EXHIBIT 10.1
INTELLECTUAL PROPERTY AND TECHNOLOGY PURCHASE AGREEMENT
This Intellectual Property and Technology Purchase Agreement dated
as of
July 31, 2008 (the "AGREEMENT") by and among PLAYTECH SOFTWARE
LIMITED, a
company incorporated under the laws of the British Virgin Islands
under number
1030187 the registered office of which is at Trident Chambers, PO
Box 146, Road
Town, Tortola, British Virgin Islands ("BUYER") and MIXTV LTD., a
company
incorporated under the laws of Israel, number 513552950, the
principal place of
business of which is at Kiryat Atidim, Bldg 2, Tel Aviv 61580,
Israel
("SELLER").
WHEREAS, Seller is engaged in providing an end-to-end solution for
Mass
Multi-Player broadcast games and interactive gaming TV shows on
Terrestrial,
Digital, Cable, DBS and the WEB (the "BUSINESS"); and
WHEREAS, Seller owns the Purchased Assets (as hereinafter defined),
and Buyer
desires to acquire from Seller, and Seller desires to assign to
Buyer, all its
right, title and interest in such Purchased Assets upon the terms
and subject to
the conditions hereinafter set forth; and
NOW, THEREFORE, for good and valuable consideration, the
sufficiency of which is
hereby acknowledged, Seller and Buyer hereby agree as follows:
1.
DEFINITIONS
The following terms, as used herein, have the following meanings:
1.1. "AFFILIATE" means, with respect to any Person, any Person
directly or
indirectly controlling, controlled by, or under common control with
such other Person.
1.2. "ANCILLARY AGREEMENTS" means any and all assignment and
transfer
documents and agreements which Buyer may request that Seller and
its
personnel shall execute and deliver, in addition to this Agreement,
all as required to give effect to the transactions contemplated
hereby.
1.3. "BANKRUPTCY EVENT" means any of the following events (i)
Seller shall
admit in writing its inability to pay its debts as they fall due;
(ii)
shall become insolvent; (iii) shall apply for or consent to the
appointment of any liquidator, receiver, trustee or administrator
for
all or a substantial part of its business, properties, assets or
revenues; (iv) a liquidator, receiver, trustee or administrator
shall
be appointed for Seller; (v) Seller shall institute (by petition,
application, answer, consent or otherwise) any bankruptcy,
arrangement, readjustment of debt, dissolution, liquidation or
similar
executory or judicial proceeding; (vi) a bankruptcy, arrangement,
readjustment of debt, dissolution, liquidation or similar executory
or
judicial proceeding shall be instituted against Seller; or (vii)
Seller shall call a creditors' meeting for the purpose of entering
into an arrangement with them.
1.4. "CONFIDENTIAL INFORMATION" means any proprietary information
relating
to the subject matter of this Agreement, including but not limited
to
the Purchased Assets, all copies thereof, and all Intellectual
Property in the Purchased Assets, all designs, concepts, customers,
franchise, performance, structure, scientific, technical,
algorithmic,
price, financial, and marketing information whether in written,
physical, digitalized, oral or visual form.
1.5. "ESCROW AGENT" means Abramovich Trust Company Ltd.
1.6. "GOVERNMENTAL AGENCY" means any local, regional, state,
foreign or
other governmental agency, instrumentality, commission, authority,
board or body.
1.7. "INTELLECTUAL PROPERTY" means and includes all of the
following: (A)
United States and foreign patents, patent applications, patent
disclosures and all related continuation, continuation-in-part,
divisional, reissue, re-examination, utility, model, certificate of
invention and design patents, design patent applications,
registrations and applications for registrations, (B) copyrights
and
registrations and applications for registration thereof, (C)
computer
software, programs, flow charts, programmers' notes, data and
documentation, (D) technology, trade secrets and confidential
business
information, whether patentable or nonpatentable and whether or not
reduced to practice, know-how, designs, prototypes, enhancements,
improvements, works-in-progress, research and development
information,
and (E) other proprietary rights relating to any of the foregoing
(including without limitation remedies against infringements
thereof
and rights of protection of an interest therein under the laws of
all
jurisdictions).
1.8. "JV" means the company jointly owned by Win Gaming Media Inc.
(a
Seller Affiliate) and Two-Way Media Ltd.
1.9. "LIEN" means any mortgage, pledge, security interest,
encumbrance,
lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof), any
trust,
any filing or agreement to grant, deposit or file a pledge or
financing statement as debtor under applicable law, or any
subordination arrangement in favor of another Person.
1.10. "MATERIAL ADVERSE EFFECT" means a material adverse effect on
the
business, assets, operations, financial condition, results of
operations or prospects of a Person.
1.11. "PERSON" means an individual, corporation, partnership,
association,
trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
1.12. "PURCHASED ASSETS" means, collectively, all of the computer
servers
and hardware used by Seller for the Business and all Intellectual
Property of Seller on the date hereof, and without limiting the
generality of the aforesaid - as described in SCHEDULE 1.12 hereto,
including: (i) all of Seller's rights, title and interest in and to
the copyrights, copyright registrations, proprietary processes,
trade
secrets, license rights, specifications, technical manuals and
data,
drawings, inventions, designs, patents, patent applications, trade
names, trademarks, service marks, domain names, URL's, product
information and data, know-how and development work-in-progress,
software, and other intellectual or intangible property embodied in
or
pertaining to the Business, whether pending, applied for or issued,
whether filed in the United States or in other countries; (ii) all
things and intangible assets authored, discovered, developed, made,
perfected, improved, designed, engineered, acquired, produced,
conceived or first reduced to practice by Seller or any of its
employees or agents that are used by Seller in the conduct of the
Business or developed by Seller for use in the Business, in any
stage
of development, including, without limitation, modifications,
enhancements, designs, concepts, techniques, methods, ideas, flow
charts, coding sheets, notes and all other information relating to
the
Business; (iii) any and all design and code documentation, all
application programmer interface documentation in printed and
electronic format, methodologies, processes, trade secrets,
copyrights, design information, product information, technology,
formulae, routines, engineering specifications, technical manuals
and
data, drawings, inventions, know-how, techniques, engineering work
papers, and notes, development work-in-process, and other
proprietary
information and materials of any kind used in or derived from all
of
the above; and (iv) all consents, licenses, marketing rights,
grants,
permits, authorizations and approvals by any Governmental Agency or
any other Person, relating to such Intellectual Property.
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2.
TRANSFER AND SALE OF PURCHASED ASSETS
2.1. TRANSFER AND SALE. Upon the terms and subject to the
conditions of
this Agreement, Buyer agrees to purchase from Seller and Seller
agrees
to sell, transfer, assign and deliver to Buyer at the Closing (as
defined below), free and clear of all Liens, all right, title and
interest in and to the Purchased Assets.
2.2. EXCLUDED ASSETS. Except for the Purchased Assets, no other
assets of
Seller shall be transferred, assigned or purchased pursuant to this
Agreement.
2.3. NO ASSUMPTION OF LIABILITIES. Notwithstanding any provision in
this
Agreement or any other writing to the contrary, Buyer is not
assuming
any liability or obligation of Seller or any predecessor owner of
all
or part of its business, assets or intellectual property, including
the Purchased Assets, of whatever nature, whether presently in
existence or arising or asserted hereafter, contingent or absolute,
whether or not known at the date hereof. All such liabilities and
obligations shall be retained by and remain the obligations and
liabilities of Seller.
3.
PURCHASE PRICE; ESCROW AND RELEASE FROM ESCROW
3.1. In consideration of the acquisition of the Purchased Assets
under
Section 2.1, Buyer agrees to pay to the Seller, subject to the
provisions below, the total amount of $1,750,000 (one million seven
hundred and fifty thousand US dollars) (the "PURCHASE PRICE"). For
the
avoidance of doubt, the Purchase Price is the full and final
consideration to be paid by the Buyer to the Seller, and such
consideration includes any and all taxes (including VAT if
applicable), duties and other mandatory payments applicable to this
transaction, and, without limiting the generality of the aforesaid,
including in Israel.
3.2. Notwithstanding the above, at the Closing the amount of
$1,250,000
(one million two hundred and fifty thousand US dollars) out of the
Purchase Price shall be transferred to the Seller (the "CLOSING
AMOUNT"), and the remaining amount of $500,000 (five hundred
thousand
US dollars) out of the Purchase Price (the "ESCROW AMOUNT") shall
be
transferred to the Escrow Agent and deposited in escrow (the
"ESCROW")
in accordance with the provisions of this Agreement and the
provisions
of the Escrow Agreement attached hereto as SCHEDULE 3.2 (the
"ESCROW
AGREEMENT").
3.3. The Escrow Amount shall remain in escrow until the lapse of 3
months
from the Closing (the "ESCROW PERIOD"). The Escrow Amount held in
Escrow shall be used to satisfy, to the extent possible, any loss,
liability, deficiency, damage, expense or cost (including
reasonable
legal expenses), whether or not actually incurred or paid
(collectively "LOSSES"), which Buyer, its subsidiaries, and each of
their respective officers, directors, employees, agents and
shareholders ("PROTECTED PARTIES") may suffer, sustain or become
subject to, as a result of (i) any misrepresentation or breach of
warranties of Seller contained in this Agreement, the Ancillary
Agreements or in any exhibits, schedules, certificates or other
documents delivered or to be delivered by or on behalf of Seller,
pursuant to the terms of this Agreement or otherwise referenced or
incorporated in this Agreement (collectively, the "RELATED
DOCUMENTS"), (ii) any breach of, or failure to perform, any
covenant
or agreement of Seller contained in this Agreement or any of the
Related Documents, including the full and complete transfer and
assignment of the Purchased Assets to Buyer, (iii) if Buyer or any
Protected Party is made a defendant in or party to any action or
proceeding, judicial or administrative, instituted by any third
party
- also for the liability and the costs and expenses arising out of
such actions or proceedings, or (iv) any amount due to Buyer
pursuant
to this Agreement.
3.4. Buyer shall be entitled to deduct and withhold from any
payment
payable pursuant to this Agreement, the amounts required to be
deducted and withheld under any provision of local or foreign tax
law,
with respect to the making of such payment. To the extent that
amounts
are so withheld, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the party in
respect
of whom such deduction and withholding was made.
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4.
LICENSE; SUPPORT AND MAINTENANCE
In addition to the provisions above, Seller and Buyer (or an
Affiliate of
Seller) shall enter into a Software License Agreement in the form
of
SCHEDULE 4 hereto, by which Buyer grants Seller (or its Affiliate)
a
non-exclusive license to use the software products included in the
Purchased Assets for the sole purpose of providing services to the
JV, and
which contains also support and maintenance provisions and other
terms and
conditions as set forth therein (the "LICENSE AGREEMENT").
5.
TRANSFER OF EMPLOYEES
5.1. Effective on the Closing Date, Seller shall terminate the
employment
of the employees of Seller listed on SCHEDULE 5.1 ("EMPLOYEES").
Seller shall pay all amounts due to the Employees, or due to any
third
party (including without limitation tax and national insurance
authorities, insurance companies and pension, supplementary
education
and other provident funds) in respect of the Employees, by law,
custom, collective agreement or otherwise under contract, including
without limitation settlements, wages, benefits, severance
payments,
arrears of salary, vacation pay, recreation pay, contributions and
other remuneration and payments earned or accrued by or due to or
in
respect of the Employees in connection with the period ending on
the
Closing Date or due to or in respect of the Employees as a
consequence
of termination of their employment by Seller.
5.2. Seller will release and transfer to the Employees all amounts
accrued
in their favor in pension funds or managers insurance policies or
supplementary education funds or other provident funds. For
Employees
hired by Buyer, Seller may transfer the said amounts, for the
benefit
of each Employee, to the name of Buyer and advise Buyer which
action
has been taken.
5.3. Prior to Closing Date, Seller and Buyer shall notify each
Employee
selected by Buyer at its discretion of the intention of Buyer to
offer
employment to such Employee immediately following his or her
dismissal
in accordance herewith. Notices of dismissal by Seller and the
offer
of employment by Buyer shall be coordinated between the parties.
5.4. Without derogating from the preceding Section 5.1, Seller
shall be
solely liable to Employees for any employer liability arising,
whenever arising, from a cause of action created prior to the
Closing
Date or in connection with any such Employee's employment with
Seller
or the termination thereof by Seller (including, without
limitation,
the liabilities referred to in Section 5.1), and will indemnify and
hold Buyer harmless from and against any such employee claim.
Without
derogating from the foregoing, it is agreed that if any claims are
made by Employees against Buyer at any time with respect to
additional
payments relating to or arising in connection with their employment
with Seller or the termination of their employment by Seller, such
as,
without limitation, additional severance relating to the period of
employment by Seller which is caused by a raise in the salary of
such
employee by Buyer at any time, Seller shall be solely responsible
for
settlement of such claims or, at Buyer's option, for reimbursement
and
indemnification of Buyer in respect of such claims.
5.5. Nothing herein shall impose any duty or obligation on Buyer to
make
any employment offer to any Employee or in connection with the
terms
and conditions of such offers, or otherwise in connection with any
Employees or with the termination of their employment with Seller.
Buyer shall not be liable to Seller for any damages, losses or
costs
caused to or borne by Seller in connection with the Employees or
the
termination of their employment if the Closing shall not occur for
any
reason.
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6.
CLOSING
The closing (the "CLOSING") of the transfer and assignment of the
Purchased
Assets to the Buyer shall take place at the offices of the Buyer on
the
date hereof, or at such other time as Buyer and Seller may agree,
but in
any event within 7 days after the date hereof. Such time and date
of
Closing are herein referred to as the "CLOSING DATE". At the
Closing:
6.1. Seller shall deliver to Buyer:
6.1.1. a duly executed copy of resolutions of its Board of
Directors
and shareholders, in the forms attached in SCHEDULE 6.1.1A-B;
6.1.2. all Purchased Assets, pursuant to Buyer's instructions, by
providing all relevant documentation and files by CDs, diskettes
or any other electronic means, and hard copies of the same, and
including, among other things, all documents, data in tangible
form and information related to the Purchased Assets, such as
source codes, object codes, computer programs, flow charts and
related materials, all as shall be required by Buyer, and Seller
shall not keep any copies, summaries, or other documents or data
in any form containing any of the Purchased Assets;
6.1.3. possession of all computer servers and hardware and any
other
tangible assets included in the Purchased Assets;
6.1.4. deeds, bills of sale, endorsements, consents, assignments
and
other good and sufficient instruments of conveyance and
assignment as the Buyer may reasonably request as necessary or
appropriate to vest in Buyer all right, title and interest in, to
and under the Purchased Assets, including, without limitation,
duly executed copies of the Ancillary Agreements; and
6.1.5. a compliance certificate in the form attached hereto as
SCHEDULE 6.1.5, executed by the Seller's Directors.
6.2. Seller, Buyer and the Escrow Agent shall execute and deliver
the
Escrow Agreement.
6.3. Buyer shall transfer the Closing Amount to Seller and the
Escrow
Amount to the Escrow Agent, subject to applicable withholding
requirements.
6.4. Seller and Buyer shall execute and deliver the License
Agreement.
7.
CONDITIONS TO CLOSING
7.1. CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations
of Buyer
and Seller to consummate the Closing are subject to the
satisfaction,
or waiver by each of Buyer and Seller respectively, of the
following
conditions:
7.1.1. No proceeding challenging this Agreement or the transactions
contemplated hereby or seeking to prohibit, alter, prevent or
materially delay the Closing shall have been instituted by any
Person before any court, arbitrator or Governmental Agency and be
pending.
7.1.2. No provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit or
materially alter the consummation of the Closing.
7.2. CONDITIONS TO OBLIGATIONS OF BUYER. The obligation of Buyer to
consummate the Closing is subject to the satisfaction or waiver by
Buyer of the following further conditions:
7.2.1. Seller shall have performed all of its obligations hereunder
required to be performed on or prior to the Closing Date, and the
representations and warranties of Seller contained in this
Agreement or any Ancillary Agreement at the time of their
execution and delivery and in any agreement, document,
certificate or other writing delivered by Seller pursuant hereto
shall be true at and as of the Closing Date, as if made at and as
of such date.
7.2.2. No court, arbitrator or governmental body, agency or
official
shall have issued any order, and there shall not be any statute,
rule or regulation, restraining the effective operation or use by
Buyer of the Purchased Assets on or after the Closing Date.
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7.2.3. Buyer shall have received the closing documents listed in
Section 6 above duly signed, and any others that it may
reasonably request, all in form and substance reasonably
satisfactory to Buyer.
7.2.4. Between the date of this Agreement and the Closing Date,
there
shall not have occurred any change with respect to the business,
assets, properties, condition (financial or otherwise), results
of operations or prospects of Seller which would result in or
would be reasonably likely to have a Material Adverse Effect.
7.2.5. The Key Employee(s) identified as such on Schedule 5.1 shall
have accepted employment with Buyer and shall have executed new
employment agreements with Buyer.
7.3. CONDITIONS TO OBLIGATION OF SELLER. The obligation of Seller
to
consummate the Closing is subject to the satisfaction or waiver by
Seller of the following further conditions:
7.3.1. Buyer shall have performed in all material respects all of
its
obligations hereunder required to be performed by it at or prior
to the Closing Date, and the representations and warranties of
Buyer contained in this Agreement at the time of its execution
and delivery and in any certificate or other writing delivered by
Buyer pursuant hereto shall be true in all material respects at
and as of the Closing Date, as if made at and as of such date.
7.3.2. Seller shall have received the closing documents listed in
Section 6 above duly signed, and any other documents that are
reasonably required hereunder, all in form and substance
reasonably satisfactory to Seller.
8.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that on the Closing Date:
8.1. CORPORATE EXISTENCE AND POWER. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws
of
Israel, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry
on
its business as now conducted.
8.2. AUTHORIZATION; EXECUTION AND DELIVERY; NO VIOLATION. The
execution,
delivery and performance of this Agreement and each of the
Ancillary
Agreements entered into in connection with the transactions
contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of Seller. This Agreement
and
each of the Ancillary Agreements entered into in connection with
the
transactions contemplated hereby have been duly executed and
delivered
by Seller, constitute the valid and binding obligations of Seller,
and
are enforceable in accordance with their respective terms. The
execution, delivery and performance of this Agreement and each of
the
Ancillary Agreements entered into in connection with the
transactions
contemplated hereby by Seller do not and will not violate, conflict
with, result in a breach of or constitute a default under or result
in
the creation of any Lien under (a) the Memorandum or Articles of
Association of the Seller, as amended to date, (b) any agreement,
contract, license, instrument, lease or other obligation to which
the
Seller is a party or by which it is bound, (c) any judgment, order,
decree, ruling or injunction or (d) any statute, law, regulation or
rule of any Governmental Agency applicable to Seller or by which
any
of its properties or assets or business may be bound.
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8.3. CONSENTS AND APPROVALS. No registration or filings with,
notices to,
or consent, approval, permit, authorization or action of, any third
party (including any Governmental Agency or other Person) is
required
in connection with the execution and delivery by Seller of this
Agreement, the Ancillary Agreements or any other agreement,
document
and instrument to be executed and delivered by Seller pursuant
hereto
or in connection with the consummation of the transactions
contemplated hereby or thereby.
8.4. TAXES. There are no unpaid taxes, assessments or public
charges of any
type or nature whatsoever, due or payable to any state or local
government or agency (including, without limitation, any income,
social security, unemployment insurance, worker's compensation
premiums, withholding, sales, use, excise, franchise and other
taxes
and charges, any deposits required to be made with respect thereto,
and all penalties and interest charges thereon) which are or could
become a Lien or charge against or otherwise affect any of the
Purchased Assets.
8.5. LITIGATION. There are no actions, suits, proceedings,
citations of any
Governmental Authority, claims or investigations instituted and
pending, or threatened against or affecting the Seller and
involving
the Purchased Assets. There is no unsatisfied judgment against
Seller
which is or could become a Lien upon or affect the Purchased
Assets.
Seller has no knowledge of any litigation presently pending in a
court
or other proceeding or governmental action (including those of any
taxing authorities) nor has Seller received any service of process
for
any complaint, temporary restraining order or preliminary or
permanent
injunction or other notice whatsoever with respect thereto, that
could
prohibit or interfere with the conveyance by Seller to Buyer of the
Purchased Assets.
8.6. ABSENCE OF UNDISCLOSED LIABILITIES. To Seller's best
knowledge, Seller
has no liabilities, claims, or obligations of any nature, whether
accrued, absolute, contingent, anticipated, or otherwise, whether
due
or to become due, that Seller cannot pay when due.
8.7. ASSUMPTIONS OR GUARANTIES OF INDEBTEDNESS OF OTHER PERSONS.
Seller has
not assumed, guaranteed, endorsed or otherwise become directly or
contingently liable for (including, without limitation, liability
by
way of agreement, contingent or otherwise, to purchase, to provide
funds for payment, to supply funds to or otherwise to invest in the
debtor or otherwise to assure the creditor against loss) any
indebtedness of any other Person.
8.8. INTELLECTUAL PROPERTY
8.8.1. SCHEDULE 1.12 fully, completely and accurately reflects all
of
the Intellectual Property held by Seller on the date hereof, and
no Intellectual Property shall remain with Seller after the
Closing.
8.8.2. Seller is the true, lawful, and sole and exclusive owner of
all
of the Purchased Assets, and has valid and marketable title to
all of the Purchased Assets, free and clear of all Liens. Seller
has the absolute and unconditional right, power, authority and
capacity to sell, transfer, assign, convey and deliver the
Purchased Assets to Buyer free and clear of all Liens. The
Purchased Assets are delivered, sold, assigned and transferred to
Buyer free and clear of all Liens.
8.8.3. The Purchased Assets do not infringe, violate or conflict
with
any patent, copyright, trade secret or other Intellectual
Property of another Person.
8.8.4. No claims with respect to the Purchased Assets have been
asserted or are threatened by any Person, including without
limitation, (i) to the effect that the design, development,
manufacture, sale, licensing or use of the Purchased Assets or
any product as now used, sold or licensed or proposed for use,
sale or license by the Seller infringes any copyright, patent,
trade secret or other Intellectual Property right of any third
party, ((ii) challenging the ownership, validity or effectiveness
of any of the Purchased Assets, or (iii) that any Person other
than the Seller has any ownership or economic interest in any of
the Purchased Assets.
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8.8.5. There is no outstanding order, judgment, decree or
stipulation
binding on Seller, and Seller is not a party to or bound by any
agreement, restricting the transfer or sale of any of the
Purchased Assets or the use thereof by Buyer after the Closing.
8.8.6. To the best knowledge of Seller, there is no unauthorized
use,
infringement or misappropriation of any of the Purchased Assets
by any third party, including any employee, former employee,
consultant, distributor or customer of Seller.
8.8.7. There are no outstanding options, licenses, or agreements of
any kind relating to the Purchased Assets, nor is the Seller
bound by or a party to any options, licenses or agreements of any
kind with respect to any of the Purchased Assets or the
Intellectual Property therein. The Seller has not granted to or
assigned to any other Person any right to manufacture, have
manufactured, assemble or sell products or proposed products of
the Seller. Seller is not obligated, under contract or by law, to
pay any compensation to any third party in respect of the use,
transfer or sale of any portion of the Purchased Assets.
8.8.8. None of the former or present employees, consultants,
officers
or directors of Seller or any distributor, reseller or customer
of Seller, owns, directly or indirectly, or has any other right
or interest in, or claim to, in whole or in part, any of the
Purchased Assets.
8.8.9. At no time during the conception of or reduction of any of
the
Purchased Assets to practice was any developer, inventor or other
contributor to the Purchased Assets operating under any grants
from any Governmental Agency, performing research sponsored by
any Governmental Agency or private source or other obligation
with any third party that in each case could adversely affect
Seller's rights in the Purchased Assets.
8.8.10. Seller has taken security measures to protect the
confidentiality and value of all the Purchased Assets, which
measures are reasonable and customary in the industry in which
the Seller operates.
8.9. COMPLIANCE WITH LAWS. The Seller has all requisite material
licenses,
permits and certificates from state and local authorities necessary
to
own, use and sell the Purchased Assets. The Seller is not in
violation
of, and is not under investigation with respect to, and has not
been
threatened to be charged with or given notice of any violation of,
any
law, regulation or ordinance relating to the Purchased Assets.
8.10. CAPITALIZATION. The shareholders who executed the
shareholders
resolution delivered to Buyer at the Closing are the sole
shareholders
of the Seller, on a fully diluted basis. No other Person is
entitled
to any right to participate in any distribution of assets by the
Seller in the event of the liquidation or dissolution of Seller.
8.11. FINDERS. Seller has not retained any investment banker,
broker, or
finder in connection with the transactions contemplated by this
Agreement.
8.12. DISCLOSURE. Neither this Agreement nor any other agreement,
document,
certificate or written or oral statement furnished to Buyer or its
counsel by or on behalf of Seller in connection with the
transactions
contemplated hereby contains any untrue statement of a material
fact
or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. There is no
fact within the knowledge of Seller or any of its executive
officers
which has not been disclosed herein or in writing by them to Buyer
and
which has a Material Adverse Effect, or in the future in their
reasonable opinion may have a Material Adverse Effect on Buyer or
the
Purchased Assets.
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9.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warranties to Seller that:
9.1. ORGANIZATION AND EXISTENCE. It is a company duly incorporated,
validly
existing and in good standing under the laws of the British Virgin
Islands and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry
on
its business as now conducted.
9.2. CORPORATE AUTHORIZATION. The execution, delivery and
performance of
this Agreement and each of the Ancillary Agreements to which it is
a
party and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by all necessary
corporate action on its part. This Agreement and the Ancillary
Agreements to which it is a party have been duly executed and
delivered by it, constitute the valid and binding obligations of
it,
and are enforceable in accordance with their respective terms. The
execution, delivery and performance of this Agreement and the
Ancillary Agreements to which it is a party entered into in
connection
with the transactions contemplated hereby by it do not and will not
violate, conflict with, result in a breach of or constitute a
default
under or result in the creation of any Lien under (a) its
Memorandum
and Articles of Association, as currently in effect, (b) any
judgment,
order, decree, ruling or injunction or (c) any statute, law,
regulation or rule of any Governmental Agency applicable to it or
by
which any of its properties or assets or business may be bound.
9.3. CONSENTS AND APPROVALS. No registration or filings with,
notices to,
or consent, approval, permit, authorization or action of, any third
party (including any Governmental Agency or other Person) is
required
in connection with the execution and delivery by Buyer of this
Agreement, the Ancillary Agreements or any other agreement,
document
and instrument to be executed and delivered by Buyer pursuant
hereto
or in connection herewith.
9.4. DISCLOSURE OF INFORMATION. Without derogating from Seller's
representations and warranties in this Agreement, Buyer
acknowledges
that it has received all the information it considered necessary or
appropriate for deciding whether to purchase the Purchased Assets.
Buyer further represents that it has had an opportunity to ask
questions and receive answers from the Company regarding the
Purchased
Assets.
10.
POST CLOSING COVENANTS
10.1. NON-COMPETE; NON-SOLICITATION. Seller agrees that for a
period of
four (4) full years commencing from the Closing Date, neither it
nor
any of its Affiliates shall anywhere in the world: (i) participate,
assist or otherwise be directly or indirectly involved or
concerned,
financially or otherwise, as a member, director, consultant,
adviser,
contractor, principal, agent, manager, beneficiary, partner,
associate, trustee, financier or otherwise in any business or
activity
whose principal focus is on the development, marketing and sale or
license of software products or other products or services related
to
the Business, except activities in connection with the JV; (ii)
interfere or seek to interfere, directly or indirectly, with any
relationship between Buyer and any client, customer, employee or
supplier of the Business; or (iii) solicit for employment, or hire,
any employee or consultant of Buyer. If the foregoing provision
shall
be held, for any reason, illegal or unenforceable in any respect,
the
scope of such provision shall be deemed narrowed down so as to make
it
legal and enforceable under applicable law, and in any event, such
invalidity, illegality or unenforceability shall not affect any
other
provision of this Agreement. Seller acknowledges that Buyer may be
irreparably harmed by any breach of this Section and that there
would
be no adequate remedy at law or in damages to compensate Buyer for
any
such breach. Seller agrees that Buyer shall be entitled to
injunctive
relief requiring specific performance by Seller of this Section,
and
Seller consents to the entry thereof.
For the removal of doubt, nothing in this Agreement shall limit or
be
deemed to limit in any way, or create any restrictions on, Buyer's
full and complete discretion and freedom in using and utilizing the
Purchased Assets for any purpose, including for and in all
platforms,
products and markets, including without limitation the UK market.
- 9 -
10.2. LIABILITY TO CONTRACTORS. Buyer does not assume any
obligation of
Seller to any contractor which arose, or relates to any acts or
omissions which occurred, on or prior to the date any such Person
became a contractor of Buyer or its Affiliates, and Seller shall
remain solely and exclusively responsible and liable therefor. The
foregoing shall not derogate from any obligation of Buyer to Seller
under this Agreement, including pursuant to Section 10.3.
10.3. EMPLOYEES SERVICES. For a period of 18 months from the
Closing Date,
Buyer undertakes to make available to Seller or to Seller's
Affiliate
the services of the Employees, in accordance with the provisions of
Schedule 4. Seller shall reimburse Buyer the costs of such
services,
calculated for each Employee as the percentage of the work time
devoted by such Employee to the services each month, out of
