Third Report of theTrustee

Transcription

District of
Division No.
Court No.
Estate No.
Ontario
07 - Hamilton
32-1494254
32-1494254
In the Matter of the Notice of Intention to make a
proposal of:
Parlay Entertainment Inc.
Insolvent Person
BDO CANADA LIMITED / BDO CANADA LIMITÉE
Trustee
Date of the Notice of Intention:
May 04, 2011
CERTIFICATE OF FILING OF A NOTICE OF INTENTION TO MAKE A PROPOSAL
Subsection 50.4 (1)
I, the undersigned, Official Receiver in and for this bankruptcy district, do hereby certify that the aforenamed
insolvent person filed a Notice of Intention to Make a Proposal under subsection 50.4 (1) of the Bankruptcy and
Insolvency Act.
Pursuant to subsection 69(1) of the Act, all proceedings against the aforenamed insolvent person are stayed as of
the date of filing of the Notice of Intention.
E-File/Dépôt Electronique
Date: May 04, 2011, 16:23
Official Receiver
Federal Building, 55 Bay Street North, 9th Floor, Hamilton, Ontario, Canada, L8R3P7, (877)376-9902
CONFIDENTIAL INFORMATION MEMORANDUM
June 2011
Page 1
Disclaimer and Notice of Confidentiality
This Confidential Information Memorandum ("Memorandum") has been prepared from information provided by Parlay
Entertainment Inc. (“Parlay” or the "Company"). This Memorandum is being provided to a limited number of parties who have
expressed a preliminary interest in entering into an asset purchase agreement with the Company and who have executed a non‐
non
disclosure agreement (“Non‐disclosure Agreement”).
The sole purpose of this Memorandum is to assist the recipient in deciding whether to proceed further with its investigation of
the Company. This Memorandum does not purport to be all‐inclusive or to necessarily contain all the information that a
prospective partner may desire in investigating the Company. This Memorandum contains certain statements, estimates and
projections of financial results with respect to the Company’s anticipated performance. Such statements, estimates and
projections of financial or operating results reflect various assumptions by the Company that may or may not prove to be accurate
and there can be no assurance that such results will be realized. Parlay and BDO Canada Limited (“BDO”) expressly disclaim any
and all liability for any errors and/or omissions that are contained in this Memorandum and make no representations or
warranties, expressed or implied. Only such representations or warranties as are made to the recipient by such entities or
persons in a definitive agreement when, as and if one is executed and subject to such limitations and restrictions as may be
specified in such agreement, will be binding on any such entities or persons.
Except as otherwise indicated,
indicated no independent accountant has audited,
audited reviewed,
reviewed compiled or is in any way associated with the
information presented herein, nor has an independent accountant expressed any conclusion thereon nor given any other form of
assurance with respect thereto.
Page 2
By accepting this Memorandum, the recipient agrees to keep confidential the information contained herein or made available in
connection with any further investigation of the Company, in accordance with the terms of the Non‐disclosure Agreement. This
Memorandum has been prepared for informational purposes relating to this transaction only and upon the express understanding
that it will be used only for the purposes set forth above. This Memorandum does not constitute an offering.
The Memorandum may not be photocopied, reproduced or distributed to others at any time without the prior written consent of
Parlay. Upon request, the recipient agrees to promptly return to Parlay all material including written material and notes of verbal
conversations received from Parlay and BDO without retaining any copies thereof.
In furnishing this Memorandum, neither Parlay nor BDO undertakes any obligation to provide the recipient with access to any
additional information. This Memorandum shall not be deemed to be an indication of the state of affairs of the Company nor
shall it constitute a representation that there has been no change in the business or affairs of the Company since the date hereof.
Parlay reserves the right to negotiate with one or more prospective partners at any time and to enter into a definitive agreement
without prior notice to the recipient or other prospective partners. Parlay reserves the right not to pursue any transaction and to
terminate, at any time, further participation in the investigation and proposal process by any party and to modify data,
procedures without assigning
g g anyy reason.
documentation and other p
Page 3
Under no circumstances should any of the Company's employees be contacted directly to answer any questions in relation to any
contemplated transaction, except in the ordinary course of business.
All communications, inquiries and requests for information relating to these materials or a possible transaction involving the
Company should be directed to the individuals at BDO listed below:
BDO Canada Limited
123 Front St. West, Suite 1200
Toronto, Ontario M5J 2M2
Phone: (416) 865‐0210
Fax: (416) 865‐0904
To the attention of:
Ken Pearl
Blair Davidson
Phone: (416) 369‐3063
Phone: (416) 369‐3112
kpearl@bdo.ca
p
bdavidson@bdo.ca
Page 4
Table of Contents
Business Overview
Page x
I
I.
S l P
Sales Process
P
Page 6 6
II.
Key Investment Considerations
Page 8
III. Company Overview
Page 10
IV. Service Offering and Technology
Service Offering and Technology
Page 16
Page 16
V.
Page 18
Customers
VI. People
Page 21
VII. Financial Information
Page 24
Appendices
A.
2009 Annual Information Form
B.
Bidding Procedures
Page 5
I. SALES PROCESS Page 6
Page 6
I. Sales Process
 On May 4, 2011, Parlay filed a notice of intention to make a proposal pursuant to the Bankruptcy and
Insolvency Act (“BIA”) naming BDO as the Proposal Trustee.
 By an order of the Ontario Superior Court of Justice (the “Court”) dated June 3, 2011, Parlay was
authorized to enter into an agreement to sell its assets to M Projects Assets S.A. for the purpose of
conducting a Stalking Horse Sales Process in accordance with the approved Bidding Procedures (see
Appendix B).
p of its bid to BDO byy 5:00 p
p.m. on
 A Qualified Bidder that desires to make a bid shall deliver written copies
July 18, 2011.
 The Auction, if applicable, shall be conducted at the offices of BDO at 11:00 a.m. on July 25, 2011.
 The sale of the Purchased Assets to any Successful Bidder is subject to the approval of the Court. The Sale
Approval Motion shall be made returnable on or before August 2, 2011.
Page 7
II. KEY INVESTMENT CONSIDERATIONS
Page 8
Page 8
II. Key Investment Considerations
 Acquisition of Parlay Entertainment Inc.’s assets provides an acquirer with:
 A best‐in‐class multi‐player, multi‐currency, multi‐language, completely open technology platform,
which will add‐to or fast‐track its position within the interactive gaming marketplace.
 More than a decade of expertise in online gaming, with respected and professionally trained
leadership and innovation.
patents which ggive acquirer
q
a call option
p
on interactive bingo
g within North America.
 North American p
 Ownership of proprietary technology solutions, multi‐jurisdictional solution platforms, existing
licensee base, revenue and extensive intellectual property.
 Access to a proven and unique interactive bingo platform to enhance content, traffic and stickiness
for online media properties.
Page 9
III. COMPANY OVERVIEW
Page 10
Page 10
Company Highlights
 Established developer, licensor and operator of interactive bingo
games
Key Company Facts
Revenue (FY2010) unaudited - $000’s
2,883
 First company in the world to commercialize an online bingo
platform
EBITDA (FY2010) unaudited - $000’s
(2,377)
 Commercial technology platform regarded as one of the most
robust in the online bingo industry
 Two growing managed solutions platforms (including Parlay Games
Limited in Alderney, UK)
 Modular design allows for rapid customization and deployment to
large customers and governments
 Experienced management team and employee base
Headcount – May 17, 2011 Parlay
Entertainment Inc.
23
Headcount – May 17, 2011 Parlay Games
Limited
21
Total consolidated headcount
44
Licensees – March 31, 2011
21
Locations – Oakville, Canada and
Alderney, UK
2
Page 11
Corporate Milestones
Year
Event
2000
Company founded and RTO in U.S. creates public company vehicle
2004
Redomestication of company to Canada
2005
C
Company obtains listing on TSXV
bt i li ti
TSXV
2005
Company moves to a new Canadian research and development facility in Oakville, Ontario
2006
Passage of Unlawful Internet Gambling Enforcement Act in U.S. which has immediate negative effect on the industry
2008
Divestiture transaction completed to sell U.S.‐facing licensee base
2009
Establishment of Parlay Games Limited in Alderney under purview of the Alderney Gambling Control Commission (“AGCC”)
2011
Company files a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act. The Company seeks offers for the purchase of its assets pursuant to a court‐approved Stalking Horse sales process
Page 12
Ownership Structure
Incorporated in Ontario (October 18, 2004)
Ontario Articles of Continuance
Articles of Amalgamation November 30, 2004
Originally incorporated in Florida (December 11, 1981)
100%
Florida Articles of Amendment February 2, 1999
public entity
R & D entity
100%
Parlay Games Limited
Incorporated in Alderney (April 24, 2009)
license and marketing company
Parlay Malta (Holding) Limited
Incorporated in Malta on February 14, 2005
Holding Company
100%
Parlay Malta Limited
Incorporated in Malta on February 14, 2005
Licensed entity
 Ignores Barbadian subsidiaries in the process of being wound up
Page 13
Operations and Facilities
The following table summarizes the company’s facilities:
Facility
Area
Square Footage
Oakville leased facility
2nd Floor stand alone building
13,500
Revenue Breakdown by Product/Service Type (Q1 2011 unaudited)
 information is available on Parlay’s profile at www.sedar.com. In particular, reference should be made to the April 22, 2009
annual information form (see Appendix A).
Page 14
Revenue Breakdown by Geography (Q1 2011 unaudited)
Q1 ‐ 2011 Revenue Source Breakdown
14%
Euro revenue ‐ proxy
for Continental
Europe
31%
55%
Pound Sterling
P
d St li
revenue ‐ proxy for
the UK
Other revenue
Page 15
IV. SERVICE OFFERING
Page 16
Page 16
IV. Service Offering
Service Lines
• Parlay develops and licenses software and provides support services to customers who operate internationally. In
2009, Parlay Games was launched in Alderney following the granting of a Full eGambling License to Parlay Games
Limited by the AGCC. This delivery channel offers a platform for a number remote gaming services open to all
operators. Parlay Games offers Parlay’s latest software platform Parlay5. The Company embarked on the creation of
its Parlay Games solution as an evolution from its entrenched software licensing model where Parlay generated its
reputation as the pioneer and leading innovator in the online bingo marketplace.
• Parlayy Games now allows the Company
p y to evolve from beingg a p
pure developer
p and licensor of bingo
g software to an
operator which develops and manages its own bingo network on behalf of its network partners. Parlay Games opens
up new markets and revenue streams for the Company as it is now able to compete with all service providers in its
sector – not simply software providers.
• Parlay owns and licenses its integrated technology systems. The Company earns installation and implementation fees
by providing and integrating its software; service fees generated from customization and support services; monthly
managed service fees generated from network partner access to the Parlay Games platforms and royalty fees which
are calculated as an annual fee or as a continuing percentage of the licensee's gaming revenue (the "Royalty").
License agreements vary in length from one to three years. The Royalty will vary depending on the technology
licensed, the performance of the licensee, the licensee's growth and the scope of the technology and support
services licensed. After the initial installation or implementation of the software, the Company also provides
t h i l supportt and
technical
d professional
f i
l services
i
t licensees
to
li
on terms
t
agreed
d to
t by
b the
th parties.
ti
Page 17
V. CUSTOMERS
Page 18
Page 18
V. Customers
Customers
 Information for 2010 and Q1 2011 based on unaudited financial
information
 Customer A, a new licensee in Q3 2010, represented 5% of 2010
fiscal year revenue
Customer
Years as
Customer
Revenue
(Cdn$000’s)
2011 Q1
% of Total
Revenue
2011 Q1
Revenue
(Cdn$000’s)
2010
% of Total
Revenue
2010
A
1
184
33%
146
5%
B
6
52
10%
531
18%
C
6
57
10%
268
9%
D
9
36
6%
134
5%
R
Revenue
ffrom top
t 10 customers
t
494
88%
1 806
1,806
63%
Revenue
562
100%
2,883
100%
Page 19
V. Customers
2010 Revenue Breakdown by Operating Entity
5%
Parlay Games Parlay
Games
Limited
39%
56%
 Earns royalties and support fees from standalone licensees who host their own application of Parlay
Parlay’ss software
Parlay Games Limited
 Earns royalties and monthly managed solution support fees earned from licensees using the AGCC regulated platform
 Provider of software to licensees operating in the U.K. under Parlay Malta’s U.K. software supply license
Page 20
VI. PEOPLE
Page 21
Page 21
VI. People
Executive Biographies
Scott F. White, Chief Executive Officer
Age 48, was called to the bar in the Province of Ontario in 1989. He is a graduate from the University of Toronto with a Bachelor of Arts
degree and the University of Windsor with a Bachelor of Laws degree. Prior to his involvement with Parlay, Mr. White was engaged in
private practice in the areas of corporate/commercial law, administrative law and business law. Mr. White served as the founding and
managing partner of Bush, Frankel & White, Barristers & Solicitors (1992‐2003, not in active practice from January 2000 to 2003) where he
serviced a multinational, primarily corporate, client base. In addition to practicing law, Mr. White has been involved in a number of private
and public enterprises including acting as a director. Mr. White is a founding shareholder of the Company.
Perry N. Malone, President and Chief Technology Officer
Age 48, graduated from Ryerson University in Toronto with a bachelor degree in Engineering in 1985. He has acquired extensive
experience as a computer systems architect and engineer, providing consulting services to some of Canada's leading corporations. From
February 1988 to January 1999, through his wholly owned consulting company Pericom Systems Corporation, Mr. Malone provided IT
consulting services as a Senior Systems Analyst to Canadian Pacific Limited, Bell Canada, IBM Canada and Toronto Dominion Securities. Mr.
Malone has served as the Company's Chief Technology Officer since its inception. Mr. Malone is a founding shareholder of the Company.
David Callander, Chief Financial Officer
Si
Since
2002 David
2002,
D id Callander
C ll d has
h served
d as the
th CFO off Parlay
P l Entertainment
E t t i
t Inc.
I (PEI:
(PEI TSXV).
TSXV) Prior
P i to
t that
th t time,
ti
M Callander
Mr.
C ll d served
d as a
partner with Ernst & Young LLP where he worked closely with many public and private companies. Mr. Callander has developed expertise
in U.S. and Canadian regulatory affairs and in the financial reporting, taxation, treasury and governance affairs of public companies. Mr.
Callander has a Bachelor of Arts (Honours) degree in Accountancy & Business Law and Economics from the University of Stirling in the U.K.
and is a member of the Institute of Chartered Accountants of Ontario and of Scotland. Mr. Callander is also a member of the Financial
Executives Institute.
Institute
Page 23
VII. FINANCIAL INFORMATION
Page 24
Page 24
Summary Income Statements
(in $000s)
FY2006A
FY2007A
FY2008A
FY2009A
FY2010A
Q1 2011
Revenue
9,028
8,032
8,538
3,354
2,883
562
Direct costs of revenue
4,124
5,032
4,181
3,429
3,304
803
Gross profit
4,904
3,000
4,357
(75)
(421)
(241)
54%
37%
51%
(2)%
(15)%
(43)%
Expenses
2,544
2,916
2,387
1,831
1,816
415
Adjusted
j
EBITDA
2,360
,
84
1,970
,
((1,906)
,
)
((2,237)
,
)
((656))
-
-
120
-
-
-
167
334
671
100
-
-
-
-
179
187
140
20
2,193
(250)
1,000
(2,193)
(2,377)
(676)
G
Gross
margin
i
Deduct (add) :
Additional management bonuses
Restructuring/transaction expenses
FX
EBITDA
Notes: 2006 and 2007 $U.S., 2008 – 2010, Q1 2011 $Cdn.
FY 2010 A and Q2011 are unaudited
Page 25
Balance Sheet December 31, 2010 (unaudited)
ASSETS - $Cdn.
$Cdn 000
000’s
s
LIABILITIES AND SHAREHOLDERS
SHAREHOLDERS’ EQUITY - $Cdn.
$Cdn 000
000’s
s
Current Assets
Current Liabilities
Accounts receivable
Cash
Other current assets
Current assets
504
1,001
414
Accounts payable and accruals
Short term debt
Current liabilities
1,666
170
1,836
1,919
Long-term debt
Long-term assets
Property, plant & equipment
Other long-term assets
Total assets
Total liabilities
0
1,836
91
184
2,194
Shareholders’ equity
Liabilities and shareholders’ equity
358
2,194
Page 26
APPENDIX A. 2009 ANNUAL INFORMATION FORM
Page 27
Page 27
TABLE OF CONTENTS
Page
PARLAY ENTERTAINMENT INC.
ANNUAL INFORMATION FORM
FOR THE YEAR ENDED
DECEMBER 31, 2009
April 19, 2010
INTRODUCTION...............................................................................................................................1
Glossary of Terms..................................................................................................................1
Currency.................................................................................................................................3
Caution Regarding Third Party Source Information and Forward-Looking
Statements ..............................................................................................................................3
CORPORATE STRUCTURE ...........................................................................................................4
Name, Address and Incorporation .........................................................................................4
Corporate Structure................................................................................................................4
GENERAL DEVELOPMENT OF THE BUSINESS ......................................................................5
General State of the Internet Gaming Industry ......................................................................5
General Business Description ................................................................................................6
BUSINESS DESCRIPTION AND STRATEGY..............................................................................9
RISK FACTORS...............................................................................................................................19
DIVIDENDS ......................................................................................................................................29
DESCRIPTION OF SHARE CAPITAL.........................................................................................29
MARKET FOR SECURITIES ........................................................................................................30
DIRECTORS AND OFFICERS ......................................................................................................30
LEGAL PROCEEDINGS ................................................................................................................31
CEASE TRADE ORDERS, BANKRUPTCIES, PENALTIES OR SANCTIONS .....................31
ESCROWED SECURITIES ............................................................................................................32
INTEREST OF MANAGEMENT AND OTHERS IN MATERIAL TRANSACTIONS ..........32
CONFLICTS OF INTEREST .........................................................................................................33
-i-
TABLE OF CONTENTS
(continued)
Page
TRANSFER AGENT AND REGISTRAR .....................................................................................33
MATERIAL CONTRACTS ............................................................................................................33
AUDIT COMMITTEE.....................................................................................................................33
Audit Committee Charter.....................................................................................................33
Composition of the Audit Committee..................................................................................33
Reliance on Certain Exemptions..........................................................................................33
Pre-Approval Policies And Procedures................................................................................33
External Auditor Service Fees .............................................................................................33
ADDITIONAL INFORMATION....................................................................................................34
SCHEDULE "A" AUDIT COMMITTEE CHARTER ................................................................35
-ii-
INTRODUCTION
Glossary of Terms
Whenever used in this Annual Information Form, the following terms shall have the meanings
set forth below:
“AGCC” means the Alderney Gambling Control Commission
"Common Shares" means the common shares in the capital of the Company.
"EBITDA" means earnings before interest, taxes and amortization.
"FLASH" is a bandwidth friendly and browser independent vector-graphic animation
technology. As long as different browsers are equipped with the necessary plug-ins, Flash
animations will look the same. With Flash, users can draw their own animations or import other
vector-based images.
"HTML" means Hyper Text Markup Language which is the authoring language used to create
documents on the World Wide Web. HTML defines the structure and layout of a Web document
by using a variety of tags and attributes. There are hundreds of tags used to format and layout the
information on a Website and on individual Web pages.
“iDTV” means interactive digital television whereby an interactive function is provided through
an Internet link embedded in the television functionality and which facilitates through two-way
communication entertainment services to the television viewer.
"Internet" is a global network connecting millions of computers.
"Intranet" is a network based on transmission control and Internet protocols (an Internet)
belonging to an organization, accessible only by such an organization's members, employees or
others with authorization.
"ISP" means Internet Service Provider.
"JAVA" is a high level programming language developed by Sun Microsystems. Compiled Java
code can be run on most computers because Java interpreters and runtime environments, known
as Java Virtual Machines (VMs), exist for most operating systems, including UNIX, the
Macintosh OS, and Windows. Bytecode can also be converted directly into machine language
instructions by a just-in-time compiler (HT). Java is a general purpose programming language
with a number of features that make the language well suited for use on the World Wide Web.
Small Java applications are called Java applets and can be downloaded from a Web server and
run on a computer by a Java-compatible web browser, such as Netscape Navigator or Microsoft
Internet Explorer.
"OBCA" means the Business Corporations Act (Ontario), as amended from time to time together
with all regulations promulgated pursuant thereto.
- 1-
"Online Bingo" means traditional bingo, commonly found in land-based bingo halls, which is
offered over the Internet using Parlay’s software.
"Online Casino" means traditional table games, slots and video poker games, commonly found
in land-based casinos, which are offered over the Internet using Parlay's software.
"Online Games" means Online Casino, Online Bingo and Soft Games.
"Parlay" or the "Company" means Parlay Entertainment Inc., an OBCA corporation.
"PEL" means Parlay Entertainment Limited, a wholly-owned subsidiary of the Company.
“PGL or Parlay Games” means Parlay Games Limited, a wholly-owned subsidiary of the
Company.
"PMHL" means Parlay Malta (Holding) Limited, a wholly-owned subsidiary of the Company.
"PML" means Parlay Malta Limited, a wholly-owned subsidiary of PMHL.
"Server" means a computer or device on a network that manages network resources.
"Soft Games" means (i) fixed odds games that are dependent upon chance as opposed to skill;
and (ii) those other games that do not form part of Parlay’s Online Casino or Bingo Hall.
"TSXV" or the "Exchange" means the TSX Venture Exchange.
"Website" is a location on the World Wide Web containing a home page as well as additional
documents and files.
"World Wide Web" or "Web" refers to a system of Internet servers that support specially
formatted documents. The documents are formatted in a language called HTML that supports
links to other documents as well as graphics, audio and video files.
-2-
Currency
In this Annual Information Form, unless otherwise noted, all dollar amounts are expressed in
Canadian dollars. On October 1, 2008, following the changed circumstances of the Company,
the Company’s functional currency changed to the Canadian dollar and the Company adopted
the Canadian dollar as its reporting currency
Caution Regarding Third Party Source Information and Forward-Looking Statements
Certain information contained in this Annual Information Form concerning the industry in which
the Company operates has been obtained from publicly available information from third party
sources. The Company has not verified the accuracy or completeness of any information
contained in such publicly available information. In addition, the Company has not determined
if there has been any omission by any such third party to disclose any facts, information or
events which may have occurred prior to or subsequent to the date as of which any such
information contained in such publicly available information has been furnished or which may
affect the significance or accuracy of any information contained in any such information and
summarized herein.
Certain statements contained in this Annual Information Form constitute forward-looking
statements. These statements relate to future events or the Company's future performance and
include the size of the online gaming industry. The online gaming industry, like the land-based
gaming industry, is fragmented and is difficult to capture. As a result, the Company itself has
made little effort to quantify either the on-line gaming market, or the bingo vertical subset
thereof. While third parties have estimated the on–line gaming marketplace, their own estimates
are subject to measurement risk and are subject to many of the risks identified by the Company.
However, the third party sources all indicate that the market is significant and growing which is
the important point to note in assessing the future performance of the Company. All statements
other than statements of historical fact may be forward-looking statements. Forward-looking
statements are often, but not always, identified by the use of words such as "seek", "anticipate",
"plan", "continue", "estimate", "expect", "may", "will", "project", "predict", "potential",
"targeting", "intend", "could", "might", "should", "believe" and similar expressions. These
statements involve known and unknown risks, uncertainties and other factors that may cause
actual results or events to differ materially from those anticipated in such forward-looking
statements. The Company believes that the expectations reflected in those forward-looking
statements are reasonable but no assurance can be given that these expectations will prove to be
correct and such forward-looking statements included in this Annual Information Form should
not be unduly relied upon. These statements speak only as of the date of this Annual Information
Form. The Company does not intend, and does not assume any obligation, to update these
forward-looking statements. No assurance can be given that actual results, performance or
achievement expressed in, or implied by these forward-looking statements will occur, or if they
do, that any benefits may be derived from them.
The Company's actual results could differ materially from those anticipated in these forwardlooking statements as a result of the risk factors set forth elsewhere in this Annual Information
Form. The material assumptions and information contained within those forward-looking
statements are based on past results and third party sources.
-3-
CORPORATE STRUCTURE
Name, Address and Incorporation
On December 11, 1981, Affiliated Adjusters, Inc. ("Affiliated"), a predecessor corporation of
Parlay, was incorporated pursuant to the laws of the State of Florida. On January 27, 1999,
Affiliated acquired 100% of the common shares of Precyse Corporation, an Ontario corporation
("Precyse"). Prior to the acquisition of Precyse, Affiliated conducted no business and had only
nominal assets and liabilities. On February 2, 1999, Affiliated changed its name to dot com
Entertainment Group, Inc. ("DCEG").
On October 6, 2004, DCEG was merged into dot com Entertainment Group, Inc., a Nevada
corporation which had been incorporated to effect a merger, pursuant to the laws of the State of
Nevada. The surviving Nevada corporation, dot com Entertainment Group, Inc. was then
continued under the OBCA on October 18, 2004 since a Florida corporation could not be directly
continued into Ontario.
On November 30, 2004, dot com Entertainment Group, Inc. amalgamated with its Canadian
subsidiaries, dot com Management Ltd., DCEG Inc., Parlay Entertainment Inc. and Precyse
Corporation (the "Amalgamation"). The name of the amalgamated corporation was Parlay
Entertainment Inc.
The principal and registered office of Parlay is located at 2305 Wyecroft Rd., 2nd Floor, Oakville,
Ontario, L6L 6R2.
Corporate Structure
The material subsidiaries of Parlay, all of which are 100% owned (directly or indirectly) by
Parlay, together with their respective jurisdictions of incorporation, are as follows:
-4-
Pa rlay Entertainme nt Inc.
Incorp orated in Ontario
100 %
P arlay Malta (Holding) Limi ted
Incor porated in Malta
100%
Parlay E nte rta inment L imite d
Incor porated in Barb ados
100%
Pa rlay Ga mes Limited
Incorpor ate d in Al derne y
100 %
Incor porated in Malta
GENERAL DEVELOPMENT OF THE BUSINESS
General State of the Internet Gaming Industry
Given the uncertainty surrounding Internet gaming and the different jurisdictional issues
impacting on all aspects of it, current and future legislation and court decisions will have a
material impact on our operations and financial results (Please see Government Regulation below)
Parlay’s managed solution operates under a full eGambling license in Alderney. Parlay also
maintains gaming/platform/supplier licenses in Malta and the U.K. Some of our customers hold
similar licenses and all are regulated by the laws of the country where they are located or where
their gaming servers are located.
All countries in which Parlay conducts its business have numerous laws which govern gambling
and advertising that relate to gambling. Many countries have now introduced regulations
attempting to restrict or prohibit Internet gaming. Others have chosen a more moderate position
and have attempted regulate Internet gambling, or are in the process of considering legislation to
enable that regulation. The U.K. and other European jurisdictions such as Alderney, the Isle of
Man, Malta and Gibraltar have passed legislation permitting its members to accept wagers from
any jurisdiction. Other countries, such as Italy and France have, or are in the process of,
implementing laws which will permit domestic players to wager on websites located within those
markets and where local taxes are accounted for. In some European territories, laws continue to
protect monopoly providers and therefore such laws attempt to prohibit all other supplies.
Some would argue that these restrictive approaches may conflict with the laws and treaties of the
E.U. (and that such laws are contrary to the free movement of trade in services within the E.U.)
and case law rendered by the European Court of Justice (the “ECJ”). Further, the European
-5-
Commission (the “E.C.”) has attempted to prompt the introduction of directives that would
harmonize online gaming within the E.U., which is in line with the EC’s stated goal of
encouraging a free and open cross-border market. These initiatives have been controversial and
there is no indication that any such harmonization will be achieved. As gaming operators and
players are located in numerous countries around the globe, there is substantial uncertainty with
respect to which government has authority to regulate and what component of the Internet
gaming transaction cycle that government should regulate.
The Unlawful Internet Gaming Enforcement Act (“UIGEA”), was enacted on October 13, 2006
in the U.S. Similar legislation could be adopted in other jurisdictions. There is a risk that
governmental authorities may view us or our licensees as having violated their local laws,
despite the Company’s contractual requirement that each of its licensees is licensed to operate an
Internet gaming business by the governmental authority it is governed by. Therefore, there is a
risk that civil and criminal proceedings, including class actions brought by or on behalf of
prosecutors or public entities, or private individuals, could be initiated against the Company, its
licensees, Internet service providers, credit card processors, advertisers and others involved in
the Internet gaming industry. Such potential proceedings could involve substantial litigation
expense, penalties, fines, seizure of assets, injunctions or other restrictions being imposed upon
us or our licensees or other business partners, while diverting the attention of key executives.
Such proceedings could have a material adverse effect on our business, revenues, operating
results and financial condition. There can be no assurance that legally enforceable prohibiting
legislation will not be proposed and passed in jurisdictions relevant or potentially relevant to our
business to legislate or regulate various aspects of the Internet or the Internet gaming industry (or
that existing laws in those jurisdictions will not be interpreted negatively). Compliance with any
such legislation may have a material adverse effect on our business, financial condition and
results of operations, either as a result of our determining that a jurisdiction should be blocked, or
because a local license may be costly for us or our licensees to obtain.
General Business Description
The Company is a software development and managed solutions company which develops and
licenses the use of its software products and other intellectual property to customers throughout
the world.
We are a pioneer and a global leading software developer and services provider in the field of
Internet bingo and related products. We are one of the industry’s longest-established publicly
traded online gaming software companies. Through our subsidiaries in Malta, Alderney and
Barbados, we provide software hosting and licensing, e-cash solutions, customer support and
marketing support services to third-party gaming operators and networked partners to Parlay
Games. In addition to the products we develop, we have integrated or are in the process of
integrating third party software development firms such as Wagerworks, Orbis, Odds Matrix,
Income Access and Entraction who will manage the development of additional products that are
not in our core competency but that our customers have requested.
The Company licenses its software products and provides services to an international client base
while retaining ownership and control of the software. Parlay Games provides access to a
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complete online gaming solution, which includes a turn-key Internet-based game suite providing
an online bingo platform and related games.
Our game suite features:
-
A variety of bingo, casino, table and slot games;
Full multi-language capability;
Full multi-currency capability;
First line and chat support and moderation; and
Electronic commerce systems and support for player deposits and withdrawals.
The Company derives its revenues from several sources, including its assessment of installation
and implementation fees, software licensing fees, fees for managed services and royalties from
the use of its software. Additionally, the Company generates revenue on a fee for service basis
by providing licensees with support services (such services include web site design and
integration, custom products, corporate branding, systems consulting services and technical
support, maintenance and software upgrades).
On May 22, 2008, Parlay announced that it had entered into a series of transactions with third
parties resulting in the divestiture of certain non-core assets, including several licensing
agreements, and the license of certain of Parlay’s older software technologies in perpetuity for
proceeds of approximately $2.8 million U.S. (the “Divestiture”). As a consequence of the
Divestiture, Parlay no longer generates royalty revenue from the customer relationships included
in the non-core assets.
Following the Divestiture, the Company has expended its service offering to include a full
managed solution which operates under a new subsidiary, PGL. PGL was incorporated under the
laws of Alderney on April 24, 2009 and was granted a Full eGambling License by the AGCC
effective June 4, 2009.
General Market Conditions
Parlay’s twelve-month period ended December 31, 2009, continues to coincide with a continuing
period of significant global economic volatility, generally referred to as the Credit Crunch. The
Credit Crunch is visible in the recent levels of global securities and credit markets volatility as
the worldwide economy has entered a recessionary period. Decreased wagering levels and
increased competition at the licensee level in Europe and in the U.K., have adversely impacted
revenue in 2009. The gaming industry is a volatile industry, which is sensitive to economic
conditions. When economic conditions are unfavourable, gaming industry revenues decline. Any
significant decline in general corporate conditions or the economy that affect consumer spending
could have a material adverse affect on the Company's business, financial condition and results
of operations.
For the twelve-month period ended December 31, 2009, Parlay noted that the combination of
decreased wagering levels and increased competition, at the licensee level, in its principal
markets being Europe, and particularly the U.K., has adversely impacted revenue. In addition,
the fall in the value of each of the pound sterling and the euro against the Canadian dollar has
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exacerbated the impact on Parlay’s revenue from the underlying decrease in gross wagering
activity. It is premature to assess whether there will be any further changes in wagering
behaviour by the Company’s licensees’ customers or changes in behaviour by the Company's
licensees as a result of the Credit Crunch. In addition, it has traditionally been the case that the
summer seasonal downturn in wagering activity would start to reverse in September. Other
participants in the on-line gaming vertical supply chain noted that the expected September
recovery in activity levels did not occur this year to the same extent as prior years. Therefore,
adverse and continuing seasonal impacts may also be contributing to weak wagering levels. A
worldwide, large scale recession may further impact Parlay’s business in many ways.
The following list of consequences includes matters that Parlay has long identified as risks to its
business but the Credit Crunch has exacerbated certain of these risks. These risks and
consequences (see Risk Factors) include, but may not be limited to: stock price and volume
volatility, a potential lack of availability for future funding of the Company, if required, a lack of
available credit for licensees’ players to continue to gamble online, increased risk around
collections from licensees, an increased likelihood of licensees defaulting on their contractual
obligations and the potential for fewer players being willing to gamble online or to gamble at
past levels of activity.
It is not feasible to predict all of the various possible ways in which the Credit Crunch could
adversely impact Parlay’s business or attempt to quantify any impact. However, the Credit
Crunch could have a material adverse effect on the Company’s revenue, results of operations and
financial condition. Parlay’s strategy to respond to the Credit Crunch on its revenues is to
continue to focus on the development, marketing, licensing and support of Internet gaming
technologies into regulated jurisdictions.
From the cost of conducting business perspective, the Credit Crunch has resulted in
unprecedented recent levels of volatility in foreign currency exchange markets, especially
between the major currencies in which the Company conducts its business. During the twelvemonth period ended December 31, 2009, the impact of continuing currency fluctuations on the
Company has been comparable to the prior year but continuing volatility in foreign currency
exchange markets leads to the possibility of further foreign exchange losses into fiscal 2010.
Between January 1, 2010 and March 31, 2010, the pound sterling and the euro fell in value
against the Canadian dollar by a further 8% and 9%, respectively. Parlay’s strategy to respond to
the increased volatility in foreign currency exchange markets is to place greater emphasis on
treasury matters. In addition, Parlay is continuing to focus on cost control in response to these
challenging economic times.
As a result of the impact from the Divestiture and other market conditions described throughout
this document, rrevenue decreased to $3,354,197 for the twelve-month period ended December
31, 2009, compared to $8,537,669 for the comparable period in 2008.
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BUSINESS DESCRIPTION AND STRATEGY
Summary
Parlay’s headquarters are located in Oakville, Ontario. The Company’s Common Shares trade
on the TSXV under the symbol "PEI".
Parlay develops and licenses software and provides support services to customers who operate
internationally. As noted above, in 2009, Parlay Games was launched in Alderney following the
granting of a Full eGambling License to Parlay Games Limited by the AGCC. This delivery
channel offers a platform for a number remote gaming services open to all operators. Parlay
Games offers Parlay’s latest software platform Parlay5. 2009 was a difficult year for Parlay, as
well as many other companies in the Internet gaming arena. Subsequent to the Divestiture the
Company embarked on the creation of its Parlay Games solution, which was an evolution from
its entrenched software licensing model where Parlay generated its reputation as the pioneer and
leading innovator in the online bingo marketplace.
Parlay Games now allows the Company to evolve from being a pure developer and licensor of
bingo software to an operator which develops and manages its own bingo network on behalf of
its network partners. Parlay Games opens up new markets and revenue streams for the Company
as it is now able to compete with all service providers in its sector – not simply software
providers.
Parlay owns and licenses its integrated technology systems. The Company earns installation and
implementation fees by providing and integrating its software; service fees generated from
customization and support services; monthly managed service fees generated from network
partner access to the Parlay Games platforms and royalty fees which are calculated as an annual
fee or as a continuing percentage of the licensee's gaming revenue (the "Royalty"). License
agreements vary in length from one to three years. The Royalty will vary depending on the
technology licensed, the performance of the licensee, the licensee's growth and the scope of the
technology and support services licensed. After the initial installation or implementation of the
software, the Company also provides technical support and professional services to licensees on
terms agreed to by the parties.
Following the Divestiture transaction, the number of licensee relationships fell to 21 at
December 31, 2008 and is 22 at December 31, 2009. Most of Parlay’s software license
agreements and intellectual property are owned by PEL. In addition to the license owned by
PGL in Alderney, Parlay also operates pursuant to a Class IV gaming license issued by the Malta
Lotteries and Gaming Authority and it has a Remote Operating License for the supply of
software by the U.K. Gambling Commission.
Business Plan
Parlay’s business plan is to focus on the continued development and marketing of our Online
Games and the delivery of managed services to customers who do not want to manage their
gaming operations. With the formulation stage of Parlay Games now complete, it is a matter of
adding network partners, liquidity and critical mass to the network in order to generate a return
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on investment. To this end, the Company has now completed a number of managed services
agreements and expects to launch a number of new customer relationships in 2010.
Products
Our software and e-commerce products are licensed for use by our customers to create virtual
bingo halls. Our software is browser-based and it transfers the “front-end” information (i.e.,
bingo cards, slot wheels, gaming cards, numbers, etc.) between players and either our customer’s
remote servers or, in the case of Parlay Games, our servers located in Alderney. The software
package uses player computers to generate graphics for the Internet bingo hall and/or games.
Through the use of a random number generator, the gaming servers perform all of the bingo hall
or dealer functions which fill the cards, slots, etc. located on the player’s computer.
As part of our commitment to safe and responsible gaming, our gaming solution provides
personal options and security features including deposit and bet limits, temporary and permanent
account locks, personal identification verification, and online tracking of a player’s gaming
activity and financial transactions. We are also able to restrict registration and game play from
residents who are located in prohibited jurisdictions.
Our gaming solution is complemented by e-cash systems and support. We provide Internet-based
electronic commerce support and technology to our licensees and their respective players and
maintain electronic commerce accounts.
For network partners who are part of Parlay Games, we report and remit to them the net gaming
revenues less certain costs and charges (as set out in each managed services agreement). For our
customers to which we have deployed technology, they have control over the registration,
verification and banking systems and support to enable an integrated single player account for all
their online offerings. In such cases, these customers either report and remit licensing fees to us
or alternatively we report and invoice licensing costs to them.
As part of our Parlay Games solution, we also provide 7/24, multi-language customer support
and chat moderation in the languages and currencies supported by our software and customers
for the convenience of a global player base. Our customer support is available to help players
with technical questions or assist with the gaming software and e-cash accounts. Our chat
moderation services are available to help players interact in our various bingo communities.
Using our e-commerce software, players can use a wide range of payment options, including
credit and debit card and various electronic wallets.
Our product suite includes the following:
Online Bingo
Parlay’s Online Bingo is available in 75, 80 and 90-number formats. All formats feature
graphics and a host of features that a player would find in a land-based bingo hall.
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Online Casino
Parlay’s Online Casino features table games including Blackjack, Craps and Roulette as well a
variant of Slots and Video Poker games. Parlay’s Online Casino features rich graphics and
sound, providing the user with a true to life land-based casino experience.
Soft Games
Parlay’s Soft Games include Lotto, Keno as well as a collection of Pull Tab fixed-odds
games. The Lotto system also includes a 6/49 style lottery game supporting a number of
scheduling and format options.
House Edge™
Parlay’s House Edge™ management system offers comprehensive game management and
reporting features, allowing operators to manage their business in real-time to maximize
profitability.
BingoBets™
BingoBets™ is a bingo overlay game that allows players to make fixed-odds bets on the results
of upcoming bingo games. BingoBets™ is embedded in the Parlay bingo interface allowing
players to view the progress of both their purchased bingo cards and BingoBets™ at the same
time.
Technology
All of the Company’s end user game interfaces are built with FLASH for most of the current
web browsers and desktop systems including Microsoft Windows™, Apple Macintosh™ and the
Linux/Unix systems. Parlay packages its Online Games into a downloadable format to allow for
local installation on end user desktops.
Parlay's game engine technologies and systems management applications such as House Edge™
are built with the industry standard Sun J2EE framework. Parlay has been an active member of
the JAVA development community since 1996 and its backend technologies are 100% J2EE
compliant. Parlay’s backend software systems are compatible with most of today’s popular
server hardware platforms and operating systems including Microsoft Windows™, Sun Solaris
and Linux/Unix.
Intellectual Property
The Company seeks patent protection for gaming innovations where proprietary rights will
improve our competitive position. We hold a series of patents including the following:
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Parlay was issued a United States patent (no. 6,585,590) protecting the method used to provide
game cards for purchase by game participants when at least one of the game cards is a winning
card. The advantage of this method is the ability to determine the correct game winner even in
the event that a network connection is lost during the game.
Parlay was issued a Canadian patent (no. 2,340,152) also protecting the method used to provide
game cards for purchase by game participants when at least one of the game cards is a winning
card. The advantage of this method is the ability to determine the correct game winner even in
the event that a network connection is lost during the game.
The Canadian and US patent claims, as described above, would be infringed if a third party
implements a system that has all of the elements of either the system or the method. This may be
true even if the third party includes additional elements to their system or method. However,
before a decision could be made with regard to infringement, a detailed analysis of the third
party’s technology would have to be made in comparison to the claims.
Parlay has applied for a United States patent (application no. 60/885,965) protecting systems and
methods used for playing Bingo overlay games on a data processing system, comprising:
providing at least one Bingo overlay game configured to be playable on top of an underlying
Bingo game; and linking the outcome of at least one Bingo overlay game to numbers called in
the underlying Bingo game. On January 28, 2008, Parlay also filed a PCT international Patent
Application based on the United States provisional patent application no. 60/885,965. A serial
number has not yet been awarded.
Parlay is exploring additional intellectual property which will add to the rights we presently
enjoy. It will be the Company’s intention to enforce the above patent rights.
Trademarks
Parlay has a number of Canadian and United States trademarks that are set out in the table below.
Trademark
WHERE THE WORLD PLAYS BINGO
Canada
United States
ARROW & GLOBE Design ("e")
Canada
United States
HOUSE EDGE
Canada
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Number
Registration Date
TMA 572,407
2,537,308
December 17, 2002
February 5, 2002
TMA 577,569
2,813,397
March 19, 2003
February 10, 2004
TMA 618,069
August 30, 2004
PARLAY ENTERTAINMENT (& Design) ("P"
Version)
Canada
PARLAY ENTERTAINMENT (& Design) (Button
Version)
Canada
AFFILIATE CENTRE
Canada
TMA 615,078
July 19, 2004
TMA 629,169
December 31, 2004
TMA 654,247
December 2, 2005
TMA 659,452
February 21, 2006
E2E
Canada
Competition
We compete with a number of public and private companies, who provide electronic commerce
and/or Internet gaming software and/or managed solutions. Given the stage of development of
the industry and the number of private organizations operating in the industry, information about
the nature of our competitors, their operations and their resources is difficult to compile. In
addition to current known competitors, traditional land-based gaming operators and other
entities, many of which have significant financial resources and name-brand recognition, may
provide Internet gaming services in the future, and thus become our competitors. Increased
competition from current and future competitors has and could continue to result in the reduction
of our margins, or could result in the loss of our market share.
Licensees of our software and managed solutions compete with existing and more established
recreational services and products, in addition to other forms of entertainment. Our success will
depend, in part, upon our ability to enhance our products and services, expand our system
infrastructure and resiliency, keep pace with technological developments, respond to evolving
customer requirements and achieve continued market acceptance.
The global nature of the Internet makes most Internet markets, including the online gaming
industry, relatively accessible to a wide number of entities and individuals. The Company
believes that the principal competitive factors in our industry that create certain barriers to entry
include reputation, technology, financial stability and resources, proven track record of
successful operations, critical mass, regulatory compliance, independent oversight and
transparency of business practices. While these barriers will limit those able to enter or compete
effectively in the market, it is likely that new competitors will be established in the future, in
addition to known current competitors.
Market Position
There are a variety of factors which will influence an Internet gaming software provider’s ability
to acquire and/or maintain market share. Some of these factors include the significant capital
costs relating to software development, credit concentration, e-commerce risk, government
regulation, lead time relating to software development and scarcity of qualified software
programmers. These factors must be overcome to establish and maintain a successful position.
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We cannot guarantee that we will be able to overcome these factors. See also, "Risk Factors The Company Faces Significant Increased Competition".
Costs of Software Development
The costs of developing new software products and enhancing existing software products can be
significant. The Company incurred approximately $1,500,000 of research and software
development costs during the year ended December 31, 2009 (approximately $2,100,000 for the
year ended December 31, 2008). The Company will have to at least maintain, and may be required
to increase, such expenditures in 2010 and future years to maintain the competitiveness of its
software products in the marketplace.
Credit Concentration
At December 31, 2009, the Company had five customers which represented in excess of 10% of
net trade accounts receivable of Parlay as at that date or which represented in excess of 10% of
revenue of Parlay for the fiscal year ended on that date. See also "Risk Factors – Parlay’s
Licensees May Withhold Payment Or Become Insolvent Without Legal Recourse".
e-Commerce Risk
The Company’s customers transact with e-commerce service providers. Certain of these ecommerce providers have ceased accepting deposits from U.S. residents as a direct result of the
UIGEA. The Company has limited, and in some cases no, information on the transactions
between its customers and their e-commerce service providers. Further the Company has no
direct access to the information of any e-commerce service providers and has no privity of
contract to obtain such information. Because the Company’s accounts receivable may depend on
e–commerce service providers honouring their obligations to the Company’s customers, should
there be delays in these e-commerce service providers remitting funds to the Company’s
customers, the Company itself will experience delays in cash collection. In addition, in 2009 the
Company itself commenced transacting with e-commerce providers. While the Company does
have access to certain information of these e-commerce service providers and has privity of
contract to obtain such information the Company depends on these e–commerce service
providers honoring their obligations to the Company. While management does not anticipate
non-performance by these e-commerce service providers, there is limited information on which
to base this assessment.
As noted, in 2009 the Company commenced transacting directly with a number of ecommerce
providers. At December 31, 2009, approximately 14% (December 31, 2008 – Nil) of the
Company’s net trade accounts receivable related to amounts owed by three ecommerce
providers, including amounts retained by the ecommerce providers as reserves.
Government Regulation
See discussion under the heading "Government Regulation" below and above.
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Software Development Lead Time
The development of new software products, and enhancements to existing software products,
including the appropriate quality control testing thereof, can be a time consuming process. The
ability of the Company to develop and introduce new software products, and enhancements to
existing software products, in conformity with its product development timetable, and in advance
of its competitors, will have an influence on both the present marketplace acceptance of Parlay
software and on the future market share that Parlay software is able to achieve.
Scarcity of Qualified Software Developers
The development of software products requires the application of specific software development
skills. To maintain, or accelerate, the development lead times for specific software development
projects, the Company may have to either recruit new staff, or engage short-term consultants, to
assist with the respective software development projects. If the Company is unable to either hire
new staff, or engage short–term consultants, the marketplace positioning of the Company may be
adversely impacted.
Cash Deposits
The Company’s cash and security deposit is on deposit with six financial institutions. Only
certain of the Company’s cash and security deposit amounts would be covered by deposit
insurance and the Company’s cash and security deposit amounts are substantially in excess of the
amounts that would be covered by deposit insurance should such insurance coverage become
required. Although cash and security amounts exceed insured deposit amounts, management
does not anticipate non-performance by the financial institutions.
Foreign Operations
As was noted as an expectation in 2008, in 2009 essentially of the Company’s revenue was derived
from licensing and support fees in countries outside North America. The Company and its
licensees are subject to local laws and regulations in those jurisdictions in which we operate.
There are burdens associated with operating in these jurisdictions including complying with
multiple and sometimes conflicting regulatory requirements, foreign currency risks, potential
restrictions on gaming activities and potentially adverse tax risks. See also "Government
Regulation" below.
Parlay’s Connection to Online Gaming Industry
Parlay has various connections with the online gaming industry. In Canada, Parlay develops
software under contract with PEL. PEL, PML and PGL in turn, license online gaming systems
to their customers. These customers are generally licensed to operate interactive bingo halls and
casinos in the country where their gaming equipment is physically located or in the case of PGL,
they have received approval from the AGCC that they are an acceptable network partner to PGL.
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Regulatory Jurisdiction of Parlay’s Licensees
As we have noted previously in this document, significant debate exists whether the laws of any
country other than the country where the computer gaming servers are physically located have
jurisdiction over the operations of Parlay’s licensees. In addition, a significant debate exists
whether the laws of any country other than the country where the computer gaming servers are
physically located have jurisdiction over the operations of Parlay’s affiliate, PML, which
performs services for some of Parlay’s licensees.
Many of Parlay’s licensees hold a gaming license in the country of their operation. PML has a
Class IV license issued by the Malta Lotteries and Gaming Authority and a Remote Gambling
Software Type F License granted by the Gambling Commission of the U.K. PGL holds a Full
eGambling License granted by the AGCC. Each of Parlay’s licensees each has the responsibility
to determine from which countries they will accept gaming transactions and ensure that their
own gaming license is maintained. All of Parlay’s licensees’ gaming transactions are accepted on
servers located outside of North America and are governed by the conditions of those countries
and the respective gaming licenses.
There have been a number of legal developments associated with gaming, and online gaming, in
the U.K., Continental Europe and the U.S. These developments are both positive and negative.
In this regard a brief summary of the regulatory situation in the U.K., Continental Europe, and
the U.S. is as follows:
U.K.
In September 2007, the U.K. Gambling Act came into force, which regulated online gaming for
the first time in that jurisdiction. Most of the underlying legislative initiatives for businesses
established in the U.K., or marketing into the U.K., have now been enacted. This
notwithstanding, there is no assurance that the U.K. regulatory regime as interpreted by the
Gambling Commission, the Gambling Act’s independent regulator, will provide a commerciallyviable market and may create restrictions that would have a material adverse effect on Parlay’s
customers, business, revenues, operating results and/or financial condition. Recently, the
Department of Culture Media and Sport (the “DCMS”) (the government body with responsibility
for overseeing gambling), has recently announced that it may reconsider one of the main tenets
of the Gambling Act, namely that if an online gaming operator was regulated either in Europe or
in a jurisdiction approved by the DCMS (the so called “white listed” jurisdictions) such an
operator could fully target the U.K. gambling market. It seems likely that the DCMS will
recommend (in a report soon to be published) that it will require entities not licensed in the U.K.
to acquire some form of additional accreditation to access the U.K. market and/or pay taxes in
the U.K.
- 16 -
Continental Europe
France
France has decided to license the Internet gambling sector in 2010 but currently only in relation
to poker games and sportsbook. It is, therefore, anticipated that the previously aggressive
enforcement stance adopted by the French authorities is likely to resume when this regime is in
force against those operators that fail to obtain any local license. Moreover, the licenses look
likely to be subject to undesirable commercial terms, such as limits on maximum payouts and
high levels of tax. Moreover, all poker play can only be amongst French customers, which will
severely impede liquidity.
Germany
Online gambling was expressly prohibited in Germany by the State Gambling Treaty of 2008,
under which an operator is liable to civil or administrative sanctions. Article 284 of the German
Criminal Code, which applies criminal sanctions to operators who provide online gambling
services into Germany without a form of authorization, has been the subject of legal debate over
the purported breadth of its application. Conflicting domestic court decisions on the legality of
domestic law relating to online gambling (in light of the uncertainty of the application of Article
284 of the Criminal Code to online gambling businesses licensed outside of Germany, in
particular by other E.U. member states, and the legality of the State Gambling Treaty under E.U.
law) has led to uncoordinated enforcement action. Moreover, the State Gambling Treaty expires
on December 31, 2011, requiring Germany to address the issue of online gambling prior to this
date. It may elect to adopt a similar regime to that implemented in France.
Italy
Recent willingness by the Italian government to regulate certain forms of Internet gaming could
be perceived as indicative of a liberalization of the Internet gaming industry as a whole in that
country. However, at present, the form of regulation put forward has failed to create attractive
market conditions for many operators. As such, notwithstanding the fact that this market may
appear to be liberalizing, in practice, Italy has not liberalized in a manner, or to a degree, that is
helpful to the Company or its licensees. The Company and its licensees remain at risk that Italy
may take aggressive action against parties whose operations at are not licensed pursuant to the
regulatory regimes established by this country and, furthermore, the fact that some Internet
gaming activity is permitted under license may be sufficient for Italy to resist any residual
criticisms or enforcement initiatives by the E.C.
Spain
Madrid’s regional government has recently implemented new legislation to regulate Internet
gaming but it only permits services to be supplied by the licensed entity to Madrid residents.
Therefore, obtaining a license may be of little commercial value to any operator. Other regions
may follow suit.
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Holland
The Dutch government has consistently taken steps to support and protect its state-sponsored
casino operator’s (Holland Casino) monopoly, including taking legal action against Internet
gaming operators. In addition, an announcement in 2009 by the Dutch Minister of Justice to the
effect that payment support by Dutch banks of online gaming was unlawful (and precluded by
existing law) caused a number of operators to block from the territory, and this cautious
approach has been further exacerbated by the negative (recently published) opinion of Advocate
General Bot in the case referred to the ECJ by Betfair and Ladbrokes which sought in effect to
challenge the Dutch monopoly (the court normally follows the Advocate General’s opinion). In
the event that the Dutch government seeks to take further steps to protect the online business of
Holland Casino by discouraging other operators from operating in the Dutch marketplace, either
through changes in legislation or enforcement measures, the Company’s licensees could be
adversely impacted.
Scandinavia
Governments in most Scandinavian countries have attempted to discourage their citizens from
gambling with online operators by taxing their citizens’ winnings. Generally speaking, winnings
realized through a state sponsored operator are not taxable, but winnings from other sources can
be subject to inconsistent application of taxation law in relation to domestic and non-domestic
products in the E.U. Until such time as the tax authorities in the various countries make an
official pronouncement on the manner in which these tax laws will be applied, it is unclear as to
what impact these tax policies will have on the business of the Company’s licensees. In Norway,
the government has specifically banned payment support of online gambling which came into
force in 2010. The ban, means only payment support of state owned gambling services will
remain legal. In Denmark, the state monopoly on online gambling is being reconsidered by
Danish government in light of EC criticism.
U.S.
As a result of the enactment of UIGEA in October 2006 and the subsequent Divestiture
transaction, the Company has prohibited its licensees from taking any wagers from U.S.
residents. The UIGEA sought to clarify the illegality of processing or transferring any funds
connected with unlawful Internet gaming, although some U.S. enforcement agencies claimed that
previous existing legislation similarly outlawed these activities. Given that the Company had
previously derived licensing revenue on behalf of some licensees who took wagers from the
U.S., there is no guarantee that the U.S. Department of Justice will not seek to prosecute the
Company, its officers or directors for alleged historic transgressions or similarly prosecute its
licensees or their directors or shareholders. Such proceedings could result in criminal penalties,
substantial fines, damages and sequestration of assets. They also could damage the reputation of
the Company, divert the attention of the Company’s key executives and have a material adverse
effect on the business,
The uncertainty surrounding regulation of Internet gaming could have a material adverse effect
on Parlay’s business, revenues, operating results and financial condition. Several countries and
governmental authorities, most notably certain law enforcement agencies in the United States,
- 18 -
believe that the laws of their country restrict, and in some instances prohibit, interactive gaming
operators from doing business with residents of their countries and, in some instances, prohibit or
restrict residents of their respective countries from doing business with interactive gaming
operators located in a foreign country.
Distribution Methods
The Company currently markets its technology and services through a sales and marketing
strategy whereby it identifies key potential customers that meet its licensee profile, and then
contacts such prospects directly. The Company also actively assists licensees in their sales and
marketing efforts to add quality network partners. The Company also attends industry trade
shows around the world to generate new prospects and responds to referrals from existing
customers and other industry participants.
Parlay’s focus is to attract licensees or network partners who are trusted brand names, and who
have an established base of potential gamers to cross-market new products and who have the
financial resources and commitment to market their site in a global and competitive environment.
Parlay does not limit its sales efforts to a particular jurisdiction; however, the Company focuses
on key markets, which include the U.K., Europe and Latin America.
Revenue
Parlay’s revenue is primarily of a recurring nature in that PEL and PGL’s customers pay ongoing
fees for the managed solution and licensing and support of our software, calculated as a
percentage of each licensee’s level of sales or wagering activity. Additional revenues are derived
from other sources including the provision of software customization and support services. In
fiscal 2009, revenue was $3.4 million (2008: $8.5 million), with 76% (2008: 55%) of this
amount represented by recurring software licensing fees. Other revenue sources accounted for
24% of revenue in 2009 (2008: 45%).
Employees and Consultants
As at December 31, 2009, Parlay had 26 employees. PML has one part-time employee. PGL
has 19 full time consultants. None of the employees of the Company or any of its subsidiaries
are covered by a collective bargaining agreement.
RISK FACTORS
The following discussion pertains to the outlook and conditions currently known to management
which could have a material impact on the financial condition and results of the operations of the
Company. This discussion, by its nature, is not all-inclusive. It is not a guarantee that other
factors will or will not affect the Company in the future. This discussion should be read in
conjunction with material contained in other sections of this Annual Information Form.
The Company is subject to many risks and uncertainties in the conduct of its business which can
be categorized as either government regulation or other risk factors. Government regulation
matters are discussed under the heading "Government Regulation". Other risk factors are
- 19 -
discussed further below. In almost all cases, these risks and uncertainties are factors which are
completely beyond the control of the Company. The risk factors described below, the
"Government Regulation" matters discussed above and other matters discussed elsewhere in this
document generally, could have a material adverse effect on Parlay’s business, financial
condition and results of operation. The following highlights these risks and uncertainties.
See disclosure under the heading "Government Regulation" above.
Present Economic Conditions
At present a period of significant global economic volatility, generally referred to as the Credit
Crunch, is being experienced. The Credit Crunch is visible in the recent levels of global
securities and credit markets volatility as the worldwide economy has trended towards recession
very rapidly. While Parlay’s management did not believe that the Credit Crunch had any direct
impact on revenue generated from licensees through December 31, 2008 management does
believe that the Credit Crunch has adversely impacted on revenue for the year ended December
31, 2009. The Company has previously noted, most recently in its Annual Information Form
dated April 1, 2009, that the gaming industry is a volatile industry, which is sensitive to
economic conditions. When economic conditions are unfavourable, gaming industry revenues
decline. Any significant decline in general corporate conditions or the economy that affect
consumer spending could have a material adverse affect on the Company's business, financial
condition and results of operations. Management believes that there has been a reduction in
wagering behaviour by the Company’s licensees customers as a result of the Credit Crunch.
These customers are predominantly resident in the U.K. and continental Europe. In addition,
Parlay’s licensees have improved the game configurations to make the wagering experience
more attractive to wagerers. In addition, as previously noted, a worldwide, large scale recession
may impact Parlay’s business in many ways. The following list of consequences includes
matters that Parlay has long identified as risks to its business but the Credit Crunch may
exacerbate these risks. These consequences include, but may not be limited to: stock price and
volume volatility, a potential lack of availability for future funding of the Company if required, a
lack of available credit for licensees’ players to continue to gamble online, increased risk around
collections from licensees, an increased likelihood of licensees defaulting on their contractual
obligations and the potential for fewer players being willing to gamble online or to gamble at
past levels of activity. It is not feasible to predict all of the various possible ways in which the
Credit Crunch could adversely impact Parlay’s business or attempt to quantify any impact.
However, the Credit Crunch could have a material adverse effect on the Company’s revenue,
results of operations and financial condition. Parlay’s strategy to respond to the Credit Crunch
on its revenues is to continue to focus on the development, marketing, licensing and support of
Internet gaming technologies into regulated jurisdictions. From the cost of conducting business
perspective, the Credit Crunch has resulted in unprecedented recent levels of volatility in foreign
currency exchange markets, especially between the major currencies in which the Company
conducts its business. Parlay’s strategy to respond to the increased volatility in foreign currency
exchange markets is to place greater emphasis on treasury matters. In addition, Parlay is
continuing to focus on cost control is response to these challenging economic times.
- 20 -
The Company Could Require Financing Which May Not Be Available
In the event that the Company desires to expand quickly, it would be required to use a substantial
amount of its assets to fund operations. There can be no assurance that the Company possesses
sufficient assets for these purposes and, therefore, as is true for other companies contemplating
significant growth, Parlay may require debt or equity financing. Such additional financing may
not be available, may not be available on terms acceptable to the Company and, if available, may
result in substantial dilution of the equity interests of existing shareholders.
If additional financing is not available, the Company would reduce its expansion plans to the
point where it has, and will likely continue to have, sufficient cash flow and expense flexibility
to fund the expanded operations.
The Company Faces Significant Increased Competition
The Internet gaming industry involves rapid technological change and is characterized by intense
and substantial competition. Many of the companies, both domestic and foreign, with which the
Company competes are well established, substantially larger and have substantially greater
resources. As new competitors emerge, the Company will have to compete with other companies
that may have greater market recognition, greater resources and/or broader distribution
capabilities. Further the Company’s focus on the general European marketplace and, in
particular, on the U.K. will be faced with increased competition, as the Company believes that
other software vendors may also adopt this strategy. Increased competition by existing and
future competitors could materially and adversely affect the Company's business, financial
condition and results of operations.
Failure to Manage Growth Successfully
The scope of the Company’s overall business has fluctuated over the last five years. These
fluctuations place a strain on managerial and financial resources. Growth in the scope of our
technical infrastructure, the increased geographical area of our operations and responding to the
requirements of regulated jurisdictions has resulted in increased responsibilities for existing and
new management personnel. Our ability to successfully manage these fluctuations depends, in
large part, upon our ability to: retain and attract qualified management, retain and attract skilled
technical personnel to continue to develop reliable solutions that respond to the evolving needs
of our customers and retain and attract sales and marketing personnel.
Operating in Regulated Jurisdictions
Regulated jurisdictions place certain minimum operating and financial requirements on the
Company. Failure to meet these requirements could have cascading consequences to the
Company ranging from censure to financial penalties and, ultimately, the possibility that the
regulated jurisdiction could revoke the license. The Company is dependent on the support of the
regulated jurisdiction to operate.
- 21 -
Industry Consolidation
The on-line gaming industry has experienced consolidation and more consolidation may be
anticipated. To the extent that such consolidation reduces the number of potential customers for
the Company’s products, it may have an adverse impact on the Company’s ability to grow. In
addition, should consolidation involve an existing customer of the Company and Parlay not be
considered an approved software vendor for the new entity, there is a risk that Parlay could lose
customers. Such industry consolidation could have a material adverse effect on the Company's
business, revenues, operating results and financial condition.
Increasing Sales Cycles
As a consequence of increase competition, the maturation of parties entering the vertical and
issues around e-commerce and other funding aspects of conducting an on-line gaming business,
the Company is noting an increase in the length of the sales process defined as the time period
between the expression of potential licensee interest to commercial launch of the new site. Such
timelines can be between six to 12 months. Any continuing increase in the timelines around new
licensee arrangements could continue to restrict the Company's ability to forecast revenue and
could have a material adverse effect on the Company's business, revenues, operating results and
financial condition.
The Company Has A Limited Operating History, Therefore There Is A Degree Of
Uncertainty Whether Its Business Plans Will Be Successful
Parlay has only a limited history of operations. To the extent that the Company implements its
business plan, its business will be subject to all of the problems, expenses, delays and risks
inherent in a young business enterprise, including, without limitation, limited capital, delays in
program development, possible cost overruns, uncertain market acceptance and a limited
operating history. Notwithstanding the above, the Company notes the recent market acceptance
of on-line bingo and accordingly the success of its new product offerings, consistent with its
business plan, particularly in the U.K. and European marketplaces.
The Gaming Industry Is A Volatile Industry
The gaming industry is a volatile industry, which is sensitive to economic conditions. When
economic conditions are prosperous, gaming industry revenues increase. Conversely, when
economic conditions are unfavourable, gaming industry revenues decline. Any significant
decline in general corporate conditions or the economy that affect consumer spending could have
a material adverse affect on the Company's business, financial condition and results of
operations.
The Company Depends On Key Personnel
The loss of key personnel could have a material adverse effect on the business of the Company,
including its financial condition and results of operations.
In addition, the Company's future operating results depend in part upon its ability to attract and
retain other qualified key personnel for its operations. Competition for such personnel is intense,
- 22 -
and there can be no assurance that the Company will be successful in attracting these personnel.
The failure to attract or retain such persons could materially adversely affect Parlay's business,
financial condition and results of operations.
Parlay's Software and/or Computer Network Infrastructure May Fail
The performance of the Company's software is critical to its reputation and to achieving market
acceptance. Any system failure, including network, software or hardware failure, that causes
interruption or an increase in response time of its services, will reduce the attractiveness of the
Company's services to its clients. An increase in the volume of usage of online services could
also strain the capacity of the software or the hardware employed, which could lead to system
failures, thereby adversely affecting the Company's revenues.
The occurrence of technical failure, whether caused by Parlay's software or not, could result in
interruptions, delays or cessation in service to users, which could have a material adverse affect
on the Company's business, financial condition and results of operations.
Parlay's computer network infrastructure is located at a leased facility in Oakville, Ontario and at
a third party facility in Guernsey. The Company's systems and operations are vulnerable to
damage or interruption from fire, flood, power loss, telecommunications failure, Internet
breakdowns, break-ins and similar events. While Parlay does have redundant facilities through a
secondary system employed by its telecommunication provider in Canada, in the event of an
emergency, these systems could also fail. Services based on sophisticated software and
computer systems often encounter development delays and the underlying software may contain
undetected errors that could cause system failures when introduced.
Parlay’s licensees are also dependent upon search engines, web browsers, Internet service
providers and other online service providers to provide Internet users access to their websites.
Players may experience difficulties accessing or using licensee websites due to system failures or
delays unrelated to the Company's systems. It is unlikely that any of Parlay's licensees carry
business interruption insurance to compensate them, or Parlay, for lost royalties in the event of
these types of losses.
Parlay’s Future Growth Depends On Continued Growth In The Use Of The Internet
The Company's future success is substantially dependent upon continued growth in the use of the
Internet and, as it relates to the Company's business, in the acceptance and volume of
commercial transactions on the Internet. There can be no assurance that the number of Internet
users will continue to grow, or that commerce over the Internet will become more widespread.
The Internet may not prove to be a viable commercial marketplace for a number of reasons,
including: lack of acceptable security technologies; lack of access and ease of use; congestion of
traffic; inconsistent quality of service and lack of availability of cost-effective, high-speed
service; potentially inadequate development of the necessary infrastructure; excessive
governmental regulation; uncertainty regarding intellectual property ownership; and timely
development and commercialization of performance improvements, including high-speed
modems.
- 23 -
Parlay's success also depends upon, among other things, the continued development and
maintenance of a viable Internet infrastructure to support the continued growth in the use of the
Internet. The maintenance and improvement of this infrastructure will require timely
development of products, such as high-speed modems and communications equipment, to
continue to provide reliable Internet access and improved content. The current Internet
infrastructure may not be able to support an increased number of users or the increased
bandwidth requirements of users and, as such, the performance or reliability of the Internet may
be adversely affected.
Furthermore, the Internet has experienced certain outages and delays as a result of damage to
portions of its infrastructure. Similar outages and delays in the future could adversely affect the
level of traffic on licensee websites. The effectiveness of the Internet may decline due to delays
in the development or adoption of new standards and next-generation Internet protocols designed
to support increased levels of activity. There can be no assurance that the infrastructure and
products or services necessary to ensure the continued expansion of the Internet will be
developed, or that the Internet will become a viable commercial medium. If the necessary
infrastructure, standards, protocols, products, services or facilities are not developed, or if the
Internet does not become a viable commercial medium, the Company's results of operations and
financial condition could be materially and adversely affected.
Even if such infrastructure, standards or protocols or complementary products, services or
facilities are developed, there can be no assurance that Parlay will not be required to incur
substantial expenditures in order to adapt its services to changing or emerging technologies,
which could have a material adverse effect on the Company's business, results of operations and
financial condition. Moreover, it is anticipated that additional domain levels may be created
(such as ".zip") and, to the extent additional domain levels are added, their existence may greatly
increase the level of competition for the Company's licensees.
The Market For Internet Services Is In A State Of Rapid Technological Change And The
Company May Not Be Able To Keep Up
The market for Internet services is characterized by rapid technological developments, frequent
new product introductions and evolving industry standards. The emerging character of these
products and services and their rapid evolution will require the Company to effectively use
leading technologies, continue to develop its technological expertise, enhance its current services
and continue to improve the performance, features and reliability of its software.
Changes in network infrastructure, transmission and content delivery methods, underlying
software platforms and the emergence of new broadband technologies, such as DSL and cable
modems, could dramatically change the structure and competitive dynamic of the market. In
particular, technological developments or strategic partnerships that accelerate the adoption of
broadband access technologies may require the Company to expend resources to address these
developments.
There can be no assurance that Parlay will be successful in responding quickly, cost effectively
and sufficiently to these or other such developments. In addition, the widespread adoption of
new Internet technologies or standards could require substantial expenditures to modify or adapt
- 24 -
the Company's websites. A failure to respond rapidly to technological developments could have
a material adverse effect on the Company's business, results of operations and financial
condition.
Parlay Must Continue To Improve And Expand Its Skills And Personnel, But May Not Be
Able To Do So
In order to expand its business operations, the Company must continue to improve and expand
the expertise of its personnel and must attract, train and manage qualified senior executives and
employees to oversee and manage its contemplated expanded operations.
There can be no assurance that Parlay will be able to manage effectively the expansion of its
operations or that its current personnel, systems, procedures and controls will be adequate to
support operations. Any failure of management to manage effectively the Company's growth
could have a material adverse effect on Parlay's business, results of operations and financial
condition.
Although management intends to ensure that its internal controls remain adequate to meet the
demands of further growth, there can be no assurance that its systems, controls or personnel will
be sufficient to meet these demands. Inadequacies in these areas could have a material adverse
effect on the Company's business, financial condition and results of operations.
The Company Has Limited Intellectual Property Protection And Competitors May Be Able
To Appropriate Its Technology
Parlay regards its trade secrets and similar intellectual property as critical to its success. In that
context, the Company will rely on a combination of copyright and trademark laws, trade secret
protection, confidentiality and non-disclosure agreements and contractual provisions.
There is no guarantee that these efforts will be adequate that the Company will be able to secure
its patent, trademark or other registrations for all of its marks in Canada or other countries or that
third parties will not infringe upon or misappropriate its copyrights, trademarks, service marks
and similar proprietary rights.
In addition, effective copyright and trademark protection may be unenforceable or limited in
certain countries and the global nature of the Internet makes it impossible to control the ultimate
jurisdiction of the Company's licensee websites. Since trademark and copyright protections are
not "self-enforcing" future litigation may be necessary to enforce and protect Parlay's secrets,
copyrights and other intellectual property rights.
Parlay may also be subject to litigation to defend against claims of infringement of the rights of
others or to determine the scope and validity of the intellectual property rights of others. Such
litigation could result in substantial costs. An adverse outcome could require the Company to
cease using such intellectual property.
Further, licensees may appropriate or reverse engineer Parlay's Internet technologies and offer
them for sale as a competitor. Any litigation regarding proprietary rights could be costly,
unavailable or unenforceable, could divert management's attention and could result in the loss of
- 25 -
certain of the Company's proprietary rights and/or competitive advantage. As a violation of
Parlay’s proprietary rights could prevent the Company from selling its services, it may have a
material adverse effect on Parlay’s business, results of operations and financial condition.
Parlay's System Faces Online Security Risks
Parlay's networks and software technologies may be vulnerable to unauthorized access, computer
viruses and other disruptive problems. A party that is able to circumvent security measures
could misappropriate proprietary information and, perhaps at least as critically, cause
interruptions in licensee operations or the operations of the Company.
Other software and Internet companies have in the past experienced, or may in the future
experience, interruptions in service as a result of the accidental or intentional actions of Internet
users, current and former employees or others. Parlay may be required to expend significant
capital or other resources to protect against the threat of security breaches or to alleviate
problems caused by such breaches.
There can be no assurance that any measures implemented will not be circumvented in the
future.
Eliminating computer viruses and alleviating other security problems may require interruptions,
delays or cessation of service to clients accessing the licensee websites, which could have a
material adverse effect on Company business, results of operations and financial condition.
Such security issues are Denial of Service Attacks ("DOS") and Trojan Horse attacks ("Trojan").
Parlay licensees have been subject to both types of attack in the past and the consequence has
been an interruption of activity, which decreases Company revenues, and payments by licensees
to the perpetrators which can have an adverse cash flow consequence on both Parlay’s licensees
and Parlay itself. The risk of DOS and Trojan attacks are licensee security concerns rather than
Parlay security concerns.
The Company May Be Held Liable For The Content Of Websites
As a distributor of Internet enabling software, Parlay faces potential liability for negligence,
copyright, patent, trademark infringement, defamation, disparagement and other claims based on
the nature and content of the materials that it transmits. Such claims have been brought, and
sometimes successfully pressed, against Internet content distributors.
The Company may not have the resources to secure adequate insurance to cover such potential
claims of this type or such insurance if available may not be adequate to indemnify the Company
for all liability that may be imposed. In addition, although Parlay generally requires its content
providers to indemnify the Company for such liability, such indemnification may be inadequate
or unenforceable.
Any imposition of liability that is not covered by insurance, is in excess of insurance coverage or
is not covered by an indemnification by a content provider could have a material adverse effect
on the Company's business, results of operations and financial condition.
- 26 -
The Company May Be Subject To Product Liability Claims And It Lacks Product Liability
Insurance
Parlay faces substantial risk of exposure to product liability claims in the event that the products
it develops and licenses contain errors, "bugs" or defects. Parlay does not presently have product
liability insurance and there can be no assurance that insurance coverage will be available in the
future on commercially reasonable terms, or at all.
Further, there can be no assurance that such insurance, if obtained, would be adequate to cover
potential product liability claims, or that a loss of insurance coverage or the assertion of a
product liability claim or claims would not materially adversely affect the Company's business,
financial condition and results of operations.
Parlay May Be Subject To Regulation Of Internet Gaming
Parlay and its licensees are subject to applicable laws in the jurisdictions in which they are
located. As companies and consumers involved in Internet gaming are located around the globe,
including the end-users of Parlay's systems, there is uncertainty regarding exactly which
governments have jurisdiction or authority to regulate or legislate with respect to various aspects
of the industry. The uncertainty surrounding the regulation of Internet gaming could have a
material adverse effect on Parlay's business, revenues, operating results and financial condition.
In addition, legislation designed to restrict or prohibit Internet gaming, similar to or different
from legislation introduced in the U.S., may be adopted in the future by other jurisdictions.
Also, existing legislation around the world, including the U.S. and its individual state statutes,
could be construed to prohibit or restrict gaming through the use of the Internet and there is a risk
governmental authorities may view Parlay’s systems or the Company as having violated such
statutes.
There is a risk that criminal and civil proceedings could be initiated in such jurisdictions against
Parlay's licensees or the Company and such proceedings could involve substantial litigation
expense, penalties, fines, diversion of the attention of key executives, injunctions or other
prohibitions being invoked against Parlay's licensees or the Company. Such proceedings could
have a material adverse effect on the Company's business, revenues, operating results and
financial condition.
In addition, as e-commerce develops further, it may generally be the subject of government
regulation, either specifically addressed at on-line gaming or at other activities. Also, present
laws that pre-date or are incompatible with Internet e-commerce may be enforced in a manner
that restricts the e-commerce market. Any such developments could have a material adverse
effect on Parlay's business, revenues, operating results and financial condition.
Parlay's Licensees May Withhold Payment Or Become Insolvent Without Legal Recourse
Parlay's licensees are constituted in jurisdictions where it may not be possible for Parlay to
collect royalty or other income or enforce its license agreements effectively. Because licensees
do not provide a performance bond, it is possible that some of the Company's licensees will
become insolvent or judgment-proof. The uncertainty surrounding the collection of royalty
- 27 -
payments or other amounts owed to the Company could have a material adverse effect on
Parlay's business, revenues, operating results and financial condition.
Parlay Is At Risk Of Currency Fluctuations And Controls
The Company's costs are generally incurred in Canadian dollars while its revenues are generally
received in pounds sterling and euros. Therefore, the Company's operating results may be
affected by relative fluctuations in the exchange rates applicable to the currencies in which it
transacts business. Currency exchange rates are determined by market factors beyond the
Company's control, and may vary substantially during the course of a period. Further, the
Company's ability to repatriate to Canada funds arising in connection with foreign licensees may
be adversely affected by currency and exchange control regulations, money-laundering controls
and other controls imposed by the country in which the Company's software is exploited.
Credit Card Companies May Limit Credit Card Use In Internet Gaming
Licensees’ revenues from other than U.S. residents are generally collected through online credit
card processing. Certain credit card companies, such as MasterCard, and certain credit card
issuing banks in the U.S., have stopped processing transactions from online gaming customers.
Such further action by credit card companies or issuers could have a material adverse effect on
the Company's business, revenues, operating results and financial condition.
General e-Commerce Availability
As noted above, the Act restricts the ability of U.S. financial institutions to participate in the
funding of e-commerce accounts curtailing the ultimate funding of on-line gaming transactions
and, therefore, effectively prohibiting U.S. residents from participating in on-line gaming
activities. If other countries or jurisdictions implement similar measures, which are effective,
this could have a material adverse effect on the Company's business, revenues, operating results
and financial condition. Further, although the e-commerce providers used by the Company’s
licensees are not directly targeted by the Act, should e-commerce providers generally decide to
restrict their scope of business to exclude on-line gaming transactions, this could have a material
adverse effect on the Company's business, revenues, operating results and financial condition.
Parlay May Face Pressure To Retain Licensees As They Diversify Their Supplier Risk
As part of their own risk management strategy, licensees may seek to limit their dependency on
one suppler of software to ensure that should there be a failure of a software supplier, that the
operational needs of the licensee can continue to be met. The use of more than one supplier
would also assist licensees in making informed, competitive, assessments of one supplier
compared to others. In addition, the significant level of recent consolidation in the industry has
lead to prospective or present customers limiting the number of acceptable software providers.
The Company may experience reduced growth opportunities as licensees look to other suppliers
to provide software to run additional sites.
- 28 -
The Company May Be Unable To Maintain Present Commercial Terms With Existing And
New Licensees
On occasion, the Company has been forced to introduce across the board reductions in licensee
royalty rates as result of competitive pressures. Should these competitive pressures continue,
there can be no assurance that the Company will not have to accommodate either licensee
specific or across the board reductions in effective royalty rates. The Company believes that the
competitive pressure is arising from competitors whose pricing model may be unsustainable in
the long run. Parlay faces intense price-based competition for licensing of its products. Price
competition is often intense in the software market, especially for internet gaming software
providers. Many of Parlay’s competitors have reduced the price of their products. Price
competition may continue to increase and become even more significant in the future, resulting
in reduced profit margins.
The Company Has Had Difficulty In Obtaining Sufficient Directors And Officers’
Insurance Coverage
In common with many small-cap companies, the Company has experienced increasing premiums
for Directors’ and Officers’ Insurance Coverage. The Company operated without such insurance
coverage from January 2004 through January 2006. The present coverage in place provides for a
limit on liability to the carrier of $1,000,000 Cdn. The absence of sufficient directors’ and
officers’ insurance coverage may make it more difficult to attract and retain qualified individuals
to act as directors and officers for the Company.
DIVIDENDS
Since incorporation, the Company has not paid any dividends on the Common Shares.
Dividends on the Common Shares will be paid solely at the discretion of the Board of Directors
after taking into account the financial condition of the Company and the economic environment
in which it operates. No dividends are expected to be paid in the foreseeable future.
DESCRIPTION OF SHARE CAPITAL
General Description of Share Capital
Parlay is authorized to issue an unlimited number of Common Shares. As at April 19, 2010,
12,649,265 Common Shares are issued and outstanding as fully paid and non assessable. In
addition, 2,446,353 Common Shares are reserved for options to be granted to directors, officers,
employees and consultants of Parlay. These Common Shares are reserved under the terms of
Parlay’s Stock Option Plan which was approved by the Company’s disinterested shareholders at
the Annual General Meeting held on June 24, 2009. At April 19, 2010, there are 1,225,000
options to purchase Common Shares outstanding.
Characteristics of Common Shares
The holders of Common Shares are entitled to dividends as and when declared by the Board of
Directors; to one vote per share at meetings of shareholders; and, upon liquidation, to receive
- 29 -
such assets of the Company as are distributable to the holders of the Common Shares and also to
the rights, privileges and restrictions normally attached to Common Shares.
MARKET FOR SECURITIES
Price Range and Volume of Trading of Common Shares
The following table sets forth the reported high, low and close sales prices and the average daily
trading volumes for the Common Shares as quoted on the TSX Venture Exchange, in Canadian
dollars, as reported by sources the Company believes to be reliable for the fiscal year ended
December 31, 2009.
Price Range
$
Low
Close
High
2009
January
February
March
April
May
June
July
August
September
October
November
December
Average Trading
Volume
0.55
0.42
0.42
11,000
0.55
0.48
0.50
0.55
0.50
0.50
0.43
0.42
0.33
0.39
0.32
0.25
0.35
0.35
0.36
0.36
0.34
0.34
0.30
0.27
0.31
0.24
0.32
0.40
0.50
0.36
0.50
0.34
0.37
0.32
0.32
0.36
0.28
2,500
8,000
8,000
1,000
3,000
2,000
2,000
8,000
5,000
1,000
11,000
DIRECTORS AND OFFICERS
The following table sets out the names and province/state and country of residence of the
directors and executive officers of the Company as at December 31, 2009, their position and
offices with the Company, their principal occupations for the preceding five years and the
periods during which they have served as directors or officers of the Company. The term of
office of each director will expire at the end of the next annual meeting of the shareholders of
Parlay.
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Name, Province/State and County
of Residence and Position
with Company
Anthony D. De Werth(1), (2)
Chairman and Director
Ontario, Canada
Principal Occupation During the Last
5 Years
Retired since 1995. Prior thereto, Chairman
and CEO of CIBC Wood Gundy Private
Client Investments Inc.
Brian W. Barr(1), (2)
Director
Ontario, Canada
President & CEO Medpro-Direct. Prior
thereto, President and CEO of Brian W. Barr
Holdings Ltd. (1982-Present)
Scott F. White(1)
Chief Executive Officer of the Company.
Chief Executive Officer and Director Prior thereto, partner with Bush Frankel White
Ontario, Canada
Barristers & Solicitors (1992-2003).
Perry N. Malone
President and Chief Technology
Officer and Director
Ontario, Canada
President and Chief Technology Officer of the
Company.
David Callander
Chief Financial Officer
Ontario, Canada
CFO. Prior thereto, partner with Ernst &
Young LLP (1991-2001).
Director Since
December 2002
October 2005
February 1999
February 1999
n/a
Notes:
(1) Member of the Audit Committee.
(2) Member of the Compensation Committee and Compliance Committee.
As of April 19, 2010, the directors and officers of the Company, as a group, owned directly or
indirectly 3,474,998 Common Shares or approximately 28% of the issued and outstanding
Common Shares. The information as to ownership of Common Shares has been furnished by the
respective directors and officers of the Company individually.
LEGAL PROCEEDINGS
Given the nature of the business environment in which we operate, other parties have from time
to time threatened to issue legal proceedings against the Company based on alleged infringement
of intellectual property rights. There can be no assurance that such threats would never
materialize into actual litigation or that the Company would prevail in such litigation. An
adverse determination in litigation proceedings could subject the Company to significant
liabilities to third parties. Although intellectual property disputes are often settled through
licensing or similar arrangements, the costs associated with such arrangements could be of a
significant nature.
CEASE TRADE ORDERS, BANKRUPTCIES, PENALTIES OR SANCTIONS
No director or executive officer of the Company, or a shareholder holding a sufficient number of
securities to materially affect the control of the Company:
- 31 -
(a)
(b)
is, as of the date hereof or has been, within the ten years before the date of this
Annual Information Form, a director or executive officer of any company, that
while that person was acting in that capacity;
(i)
was the subject of a cease trade order or similar order or an order that
denied the relevant company access to any exemption under securities
legislation, for a period of more than 30 consecutive days;
(ii)
was subject to an event that resulted after the director or executive officer
ceased to be a director or executive officer, in the company being the
subject of a cease trade or similar order or an order that denied the relevant
company access to any exemption under securities legislation, for a period
of more than thirty consecutive days; or
(iii)
within a year of that person ceasing to act in that capacity, became
bankrupt, made a proposal under any legislation relating to bankruptcy or
insolvency or was subject to or instituted any proceedings, arrangement or
compromise with creditors or had a receiver, receiver manager or trustee
appointed to hold its assets; or
has, within ten years before the date of this Annual Information Form, become
bankrupt, made a proposal under any legislation relating to bankruptcy or
insolvency, or become subject to or instituted any proceedings, arrangement or
compromise with creditors, or had a receiver, receiver manager or trustee
appointed to hold the assets of the creditor, officer or shareholder.
ESCROWED SECURITIES
Upon listing of the Company’s Common Shares on the TSX Venture Exchange, certain Common
Shares (the "Escrowed Shares") and Common Share options (the "Escrowed Options") held by
the officers and directors of Parlay were required to be held pursuant to the terms and conditions
of a value escrow agreement. The escrow agreements were made effective the 31st day of May,
2005 between Equity Transfer Services Inc., as escrow agent, the Company and the officers and
directors noted in the table below (the "Escrow Agreements"). Under the terms of the Escrow
Agreements, the Escrowed Shares and the Escrowed Options were all fully released by December
16, 2006. Accordingly, at December 31, 2009 there are no Escrowed Shares or Escrowed Options
remaining.
INTEREST OF MANAGEMENT AND OTHERS IN MATERIAL TRANSACTIONS
The management of the Company is not aware of any material interest, direct or indirect, in any
transaction within the three most recently completed financial years or during the current
financial year that has materially affected or will materially affect Parlay of (i) any director or
executive officer of the Company, (ii) any person or company that is the direct or indirect
beneficial owner of, or who exercises control or direction over, more than 10 percent of the
outstanding Common Shares or (iii) an associate or affiliate of any of the persons or companies
referred to in (i) or (ii).
- 32 -
CONFLICTS OF INTEREST
Additionally, from time to time there may be potential conflicts of interest that arise for some of
the directors and officers of the Company. Such conflicts, if they arise, will be subject to the
requirements of the OBCA.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Shares is Equity Transfer & Trust Company of
Toronto, Ontario.
MATERIAL CONTRACTS
There are no contracts, other than contracts entered into in the ordinary course of business, that
are material to the Company.
AUDIT COMMITTEE
Audit Committee Charter
The Audit Committee Charter is attached hereto as Schedule "A"
Composition of the Audit Committee
The Audit Committee is comprised of Mr. Anthony D. De Werth, Chair, and Messrs. Barr and
White. All members are financially literate and Messrs. De Werth and Barr are independent
members of the Audit Committee. "Financial literacy" is defined as the ability to read and
understand basic financial statements and all members of the Audit Committee have accounting
or related financial management expertise.
Reliance on Certain Exemptions
During the year ended December 31, 2009 no reliance was placed on any exemptions.
Pre-Approval Policies And Procedures
The Audit Committee has established a policy for the engagement of non-audit services that all
non-audit services require approval by the Audit Committee.
External Auditor Service Fees
The following table sets out the fees billed by the Company’s external auditors during years
ended December 31, 2009 and 2008.
- 33 -
Year ended
December
31, 2009
Description of Fees
Audit Fees
Audit Related Fees
Tax Fees
All Other Fees
$72,900
NIL
NIL
NIL
Year ended
December
31, 2008
$72,000
NIL
2,500
NIL
ADDITIONAL INFORMATION
Additional information, including directors' and officers' remuneration and indebtedness,
principal holders of the Company's securities, options to purchase securities and options
authorized for issuance under equity compensation plans, if applicable, is contained in the
Company's Information Circular for its most recent annual meeting of shareholders that involved
the election of directors. Additional financial information is also provided in the Company's
audited financial statements and management's discussion and analysis for its most recently
completed financial year. Additional information relating to the Company may be found on
SEDAR at www.sedar.com.
- 34 -
SCHEDULE "A"
AUDIT COMMITTEE CHARTER
The Board of Directors of Parlay Entertainment Inc. (the "Company") has adopted this Charter
to govern the operations of the Audit Committee (the "Committee") of the Company’s Board of
Directors. The Committee shall review and reassess the Charter at least annually (at the meeting
to be held pursuant to the end of the Company’s second fiscal quarter). It shall report the
findings of such review and reassessment to the Company’s Board of Directors at least annually
(at the Board meeting following such review). At such time, the Board of Directors will
determine if any modifications to this Charter are required. The Board acknowledges the need to
provide the Committee with sufficient funding to permit the engaging of the independent
auditors or any other independent counsel or advisors that the Committee may choose to retain.
Organization of the Audit Committee
The Committee shall be appointed by the Board of Directors annually and shall comprise at least
three directors, a majority of whom shall be independent of management and the Company.
Members of the Committee shall be considered independent if they have no relationship with
management or the Company that may interfere with the exercise of their independence. A
quorum shall be a minimum of two members. No business may be transacted unless a quorum is
present. All Committee members shall be financially literate. The Company’s Board of
Directors shall appoint one of the members as Chairperson of the Committee annually. The
Committee shall review their compliance with these independence requirements annually (at the
meeting to be held pursuant to the end of the Company’s third fiscal quarter).
Statement of Policy
The Audit Committee shall provide assistance to the Board of Directors in fulfilling their
oversight responsibility to the shareholders relating to the Company’s consolidated financial
statements and financial reporting process, including both annual and interim reporting; the
systems of internal accounting and financial controls; the annual independent audit of the
Company’s consolidated financial statements; and any other duties imposed by or advisable in
connection with compliance under applicable listing standards. In so doing, it is the
responsibility of the Committee to maintain free and open communication among the
Committee, the independent auditors and management of the Company. In discharging its
oversight role, the Committee is empowered to investigate any matter brought to its attention
with full access to all books, records, facilities and personnel of the Company and the power to
retain outside counsel or other experts for this purpose.
Responsibilities and Processes
The primary responsibility of the Committee is to oversee the Company’s annual and interim
financial reporting process on behalf of the Board and report the results of its activities to the
Board. Management is responsible for preparing the Company’s consolidated financial
statements and the independent auditors are responsible for auditing those financial statements.
The Committee, in discharging its responsibilities, believes its policies and procedures should
remain flexible in order to best react to changing conditions and circumstances.
- 35 -
The following shall be the principal recurring processes of the Audit Committee in carrying out
its oversight responsibilities. The processes are set forth as a guide with the understanding that
the Committee may supplement them as appropriate.
•
The Committee shall have a clear understanding with management and the independent
auditors that the independent auditors are ultimately accountable to the Board and the
Audit Committee, as representatives of the Company’s shareholders. The Committee
shall have the ultimate authority and responsibility to evaluate and, where appropriate,
recommend the replacement of the independent auditors by the Board of Directors. The
Committee shall discuss with the auditors their independence from management and the
Company. The Committee shall discuss any disclosed relationships between the auditors
and the Company and the impact of such relationships on the auditors’ independence.
The Committee shall review and approve the Compensation of the independent auditors.
The Committee shall recommend to the Board any appropriate actions or procedures to
oversee the independence of the auditors.
•
Annually (at the meeting held pursuant to the end of the Company’s fourth fiscal
quarter), the Committee shall review and recommend to the Board the selection of the
Company’s independent auditors, such selection subject to approval by the Board of
Directors.
•
The Committee shall discuss with the independent auditors the overall scope and plans
for their audit, including the adequacy of staffing and compensation, and shall review the
independent auditors annual engagement letter (at the meeting to be held pursuant to the
Company’s third fiscal quarter). Also, at each meeting the Committee shall discuss with
management and the independent auditors the adequacy and effectiveness of the
Company’s accounting and financial controls, including systems to monitor and manage
business risk as well as legal and ethical compliance programs. Annually, the Committee
shall review the independent auditors’ letter on internal controls and other reporting
matters (at the meeting held pursuant to the end of the Company’s first fiscal quarter).
•
The Committee shall review the interim consolidated financial statements with
management and the independent auditors prior to the filing of the Company’s interim
financial reporting. Further, at each meeting of the Committee, if appropriate and at the
call of the chair and/or the independent auditors, the Committee shall meet separately
with the independent auditors, without management present, to discuss relevant matters.
•
The Committee shall review with management and the independent auditors the
consolidated financial statements of the Company (or any annual report to shareholders),
including the independent auditors’ judgment about the quality, not just acceptability, of
accounting principles, the reasonableness of significant judgments and the clarity of the
disclosures in the consolidated financial statements. Also, the Committee shall discuss
the results of the annual external audit and any other matters required to be
communicated to the Committee by the independent auditors under generally accepted
auditing standards (at the meeting to be held pursuant to the Company’s fourth fiscal
quarter).
•
The Committee shall prepare the report required to be included in the proxy statement
used in connection with any annual meeting of the Company’s shareholders. The
- 36 -
Committee shall review any annual report prior to its distribution to the shareholders.
The Committee shall disclose annually whether or not its complement includes a
financial expert and if not, why not. The Committee shall further review the annual
internal control report prepared by management which states the responsibility of
management in establishing and maintaining a system of internal control and which
contains an assessment as to the effectiveness of the internal control structure. The
Committee shall review this report with the auditors annually (at the meeting to be held
pursuant to the Company’s fourth fiscal quarter) and the auditors’ report thereon.
•
The Committee shall establish procedures to receive and respond to employee and others’
complaints and concerns regarding the Company’s accounting and auditing matters.
Such procedures shall be reviewed annually and an annual report of any such complaints
and concerns shall be reviewed by the Committee (at the meeting to be held pursuant to
the end of the Company’s fourth fiscal quarter).
•
The Committee shall require the Chief Financial Officer to report on the adoption of a
code of ethics for the Company’s finance function and report annually on compliance
with that code of ethics (at the meeting to be held pursuant to the end of the Company’s
fourth fiscal quarter).
•
The Committee shall request an annual report on a review of the expense reports of
senior management and their compliance with the Company’s Policies and Procedures
manual (at the meeting to be held pursuant to the end of the Company’s third fiscal
quarter).
•
In order to fulfill its obligations hereunder, the Committee shall meet as often as it deems
necessary. However, the Committee shall meet a minimum of four times a year. Such
meetings may be conducted in person or via telephonic conferencing equipment. The
Committee shall maintain written minutes of all meetings or, alternatively, report the
results of its meetings at meetings of the full Board of Directors with such report to be
reflected in the minutes of meetings of the full Board. The independent auditors shall be
given notice of every meeting of the Committee. The independent auditors shall have the
right to attend all meetings of the Committee. The independent auditors shall have the
right to call meetings through liaison with the Chair. Between meetings, the Chair of the
Committee may exercise any power delegated by the Committee.
Scope of Audit Committee’s Role
While the Audit Committee has the responsibilities and powers set forth in this Charter, it is not
the duty of the Audit Committee to plan or conduct audits or to determine that the Company’s
consolidated financial statements and disclosures are complete and accurate and are in
accordance with generally accepted accounting principles and applicable rules and regulations.
These are the responsibilities of management and the independent auditor.
- 37 -
APPENDIX B. BIDDING PROCEDURES
Page 28
Page 28
Parlay Entertainment Inc. - Bidding Procedures
Set forth below are the bidding procedures (the “Bidding Procedures”) to be employed
with respect to the sale (the "Sale Process") for the assets, property and undertakings (the
“Purchased Assets”) of Parlay Entertainment Inc. (“Parlay”) by BDO Canada Limited in its
capacity as proposal trustee (“BDO” or the “Proposal Trustee”) of Parlay.
On May 4, 2011, Parlay filed a notice of intention to make a proposal pursuant to the
Bankruptcy and Insolvency Act (“BIA”) naming BDO as the Proposal Trustee.
By order dated May 9, 2011, the Honourable Mr. Justice Cumming approved, inter alia,
(a) a debtor-in-possession credit facility entered into on April 25, 2011 (the “DIP Facility”) by
Parlay and M Projects Assets S.A. (the “DIP Lender” or the “Stalking Horse Bidder”); (b) a
second ranking charge against the property of Parlay in the amount of $500,000 to secure the DIP
Facility; and (c) a first ranking charge against the property of Parlay in the amount of $200,000 to
secure payment of professional fees (the “Administration Charge”).
By order dated June 3, 2011, the Honourable Mr. Justice Morawetz issued an order
approving and accepting, inter alia, (a) these bidding procedures (the “Bidding Procedures”) for
the purpose of conducting the staking horse sales process; (b) the asset purchase agreement dated
May 30, 2011 (the “Stalking Horse Asset Purchase Agreement” or “Stalking Horse Bid”)
between Parlay, the Proposal Trustee, and the Stalking Horse Bidder; and (c) the payment of the
Break-Up Fee and the Expense Reimbursement (as each such term is defined in the Stalking Horse
Asset Purchase Agreement) by the Proposal Trustee to the Stalking Horse Bidder in accordance
with the provisions of the Stalking Horse Asset Purchase Agreement.1 All amounts specified
herein are in Canadian dollars.
Within five (5) business days following the Auction (defined below), Parlay shall, with the
assistance of the Proposal Trustee, bring a motion (the “Sale Approval Motion”) seeking the
granting of an order by the Court authorizing and approving the sale of the Purchased Assets to the
Successful Bidder(s) (as defined below) (such order, as approved, the “Approval and Vesting
Order”).
Assets to be Sold
With the assistance of the Proposal Trustee, Parlay is offering for sale all of the company’s
right, title and interest in, and to, all the Purchased Assets and is encouraging bids for all the
Purchased Assets, in whole but not in part.
1
The Stalking Horse Asset Purchase Agreement is attached as Appendix "E" to the Proposal Trustee’s Second Report
dated May 27, 2011 (the “Second Report”) in support of Parlay’s motion returnable June 3, 2011 (the “June 2011
Motion Record”). All capitalized terms not otherwise defined herein, shall have the respective meanings ascribed to
them in the Stalking Horse Asset Purchase Agreement. A copy of the Second Report and the June 2011 Motion
Record is available on the Proposal Trustee’s website at www.bdo.ca/extranets/parlayentertainment
The Bidding Process
The Proposal Trustee shall undertake the following with the assistance of Parlay:
(i)
identify and approach potential purchasers for the purpose of marketing the
Purchased Assets with the assistance of Parlay;
(ii)
prepare a confidential information memorandum (“CIM”) with the assistance
of Parlay to be distributed to those prospective purchasers;
(iii)
set up and manage an electronic data room;
(iv)
distribute the CIM to those prospective purchasers who execute a
confidentiality agreement (in a form satisfactory to Parlay);
(v)
determine whether any person is a Qualified Bidder (as defined below);
(vi)
coordinate the efforts of Qualified Bidders in conducting their due diligence
investigations;
(vii)
receive offers from Qualified Bidders; and
(viii)
negotiate any offers made to purchase the Purchased Assets on behalf of Parlay.
(collectively, the “Bidding Process”).
The Proposal Trustee shall have the right to adopt such other rules for the Bidding Process
(including rules that may depart from those set forth herein) that will better promote the goals of
the Bidding Process, provided, however, that such other rules are not inconsistent with any of (i)
the provisions of the Stalking Horse Asset Purchase Agreement (including the deadlines therein),
(ii) the Bid Deposit Requirement (as defined below), (iii) the Break-Up Fee and Expense
Reimbursement requirement (each as defined below), and (iv) the bid protections granted to the
Stalking Horse Bidder herein.
Participation Requirements
A “Qualified Bidder” is a potential bidder that the Proposal Trustee determines is likely
(based on the experience of and considerations deemed relevant by the Proposal Trustee such as
the reputation of the bidder, financial information submitted by the bidder, etc.) to be able to
consummate a sale if selected as the Successful Bidder (as defined below). Notwithstanding the
foregoing, the Stalking Horse Bidder shall be deemed a Qualified Bidder.
Due Diligence
Any Person that wishes to participate in the Bidding Process must (i) execute a
confidentiality agreement (the “Confidentiality Agreement”) attached as Appendix “1”; and (ii)
be a Qualified Bidder. Qualified Bidders who have executed the Confidential Agreement will be
able to conduct phase one due diligence.
The Proposal Trustee shall determine, in its sole discretion, which Qualified Bidders shall
be afforded with access to additional confidential information to complete their due diligence.
The Proposal Trustee shall not be obligated to furnish information of any kind whatsoever
to any Person that the Proposal Trustee determines not to be a Qualified Bidder. The Proposal
Trustee will afford any Qualified Bidder the time and opportunity to conduct reasonable due
diligence subject to the time frames contemplated by these Bidding Procedures. The Proposal
Trustee will designate a representative to coordinate all reasonable requests for additional
information and due diligence access from such Qualified Bidders.
Bid Deadline
A Qualified Bidder that desires to make a bid shall deliver written copies of its bid and the
Required Bid Materials (defined below) to the Proposal Trustee c/o BDO Canada Limited 123
Front Street, Suite 1200, Toronto Ontario M5J 2M2, Attention: Blair Davidson not later than 5:00
p.m. (prevailing Eastern time) on July 18, 2011 (the “Bid Deadline”). In the event that a bid is
determined to be a Qualified Bid, the Proposal Trustee shall deliver a written copy of any such
Qualified Bid and the Required Bid Materials to the Stalking Horse Bidder's counsel, Attention:
David Cohen, Gowlings LLP, 1 First Canadian Place, 100 King Street West, Suite 1600, Toronto,
Ontario M5X 1G5.
Bid Requirements
All bids (other than the Stalking Horse Bid) must include (unless such requirement is
waived by the Proposal Trustee) (the “Required Bid Materials”):
2
1.
A purchase price equal to, or greater than, $2,031,322 (the “Minimum Bid
Amount” )2, if the bid is for substantially all of Parlay’s assets;
2.
A letter stating that the bidder's offer is irrevocable until the first business
day after the Purchased Assets have been sold pursuant to the closing of the
sale or sales thereof approved by the Court;
3.
An executed copy of a proposed purchase agreement and a redline of the
Qualified Bidder's proposed purchase agreement reflecting variations from
the Stalking Horse Asset Purchase Agreement (the “Marked Agreement”).
All Qualified Bids must provide: (a) a commitment to close within two (2)
business days after satisfaction of all conditions and a covenant to use
commercial best efforts to satisfy all conditions; and (b) the identity of and
contact information for the bidder and full disclosure of any affiliates and
any debt or equity financing sources involved in such bid;
4.
A cash deposit in the amount of $100,000 in the form of a wire transfer,
Which is the sum of the Stalking Horse Bid, the Break-Up Fee, the maximum amount of the Expense
Reimbursement and the Overbid Amount.
certified cheque or such other form acceptable to the Proposal Trustee (the
“Bid Deposit”), which shall be placed in an escrow account (the “Escrow
Account”). The Escrow Account shall not be subject to any Liens
whatsoever of Parlay’s creditors or otherwise, and funds shall be disbursed
from the Escrow Account only as follows: (i) if the Qualified Bidder is the
Successful Bidder at the Auction, its Bid Deposit will be applied to the
purchase price payable by it under its bid on the closing thereof, and (ii) if
the Qualified Bidder is not the Successful Bidder at the Auction, then its
Bid Deposit shall be returned to it (subject to the other provisions of these
Bidding Procedures and the terms of its purchase agreement);
5.
A representation of the bidder and written evidence that the bidder has a
commitment for financing or other evidence of the proposed purchaser's
ability to consummate the proposed transaction, including executed copies
of any financing agreements, commitments, guarantees of the payment
obligations of the proposed purchaser, and which the Proposal Trustee
believes to be sufficient to satisfy the bidder's obligations under its proposed
bid, including to consummate the transaction contemplated by the proposed
purchase agreement submitted by it as provided above;
6.
The bid shall identify with particularity those executory contracts and
unexpired leases of Parlay with respect to which the bidder seeks to receive
an assignment;
7.
The bid shall not request or entitle the bidder to any transaction or break-up
fee, expense reimbursement, termination or similar type of fee or payment
and shall include an acknowledgement and representation of the bidder that
it has had an opportunity to conduct any and all due diligence regarding the
Purchased Assets prior to making its offer, that it has relied solely upon its
own independent review, investigation and/or inspection of any documents
and/or the Purchased Assets in making its bid, and that it did not rely upon
any written or oral statements, representations, warranties, or guarantees,
express, implied, statutory or otherwise, regarding the Purchased Assets, the
financial performance of the Purchased Assets or the physical condition of
the Purchased Assets, or the completeness of any information provided in
connection therewith or the Auction, except as expressly stated in these
Bidding Procedures or the Stalking Horse Asset Purchase Agreement;
8.
The bid shall not contain any due diligence, financing or regulatory
conditions of any kind other than those contained in the Stalking Horse
Asset Purchase Agreement, though the bid may be subject to the
satisfaction of other specific conditions in all material respects at Closing.
9.
The bid shall fully disclose the identity of each entity that will be bidding
for the Purchased Assets or otherwise participating in connection with such
bid, and the complete terms of any such participation;
10.
The bid shall state that the offering party consents to the jurisdiction of the
Court;
11.
The bid shall include evidence of authorization and approval from the
bidder's board of directors (or comparable governing body) with respect to
the submission, execution, delivery and closing of the proposed purchase
agreement of the bidder;
12.
The bid shall state that the offering party has not acted, and will not act, in
collusion with any other Person in connection with its bid; and
13.
The bid shall identify with particularity any liabilities being assumed.
A bid received from a Qualified Bidder that includes all of the Required Bid Materials and
is received by the Bid Deadline is a “Qualified Bid”. The Proposal Trustee reserves the right to
determine the value of any Qualified Bid, and which Qualified Bid constitutes the best offer (the
“Lead Bid”). Forthwith after the Bid Deadline, the Proposal Trustee shall determine which
Qualified Bid shall be the Lead Bid for the purposes of the Auction. A copy of the Lead Bid will
be provided to all Qualified Bidders prior to the Auction Date.
Notwithstanding the bid requirements detailed above, the Stalking Horse Bid shall be
deemed a Qualified Bid.
Credit Bidding
Notwithstanding anything herein to the contrary and as set out in the Stalking Horse Asset
Purchase Agreement, the Stalking Horse Bidder who is also the DIP Lender shall be entitled to
credit bid. The DIP Lender shall be entitled to apply a credit in the aggregate amount of $500,000
against Parlay’s indebtedness pursuant to the DIP Facility.
In the event that the DIP Facility is not fully extended to Parlay by the Bid Deadline, the
DIP Lender shall be entitled to advance an amount of cash equal to $500,000 less the amount
advanced pursuant to the DIP Facility.
"As Is, Where Is, With All Faults"
The sale of the Purchased Assets shall be on an "as is", "where is" and "with all faults"
basis and without representations, warranties, or guarantees, express, implied or statutory, written
or oral, of any kind, nature, or description by the Proposal Trustee or Parlay or their respective
agents, representatives or estates, or any of the other parties participating in the sales process
pursuant to these Bid Procedures, except as may otherwise be provided in a definitive purchase
agreement with the Proposal Trustee on behalf of Parlay. By submitting a bid, each Qualified
Bidder shall be deemed to acknowledge and represent that it has had an opportunity to conduct
any and all due diligence regarding the Purchased Assets prior to making its bid, that it has relied
solely upon its own independent review, investigation and/or inspection of any documents and/or
the Purchased Assets in making its bid, and that it did not rely upon any written or oral statements,
representations, warranties, or guarantees, express, implied, statutory or otherwise, regarding the
Purchased Assets, the financial performance of the Purchased Assets or the physical condition or
location of the Purchased Assets, or the completeness of any information provided in connection
therewith or the Auction, except as expressly stated in these Bidding Procedures or as set forth in a
definitive purchase agreement with Parlay. This section shall not merge on closing and is deemed
incorporated by reference in all closing documents and deliveries.
Free of Any and All Liens
Except as otherwise provided in the Stalking Horse Asset Purchase Agreement or another
Successful Bidder's purchase agreement, and subject to any Permitted Liens which may be defined
in the Approval and Vesting Order all of Parlay’s right, title and interest in and to the Purchased
Assets subject thereto shall be sold free and clear of all Liens other than Permitted Liens pursuant
to the Approval and Vesting Order.
The Auction and Auction Procedures
If a Qualified Bid (other than that submitted by the Stalking Horse Bidder) or Qualified
Bids which, in either case, in the aggregate provide for consideration of not less than the
Minimum Bid Amount, have been received by the Proposal Trustee on or before the Bid Deadline,
the Proposal Trustee shall conduct an auction (the “Auction”) with respect to all of the Purchased
Assets, with the Lead Bid as the starting bid for the Auction.
The Auction shall be conducted at the offices of the Proposal Trustee, 123 Front Street,
Suite 1200, Toronto Ontario M5J 2M2 (the “Auction Site”) at 11:00 a.m. (prevailing Eastern
time) on July 25, 2011 (the “Auction Date”), or such other place and time as the Proposal Trustee
shall notify all Qualified Bidders who have submitted Qualified Bids and expressed their intent to
participate in the Auction as set forth above.
Except as otherwise provided herein, based upon the terms of the Qualified Bids received,
the number of Qualified Bidders participating in the Auction, and such other information as the
Proposal Trustee determines is relevant, the Proposal Trustee may conduct the Auction in any
manner that it determines will achieve the maximum value for the Purchased Assets, provided that
all Qualified Bidders that have timely submitted a Qualified Bid shall be entitled to be present
during each round of bidding, the identity of each such Qualified Bidder shall be disclosed to all
other Qualified Bidders, and all material terms of each Qualified Bid and each subsequent bid
made by each such Qualified Bidder shall be disclosed to all other Qualified Bidders. The
Proposal Trustee also may set opening bid amounts in each round of bidding as the Proposal
Trustee determines to be appropriate.
If Qualified Bidders submit Qualified Bids, then the Proposal Trustee shall (i) promptly
following the Bid Deadline, review each Qualified Bid on the basis of the financial and contractual
terms and the factors relevant to the sale process, including those factors affecting the speed and
certainty of consummating the Sale Process, and (ii) as soon as practicable after the conclusion of
the Auction, identify the best offer for the Purchased Assets (to the extent any such bid is
acceptable to the Proposal Trustee, a “Successful Bid” and the bidder or bidders making such bid,
the “Successful Bidder”).
At the hearing on the Sale Approval Motion, the Proposal Trustee will present the
Successful Bid to the Court for approval. The Proposal Trustee reserves all rights not to submit
any bid which is not acceptable to the Proposal Trustee for approval by the Court. The Proposal
Trustee acknowledges that the Stalking Horse Bid is a Qualified Bid and shall be submitted to the
Court for approval in the event that there is no other Successful Bid. Except as otherwise
provided herein or as restricted by the Stalking Horse Asset Purchase Agreement, the Proposal
Trustee, in the exercise of its fiduciary duties, may adopt rules for bidding at the Auction that, in
its business judgment, will better promote the goals of the bidding process or any order of the
Court entered in connection herewith.
If no Qualified Bid is submitted by the Bid Deadline or all Qualified Bids that have been
submitted have been withdrawn prior to the Bid Deadline or the Auction Date, then the Proposal
Trustee shall cancel the Auction (in which case, the Successful Bid shall be the Stalking Horse
Bid, and the Successful Bidder shall be the Stalking Horse Bidder).
Break-Up Fee and Expense Reimbursement
To provide an incentive and to compensate the Stalking Horse Bidder for performing the
substantial due diligence and incurring the expenses necessary in entering into the Stalking Horse
Asset Purchase Agreement with the knowledge and risk that arises from participating in the sale
and subsequent bidding process, the Proposal Trustee has agreed that Parlay shall pay the Stalking
Horse Bidder, under the conditions outlined herein and in the Stalking Horse Asset Purchase
Agreement, a break-up fee in the amount of $50,000 (the “Break-Up Fee”), and to reimburse the
Stalking Horse Bidder for the reasonable out-of-pocket expenses associated with the Stalking
Horse Asset Purchase Agreement in the amount of up to $50,000 (the “Expense
Reimbursement”). The Proposal Trustee will take into account the Break-Up Fee and the
maximum amount of the Expense Reimbursement in each round of bidding with respect to
the Stalking Horse Bidder.
The Break-Up Fee and Expense Reimbursement were material inducements for, and a
condition of, the Stalking Horse Bidder's entry into the Stalking Horse Asset Purchase Agreement.
The Break-Up Fee and the Expense Reimbursement, if payable in accordance with the Stalking
Horse Bid, shall be paid in accordance with the Stalking Horse Bid and the Bidding Procedures
Order.
Overbid Amount; Minimum Bid Increment
There shall be an overbid amount that a Qualified Bidder must bid to exceed the Stalking
Horse Bid (“Overbid Amount”), and that amount shall be at least $37,500 for all bids made by
Qualified Bidders, at the Auction. All subsequent bids shall not be less than $35,000 in excess of
the preceding bid, unless modified by the Proposal Trustee. In each round of bidding, the
Proposal Trustee will take into account the fact that the Break-Up Fee and Expense
Reimbursement is not payable with respect to the Stalking Horse Bidder.
For example, at the Auction, if the Lead Bid is at the Minimum Bid Amount:
(a)
the next bid for any Qualified Bidder other than the Stalking Horse Bidder
cannot be less than $2,066,322 (the Minimum Bid Amount plus $35,000);
and
(b)
the next bid for the Stalking Horse Bidder cannot be less than $1,966,322
($1,931,3223 plus $35,000).
Acceptance of Qualified Bids
The sale of the Purchased Assets to any Successful Bidder by the Proposal Trustee is
expressly conditional upon the approval of the Successful Bid by the Court at the hearing of the
Sale Approval Motion. The Proposal Trustee’s presentation of any Qualified Bid to the Court for
approval does not obligate the Proposal Trustee to close the transaction contemplated by such
Qualified Bid until the Court approves the bid. The Proposal Trustee will be deemed to have
accepted a bid only when the bid has been approved by the Court at the hearing on the Sale
Approval Motion.
Sale Approval Motion Hearing
The Sale Approval Motion shall be made returnable on or before August 2, 2011 at 10:00
a.m. (prevailing Eastern Time) in the Court. The Proposal Trustee, in the exercise of its business
judgment, reserves its right to the extent consistent with the Stalking Horse Asset Purchase
Agreement to change the date of the hearing of the Sale Approval Motion in order to achieve the
maximum value for the Assets.
At the hearing of the Sale Approval Motion, Parlay shall, with the assistance of the
Proposal Trustee, seek approval from the Court to consummate the Successful Bid, and at the
Proposal Trustee’s election, to consummate the next best Qualified Bid (the “Back-Up Bid”, and
the party submitting the Back-Up Bid, the “Back-Up Bidder”) should the Successful Bid not be
closed in accordance with its terms for any reason.
If the Successful Bidder fails to consummate an approved Sale Process within two (2)
business days after satisfaction of all conditions thereof, the Proposal Trustee may, but shall not be
required, to consummate the Back-Up Bid without the requirement of any further approval thereof
by the Court. The Back-Up Bid shall remain open until the first business day following the
consummation of a Sale of the Purchased Assets to the Successful Bidder.
Modifications
The Proposal Trustee may (i) determine which Qualified Bid, if any, is the best offer; and
(ii) reject at any time before the issuance and entry of an Approval and Vesting Order approving a
Qualified Bid, any bid that is (a) inadequate or insufficient, (b) not in conformity with the
requirements of the Bidding Procedures, or the terms and conditions of sale, or (c) contrary to the
best interests of the Proposal Trustee, Parlay’s estate or its creditors.
Notwithstanding the foregoing, the provisions of this paragraph shall not operate or be
construed to permit the Proposal Trustee to (a) accept any Qualified Bid that (i) does not require a
bid deposit of at least $100,000 be placed in a protected, segregated account, which shall serve as
protection and security for the Stalking Horse Bidder as outlined herein; or (ii) does not equal or
exceed the Overbid Amount, or (iii) impose any terms and conditions upon the Stalking Horse
3
Being the Stalking Horse Bid of $1,893,822 plus the Overbid Amount of $37,500.
Bidder that are contradictory to or in breach of the terms of the Stalking Horse Asset Purchase
Agreement other than any such terms and conditions set forth in these Bidding Procedures or the
Bidding Procedures Order.
Miscellaneous
The Auction and these Bidding Procedures are solely for the benefit of the Proposal
Trustee and nothing contained in the Bidding Procedures Order or these Bidding Procedures shall
create any rights in any other person or bidder (including without limitation rights as third party
beneficiaries or otherwise) other than the rights expressly granted to a Successful Bidder under the
Bidding Procedures Order. The bid protections incorporated in these Bidding Procedures are
solely for the benefit of the Stalking Horse Bidder.
Except as provided in the Bidding Procedures Order and Bidding Procedures, the Court
shall retain jurisdiction to hear and determine all matters arising from or relating to the
implementation of the Bidding Procedures Order.
HBdocs - 10147738v8
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© 2011 Gaming Intelligence Services Ltd.
http://www.gamingintelligence.com/business
06/30/2011
Budget to actual cash flow analysis
Week 9 - Ended July 1, 2011
Projected
Actual
Variance
Cash Receipts
Receivables from Customers
Customer #1 deposit (PEL)
Customer # 2 deposit (PEL)
Smart (15,000 pounds sterling) (PEL)
Intervision (PGL)
Stays in PGL
Video King (PEI)
207 Media (PEI) - rent
207 Media (PEI) RB
207 Media (PEI) managed service fee
Double B (PEL)
PAF (PEL)
Expekt (PEL)
Bet 24 (PEL)
Palaces (PML)
HST refunds
2010 corporate tax refund
Other receipt
Total Cash Receipts
192,637
May 4, 2011 - July 1, 2011
Projected
Actual
Variance
192,637
-
150,000
250,000
4,800
6,800
17,000
6,000
49,730
24,000
10,000
-
241,504
4,915
7,346
16,525
7,542
3,996
6,369
48,100
12,159
16,313
(150,000)
(8,496)
115
546
(475)
1,542
(49,730)
3,996
6,369
24,100
2,159
16,313
-
192,637
192,637
518,330
381,768
(136,562)
65,000
62,018
2,982
15,000
1,300
20,000
(30,850)
(3,705)
(2,179)
325,000
15,633
22,600
26,814
23,100
2,250
6,000
2,000
45,000
3,900
9,000
2,400
14,500
1,940
7,500
30,000
12,500
12,500
80,000
80,000
108,591
20,000
80,000
328,353
15,633
22,600
40,941
11,093
707
896
1,430
33,900
1,356
1,913
6,960
1,800
16,950
12,500
12,500
50,850
49,684
900
110,502
17,795
(3,353)
(14,127)
12,007
1,543
5,104
570
11,100
2,544
9,000
487
7,540
1,940
5,700
13,050
29,150
30,316
(900)
(1,911)
20,000
62,205
2,548
195,185
(264,202)
931,228
(412,898)
188,000
191,964
55,402
28
(62,662)
(62,662)
(412,898)
(224,898)
500,000
275,102
739,264
(357,496)
188,028
343
500
558
(357,496)
(168,067)
380,507
212,440
1,350
3,910
1,086
206,094
Cash Disbursements
Purchases
Overhead Costs
Payroll - gross
Vacation pay
Pericom (Perry Malone)
Scott F. White Barrister and Solicitor
Manulife - health benefits
RBC - LTD
Expenses - CIBC VISA
Expenses - TD Canada Trust
Overhead Cost
Rent (gross rent)
Toronto Maintenance (cleaners)
Telephone - One Connect
Telephone - Bell (all three accounts)
Internet - Blink (catch up then monthly)
15,000
1,300
Insurance
Anchor - annual premium
D & O - annual premium
Professional Fees
MSCM llp - 2010 audit
Heenan Blaikie - balance of retainer
BDO - balance of retainer
Heenan Blaikie - ongoing fees (Note 1)
BDO - ongoing fees (Note 1)
20,000
20,000
20,000
50,850
23,705
Other
Funding 2011 / 2012 AGCC license
(additional share subscription in PGL 70,000 pounds sterling)
PGL licensee funding February 2011 (TGN / NetPlay)
(assumed ongoing covered by PGL cash flow)
(preferably additional share subscription)
MPP Projects Assets S.A. legal fees
MPP Projects Assets S.A. compliance fees
Contingency
Total Cash Disbursements
Net Cash from Operations
Opening Balance - CAD account
Opening Balance - USD account (in CAD - historical fx rate)
Opening Balance - EUR account (in CAD - historical fx rate)
Opening Balance - GBP account (in CAD - historical fx rate)
Net Cash from Operations
DIP Advance (Repayment)
Closing Balance - Bank Balance (aggregate)
Less: Closing balance - USD account (in CAD - historical fx rate)
Less: Closing balance - EUR account (in CAD - historical fx rate)
Less: Closing balance - GBP account (in CAD - historical fx rate)
CAD bank balance
10,000
12,179
151,300
(151,300)
426,402
148,752
43,885
162,200
1,360
3,910
1,086
43,885
212,440
(151,300)
275,102
275,102
212,440
1,350
3,910
1,086
206,094
55,402
56,831
(119,493)
(62,662)
Notes
1 - At July 1, 2011, Parlay Entertainment Inc. has arrears of professional fees related to its Notice of Intention to Make a Proposal and related proceedings broken down
Heenan Blaikie (Legal Fees - including HST)
BDO Canada Limited (Trustees' Fees - including HST)
$90,653
$5,416

Third Report of theTrustee

Transcription

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