EXHIBIT 10.1
INTELLECTUAL PROPERTY AND TECHNOLOGY PURCHASE AGREEMENT
This Intellectual Property and Technology Purchase Agreement dated as of
April 13, 2009 (the "Agreement") by and among Playtech Software Limited, a
company incorporated under the laws of the British Virgin Islands under number
________, the registered office of which is at Trident Chambers, PO Box 146,
Road Town, Tortola, British Virgin Islands ("Buyer") and RNG Gaming Ltd., a
company incorporated under the laws of Isle of Man, company number 117182C, with
its principal place of business at Burleigh Manor, Peel Road, Douglas, Isle of
Man, IM1 5EP ("Seller").
WHEREAS, Seller is engaged in developing a multiplayer tournament blackjack
software platform (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. "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.
1.4. "ESCROW AGENT" means Abramovich Trust Company Ltd., a company
incorporated under the laws of Israel
1.5. "GOVERNMENTAL AGENCY" means any local, regional, state, foreign or
other governmental agency, instrumentality, commission, authority,
board or body.
1.6. "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 non-patentable 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).
1.7. "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.
1.8. "MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, assets, operations, financial condition, results of
operations or prospects of a Person.
1.9. "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.
1.10. "PURCHASED ASSETS" means, collectively, all of the computer servers
and hardware owned by Seller and used by Seller for the Business and
all Intellectual Property owned by Seller and used in the Business on
the date hereof, and without limiting the generality of the aforesaid
- as described in SCHEDULE 1.10 hereto, and also including all of the
following that are owned by Seller and used in the Business: (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 transferable consents, licenses, marketing rights, grants,
permits, authorizations and approvals by any Governmental Agency or
any other Person, relating to such Intellectual Property. For the
avoidance of doubt, the Purchased Assets do not include the cage
software, which is only licensed by the Seller.
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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 of its 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; REVENUE SHARE
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 $250,000 (two hundred and fifty
thousand US dollars) (the "Purchase Price"). For the avoidance of
doubt, the Purchase Price, together with the revenue share amounts set
forth in Section 3.4 below, 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, the amount of $150,000 (one hundred and
fifty thousand US dollars) out of the Purchase Price (the "Closing
Amount") shall be deemed paid by Buyer to Seller at the Closing by
considering such amount as a down-payment made by Seller on behalf of
Win Gaming Media, Inc. ("WGMI") , Seller's Affiliate , against future
service's payment to be paid by WGMI to Buyer under that certain
Software License and Services Agreement dated August 6, 2008, and
setting off such amount from such service's payment when payable by
WGMI to Buyer. The remaining amount of $100,000 (one 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 EXHIBIT 3.2 (the "Escrow
Agreement"). It is clarified that the deemed down-payment by Seller on
behalf of Win Gaming Media, Inc., and the transfer of the Escrow
Amount to the Escrow Agent as described above, shall constitute
Buyer's full and complete obligation to pay the Purchase Price to
Seller under this Agreement.
3.3. The Escrow Amount shall, subject to the terms of the Escrow Agreement,
remain in escrow until the Buyer has confirmed that the software
platform included in the Purchased Assets has been integrated into and
modified to fit Buyer's systems (the "Escrow Period"). Buyer shall
make its reasonable commercial efforts to cause such integration and
modification as quickly as possible after the Closing (as defined
below). 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) 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.
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3.4. In addition to the Purchase Price described above, Buyer shall pay
Seller 3% (three percent) of Buyer's Blackjack Revenue (as defined
below) each year for the first 3 years, commencing on the Effective
Date (as defined below), and 2% (two percent) of Buyer's Blackjack
Revenue thereafter (the "Revenue Share Amounts") and without any time
limitation. Buyer shall transfer to the Escrow Agent the Revenue Share
Amounts in monthly installments, due and payable on the tenth business
day of each month with respect to revenues of the preceding month.
Seller shall be entitled to audit Buyer's relevant accounting records
in order to verify Buyer's Blackjack Revenue once in every 12-month
period, upon reasonable advance notice and subject to customary
non-disclosure undertakings. Without derogating from the above, Seller
shall also be entitled to a quarterly Sales Report (as defined below).
Buyer shall not be entitled to sell the Purchased Assets to any third
party who would not be bound by the above royalty obligations.
"Effective Date" means the date in which the Buyer launches full
commercial public service of the Black Jack games operated by the
Purchased Assets. Should the Buyer choose to launch the said service
with a free launch\trial period, the Effective Date shall mean the
date in which the Buyer has ended the launch\trial period and begun
providing a paid service.
"Blackjack Revenue" means the payments received by Buyer from Buyer's
customers (including licensees) in relation to Blackjack game operated
by the Purchased Assets. For the removal of doubt, any other games
operated by or otherwise related to the Purchased Assets shall not be
deemed Blackjack Revenue herein and shall not entitle Seller to any
Revenue Share Amounts or to any other payment or consideration.
"Sales Report" means a report that shall be given by Buyer to Seller,
on a quarterly basis, each report referring to the preceding quarter.
The Sales Report shall be given by and no later than one month after
the end of the relevant quarter. Each Report shall include all the
information regarding Blackjack games operated by the Purchased Asset,
and any information regarding Blackjack Revenue during the relevant
quarter.
3.5. 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 and (if applicable) remitted to the appropriate taxing
authority, 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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3.6. Seller shall be entitled to irrevocably instruct Buyer to make any
payment hereunder to WGMI or any other assignee.
4. 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:
4.1. Seller shall deliver to Buyer:
4.1.1. duly executed copies of the unanimous resolutions of its Board
of Directors and its shareholders, in the forms attached in
SCHEDULE 4.1.1A-B;
4.1.2. 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;
4.1.3. possession of all computer servers and hardware and any other
tangible assets included in the Purchased Assets;
4.1.4. 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
4.1.5. a compliance certificate in the form attached hereto as
SCHEDULE 4.1.5, executed by the Seller's Directors.
4.2. Buyer shall deliver to Seller:
4.2.1. a duly executed copy of resolutions of its Board of Directors,
in the forms attached in SCHEDULE 4.2.1; and
4.2.2. a compliance certificate in the form attached hereto as
SCHEDULE 4.2.2, executed by the Buyer's Directors.
4.3. Seller, Buyer and the Escrow Agent shall execute and deliver the
Escrow Agreement.
4.4. Buyer shall transfer the Closing Amount to Seller and the Escrow
Amount to the Escrow Agent, subject to applicable withholding
requirements.
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5. CONDITIONS TO CLOSING.
5.1. 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:
5.1.1. 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.
5.1.2. 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.
5.2. 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:
5.2.1. 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.
5.2.2. 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.
5.2.3. Buyer shall have received the closing documents listed in
Section 4 above duly signed, and any others that it may
reasonably request, all in form and substance reasonably
satisfactory to Buyer.
5.2.4. 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.
5.3. 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:
5.3.1. 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.
5.3.2. Seller shall have received the closing documents listed in
Section 4 above duly signed, and any other documents that are
reasonably required hereunder, all in form and substance
reasonably satisfactory to Seller.
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6. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that, except as specifically stated
in SCHEDULE 6 (the Schedule of Exceptions) attached hereto, on the Closing
Date:
6.1. CORPORATE EXISTENCE AND POWER. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of
the Isle of Man, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
6.2. 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.
6.3. 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.
6.4. 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.
6.5. 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.
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6.6. ABSENCE OF UNDISCLOSED LIABILITIES. Seller has no knowledge of any
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.
6.7. 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.
6.8. INTELLECTUAL PROPERTY
6.8.1. SCHEDULE 1.11 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.
6.8.2. 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.
6.8.3. To the best of the Seller's knowledge The Purchased Assets do
not infringe, violate or conflict with any patent, copyright,
trade secret or other Intellectual Property of another Person.
6.8.4. No claims with respect to the Purchased Assets have been
asserted or, to the knowledge of Seller, 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.
6.8.5. 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.
6.8.6. 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.
6.8.7. 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.
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6.8.8. 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. Each current and former employee of or
consultant to Seller has signed a proprietary information and
inventions assignment agreement protecting Seller's rights in the
Purchased Assets.
6.8.9. 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.
6.8.10. 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.
6.9. SOFTWARE SPECIFICATIONS AND PERFORMANCE. The software included in the
Purchased Assets complies in full and performs at all times, in all
material respects, with the software specifications and performance
criteria set out on SCHEDULE 6.9 attached hereto.
6.10. 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.
6.11. 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.
6.12. FINDERS. Seller has not retained any investment banker, broker, or
finder in connection with the transactions contemplated by this
Agreement.
6.13. 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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7. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warranties to Seller that:
7.1. 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.
7.2. 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.
7.3. DISCLOSURE OF INFORMATION7.4. Buyer acknowledges that it has received
all the information it considered necessary or appropriate for
deciding whether to purchase the Purchased Assets. The Buyer further
represents that it has had an opportunity to ask questions and receive
answers from the Company regarding the Purchased Assets. 7.5.
7.4. LICENSE BACK OPTION. In addition to the provisions above, Seller
(directly or through an Affiliate of Seller) shall have an option to
enter with Buyer into a Software License Agreement, by which Buyer
grants Seller (or its Affiliate), a non-exclusive license to use the
software platform included in the Purchased Assets, for the sole
purpose of providing a "Play For Fun" service, in consideration of a
revenue share payable to Buyer of fifteen percent (15%) and subject to
other customary terms and conditions. In addition, at Seller's
request, the parties will enter into good faith negotiations for a
license by Buyer to Seller to use any other multiplayer tournament
products developed by Buyer on the basis of the software platform
included in the Purchased Assets, if any, for "Play For Fun" service.
7.5. 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 with
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8. POST CLOSING COVENANTS
8.1. 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; (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. For
the avoidance of doubt, the above covenant shall not prevent Seller
and or its shareholders from engaging in any other multi-player games.
8.2. 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.
8.3. BANKRUPTCY EVENT. Following the Closing, Seller undertakes: not to
initiate a Bankruptcy Event; to notify Buyer immediately upon the
commencement of any Bankruptcy Event or any other event that could
lead to a Bankruptcy Event; and to take promptly, at its expense, all
measures as are required for preventing, discharging, terminating,
removing or achieving a stay of a Bankruptcy Event. In the event that
this Agreement or the transfer, assignment and sale of the Purchased
Assets to the Buyer shall nonetheless be terminated by a receiver,
liquidator, a competent court or any other Person, within the
framework of a Bankruptcy Event, then Buyer shall have a right to
receive back the Escrow Amount from the Escrow Agent.
9. CONFIDENTIAL INFORMATION
9.1. CONFIDENTIAL INFORMATION. Each party represents and warrants that it
will: (i) hold Confidential Information in confidence and protect the
Confidential Information to the same extent and by the same means it
uses to protect the confidentiality of its own proprietary or
confidential information that it does not wish to disclose and not
less than reasonable means; (ii) not make any use of the Confidential
Information, save as provided for under this Agreement; (iii) restrict
disclosure of Confidential Information solely to those of its
employees or consultants with a need to know, and will advise those of
its employees and consultants to whom the Confidential Information is
disclosed of their obligations under this Agreement with respect to
the Confidential Information and shall be responsible and liable for
any breach of confidentiality by such employees or consultants; (iv)
return all Confidential Information made available hereunder,
including copies thereof, to the disclosing party or will destroy the
same (as certified to the disclosing party) at the earlier of the (x)
first written request of the disclosing party; or (y) the termination
or expiration of this Agreement for any reason whatsoever.
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9.2. EXCLUSION. The obligations of each party under this Agreement will not
extend to any information that (i) becomes publicly known by
publication or otherwise ceases to be secret or confidential through
no act or omission of the receiving party; (ii) is acquired without a
confidentiality undertaking by either party from a third party which
was not, to the receiving party's best knowledge, under an obligation
to the disclosing party not to disclose such information; (iii) has
been approved for release by written authorization of the disclosing
party; or (iv) has been disclosed pursuant to a duty under applicable
law, provided however, that in such an event, as soon as practical
after receiving the order or requirement of a court, administrative
agency or other governmental body, the receiving party shall give the
disclosing party a written notice of such order or requirement and in
any event such notice shall be prior to disclosure of such
information.
10. ADDITIONAL COVENANTS OF PARTIES
10.1. EFFORTS; FURTHER ASSURANCES. Subject to the terms and conditions of
this Agreement, each party will use its commercially reasonable
efforts to take, or cause to be taken, all actions and to do, or cause
to be done, all things necessary or desirable under applicable laws
and regulations to consummate the transactions contemplated by this
Agreement, including without limitation, with respect to Seller,
filing of a report disclosing the content of this Agreement with the
U.S. Securities and Exchange Commission, in redacted form and without
disclosing the commercial terms hereof. Each party agrees to execute
and deliver such other documents, certificates, agreements and other
writings and to take such other actions as may be necessary or
desirable in order to consummate or implement expeditiously the
transactions contemplated by this Agreement and to vest in Buyer good
and marketable title to the Purchased Assets.
10.2. CERTAIN FILINGS. Seller shall inform and assist Buyer (a) in
determining whether any action by or in respect of, or filing with,
any Governmental Agency is required, or any actions, consents,
approvals or waivers are required to be obtained from parties to any
material contracts, in connection with the consummation of the
transactions contemplated by this Agreement and (b) in taking such
actions or making any such filings, furnishing information required in
connection therewith and seeking timely to obtain any such actions,
consents, approvals or waivers.
11. MISCELLANEOUS
11.1. ENTIRE AGREEMENT. This Agreement and the Ancillary Agreements
constitute the entire agreement between the parties with respect to
the subject matter hereof and thereof and supersede all prior
agreements, understandings and negotiations, both written and oral,
between the parties with respect to the subject matter hereof and
thereof. No representation, inducement, promise, understanding,
condition or warranty not set forth herein has been made or relied
upon by either party hereto. None of this Agreement and the Ancillary
Agreements, nor any provision hereof or thereof, is intended to confer
upon any Person other than the parties hereto any rights or remedies
hereunder.
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11.2. AMENDMENTS; NO WAIVERS. Any provisions of this Agreement may be
amended or waived if, and only if, such amendment or waiver is in
writing and signed by Buyer and Seller. No failure or delay by either
party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
11.3. REMEDIES. Each party hereto shall indemnify, defend and hold harmless
the other party from and against any direct losses, damages, claims,
fines, penalties and expenses (including reasonable attorney's fees)
that result from a party's breach of any representation or warranty
herein contained.
11.4. In addition, Win Gaming Media, Inc., will indemnify and hold harmless
Playtech, upon demand, from any and all direct and indirect claims ,
demands, liabilities, damages, costs and expenses (including attorneys
fees) that may be cause or incurred by Playtech or any of its
officers, employees, directors , affiliates or agents as a result of
(i) a breach or alleged breach of any representation, warranty or
undertaking of the Seller, and (ii) a claim by any third party
including without limitation Seller other shareholders that has an
actual or potential adverse effect on the full, complete and
unencumbered transfer of the full and exclusive ownership rights to
Playtech in and to the Purchased Assets at the Asset Purchase Closing
(all of the foregoing will be referred to herein as a "Claim"),
provided that Playtech gives WGMI written notice of any such Claim and
WGMI has the right to participate in the defense of any such Claim at
its expense. From the date of written notice from Playtech to WGMI of
any such Claim, Playtech will have the right to withhold the amount of
any defense costs from any payments due to the Seller under this
Agreement
11.5. EXPENSES. Each Party shall bear its own respective costs and expenses
related to this Agreement and the performance of its obligations
hereunder, including all of its respective tax consequences.
11.6. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that this
Agreement, including the representations and warranties herein, may
not be assigned by any party other than (i) to an Affiliate; or (ii)
to a successor in ownership of all or substantially all of the
relevant assets of the assigning party, without the prior written
consent of the other party, which consent may not be unreasonably
withheld. It is agreed between the parties that Seller may assign its
rights and obligations under this Agreement to WGMI by giving notice
to Buyer and without obtaining Buyer's consent.
11.7. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of England. All matters relating to the
validity, interpretation, implementation and enforcement of this
Agreement, and the right, duties and obligations of the parties
pursuant hereto, shall be submitted to a single agreed upon arbitrator
in London, England, who shall be trained as a solicitor or barrister
in England and conduct the proceedings in English. If the parties
should fail to agree on the selection of an arbitrator within 14 days
of the request for arbitration by any party, any party may apply to
the Chairman of the Bar of England and Wales to make the appointment.
The arbitrator shall conduct the proceedings in accordance with
English substantive law but shall not be bound by procedural or
evidentiary provisions of law. The aforesaid notwithstanding, in the
event of any emergency a party may apply to the competent court for
injunctive relief.
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11.8. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable, such invalidity or unenforceability shall not affect
the other provisions of this Agreement, and, to that extent, the
provisions of this Agreement are intended to be and shall be deemed
severable.
11.9. PUBLICITY. No party shall disclose or publish the existence of this
Agreement or any of its terms without the prior written consent of the
other party, which may be given in its sole discretion, except in
connection with disclosures required of public companies by applicable
securities laws, stock exchange regulations or otherwise.
11.10. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or
interpretation hereof.
11.11. NOTICES. All notices, requests and other communications to a party
hereunder shall be in writing and shall be sufficiently given if
delivered in person, sent by reputable express overnight courier
service, or transmitted by facsimile, and shall be given at the
addresses set forth above, or at such other address for a party as
shall be specified by like notice.
11.12. ADVISE OF LEGAL COUNSEL. Each party acknowledges and represents
that, in executing this Agreement, it has had the opportunity to seek
advice as to its legal rights from legal counsel and that the person
signing on its behalf has read and understood all of the terms and
provisions of this Agreement. This Agreement shall not be construed
against any party by reason of the drafting or preparation thereof.
11.13. COUNTERPARTS. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have set their hands, and duly
authorized this Agreement by their authorized officers as of the day and year
first above written.
/s/ Shimon Citron /s/ Haim Tabak
- --------------------------------
RNG GAMING LTD.
By: Shimon Citron & Haim Tabak
Title: Directors
/s/ Mor Weizer
- --------------------------------
PLAYTECH SOFTWARE LIMITED
By: Mor Weizer
Title: CEO
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We the undersigned, being the direct and indirect controlling shareholders of
Seller (as defined above), hereby acknowledge, agree and accept the terms of
this Agreement, and shall be unconditionally and irrevocably liable, jointly and
severally with Seller, for the representations and warranties given by Seller
herein and for the full performance of all of Seller's and Seller Affiliates'
undertakings and covenants under this Agreement, including without limitation
the full and complete sale and transfer of the Purchased Assets to Buyer, and
confidentiality and non-compete obligations.
/s/ Shimon Citron /s/ Haim Tabak /s/ Shimon Citron
- -------------------------------- ----------------------
Gaming Ventures PLC Win Gaming Media, Inc.
(an Isle of Man corporation) (a Nevada corporation)
By: Shimon Citron By: Shimon Citron
By: Haim Tabak
Title: Directors Title: CEO
* EXHIBITS AND SCHEDULES TO EXHIBIT 10.1 HAVE BEEN OMITTED AND WILL BE FILED
WITH THE SECURITIES AND EXHCNAGE COMMISSION UPON REQUEST.
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