
ability to select point-of-view camera options. V.I.A. technology will be
compatible with next generation digital set-top box technology, DSS, DVD and
personal computers.
150
<PAGE> 13
SCHEDULE "C"
PROMISSORY NOTE
AMOUNT: $200,000.00 U.S. DATE: JUNE 4, 1997
FOR VALUE RECEIVED, the undersigned, hereby promises to pay, on March 31,
1998, to E-ZONE NETWORKS INC., or order, the sum of TWO HUNDRED THOUSAND DOLLARS
in United States funds ($200,000.00 U.S.). The principal amount hereby secured
shall bear simple interest at the rate of five percent (5%) per annum, which
shall be payable in conjunction with the principal amount at maturity.
NOTICE OF DISHONOUR and presentation for payment are hereby waived.
DATED at the City of Calgary, in the Province of Alberta, this 4th of
June, 1997.
PUSH TECHNOLOGIES INC.
Per: ________________________________
TODD SIMPSON, Vice President
151
<PAGE> 1
THIS ASSIGNMENT made this 27th day of January, 1998, between:
PUSH TECHNOLOGIES INC.,
a body corporate, incorporated pursuant to
the laws of the Province of Alberta,
and having its head office at
600, 520 - 5th Avenue SW,
Calgary, Alberta,
(hereinafter referred to as "the Assignor"),
OF THE FIRST PART,
-and-
PUSH ENTERTAINMENT INC.,
a body corporate, incorporated pursuant to
the State of Delaware,
and having its head office at
600, 520 - 5th Avenue SW,
Calgary, Alberta,
(hereinafter referred to as "the Assignee")
OF THE SECOND PART.
WHEREAS the Assignor entered into an agreement with E-Z0NE NETWORKS INC.
(hereinafter referred to as "E-Zone") on the 4th day of June, 1997, (hereinafter
referred to as "the E-Zone Agreement");
AND WHEREAS by the terms of the E-Zone Agreement the Assignor purchased
certain technology and intellectual property from E-Zone;
AND WHEREAS by the terms of the E-Zone Agreement the Assignor became
obligated to pay E-Zone the sum of $200,000.00 in United States Dollars on or
before the 31st day of March, 1998, and which obligation is evidenced by a
promissory note of even date as the E-Zone Agreement (herein after referred to
as "the Promissory Note");
AND WHEREAS by the terms of a subsequent agreement dated the 21st day of
July, 1997, ("the Share Agreement") the Assignor covenanted and agreed to issue
to a group of shareholders of E-Zone the opportunity to subscribe for one (1)
share of the capital stock of the Assignor at and for the price of $0.001in
United States Dollars for every two (2) shares owned by such shareholders in the
capital stock of E-Zone;
AND WHEREAS the Assignor is further obligated by the terms of the E-Zone
Agreement to pay to E-Zone an additional amount for improvements made to the
said
152
<PAGE> 2
technology and intellectual property and which amount is not to exceed the sum
of $200,000.00 in United States Dollars (herein after referred to as "the
Purchase Price");
AND WHEREAS the Purchase Price has been established by the Assignor and
E-Zone to be the sum of $160,500.00 in United States Dollars;
AND WHEREAS the Assignor and E-Zone agreed that the rights and obligations
imposed upon the Assignor were to be assignable to the parent corporation of the
Assignor, once incorporated;
AND WHEREAS the Assignee is the owner of all of the issued and outstanding
shares of the capital stock of the Assignor and is the parent of the Assignor.
NOW THEREFORE THIS ASSIGNMENT WITNESSETH THAT in consideration of the sum
of One Dollar ($1.00) paid by the Assignee to the Assignor and other good and
valuable consideration (the receipt and sufficiency of which the Assignor hereby
acknowledges) the parties hereto agree one with the other as follows:
1. The italicized words and phrases used herein shall have those meanings
ascribed to them in the E-Zone Agreement.
2. The Assignor hereby assigns, transfers and sets over unto the Assignee all of
the Assignor's right, title and interest to the E-Zone Agreement and in and
to the Fixed Assets, the Improvements, the Technology, the Trade Marks, the
Patents and the Technology.
3. The Assignee covenants and agrees to discharge the obligations of the
Assignor to E-Zone imposed pursuant to the E-Zone Agreement and to duly pay
and discharge the obligation of the Assignor imposed by the Promissory Note
and to pay the Purchase Price as and when invoiced by the E-Zone.
4. The Assignee covenants and agrees to discharge the obligations of the
Assignor to the group of E-Zone shareholders referred in the Share Agreement
and to allow them the opportunity to subscribe for one (1) share of the
capital stock of the Assignee for every two (2) shares owned by such
shareholders in the capital stock of E-Zone at and for the price of $0.001 in
United States Dollars for each share purchased.
5. The Assignor covenants and agrees to do all such things and execute and
deliver all such documents and assurances as may be necessary to give effect
to this Agreement and without limitation to execute and deliver statutory
assignments of the Patents, the Trade Marks, and any patents or applications
which may pertain to or arise from the Improvements.
6. The Assignee covenants and agrees to save the Assignor harmless and to
indemnify the Assignor from any and all claims, demands, actions,
proceedings, judgments and
153
<PAGE> 3
the like (including all reasonably incurred legal fees and expenses) which
may be made, brought, commenced, maintained or obtained by E-Zone in respect
of the obligations imposed upon or assumed by the Assignor pursuant to the
E-Zone Agreement.
7. Each of the parties represents to the other that it has the requisite right,
power, authority and capacity to enter into this Agreement and the entering
into this Agreement does not contravene its charter documents or any
agreements, orders, decrees or judgments to which such party is a party and
that when this Agreement is executed and delivered this Agreement will
constitute a legal and binding obligation.
8. This Agreement shall not be varied or amended except in writing and signed by
each of the parties.
IN WITNESS WHEREOF the partied have caused this Agreement to be signed by their
respective corporate officers duly authorized as of the day and year first
written.
PUSH TECHNOLOGIES INC.
per:________________________
PUSH ENTERTAINMENT INC.
per:_______________________
154
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