STOCK PURCHASE AGREEMENT
DATED AS OF September 27, 2006
BY AND BETWEEN
ARISTOCRAT INTERNATIONAL PTY. LIMITED
AND
CALEDONIA (PRIVATE) INVESTMENTS PTY LIMITED
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of this 27th
day of September, 2006, by ARISTOCRAT INTERNATIONAL PTY. LIMITED (ABN 46 000 148
158), a company organized under the laws of Australia ("Buyer"), and CALEDONIA
(PRIVATE) INVESTMENTS PTY LIMITED (ABN 58 003 977 115) a company organized under
the laws of Australia ("Shareholder"). Capitalized terms not otherwise defined
in the text of this Agreement shall have the meanings set forth in the Annexure
concerning definitions.
WHEREAS, Shareholder is the holder of shares in PokerTek, Inc. (the
"Company") (the "Company's Common Stock")
WHEREAS, Buyer desires to purchase and Shareholder desires to sell upon the
terms and conditions hereinafter set forth four hundred and ten thousand seven
hundred and forty five (410,745) shares of the Company's Common Stock (the
"Shares").
NOW, THEREFORE, for and in consideration of the premises and of the mutual
agreements, representations, warranties, provisions and covenants herein
contained, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1. GENERALLY. Subject to the terms and conditions set forth in this
Agreement, Buyer agrees to purchase and Shareholder agrees to sell,
convey, assign, transfer and deliver to Buyer the Shares for the
Purchase Price.
1.2. PURCHASE PRICE. The aggregate purchase price (the "Purchase Price")
for the Shares shall equal Four Million One Hundred Seven Thousand
Four Hundred and Fifty United States Dollars ($4,107,450 U.S.
Dollars).
1.3 PAYMENT OF THE PURCHASE PRICE. The Purchase Price shall be paid to the
Shareholder in cash (the "Cash Payment") by wire transfer of
immediately available funds to accounts designated by Shareholder.
ARTICLE II
CLOSING
2.1. CLOSING DATE. The closing of the purchase and sale provided for herein
(the "Closing") shall take place on or before 5:00 p.m., Nevada time,
on September 29, 2006 at the offices of the Buyer, or at such other
place, time or date as may hereafter be mutually agreed upon in
writing by the parties or as results from the provisions of this
Agreement (the "Closing Date").
2.2. ACTION BY BUYER. Subject to the terms and conditions herein contained,
on the Closing Date, Buyer shall deliver to Shareholder, among the
other deliveries required by this Agreement, in payment of the
Purchase Price for the Shares, the Cash Payment.
2.3. ACTION BY SHAREHOLDER. Subject to the terms and conditions herein
contained, on the Closing Date, Shareholder shall deliver to Buyer,
among the other deliveries required by this Agreement, stock
certificates representing the Shares, which certificates shall be
endorsed in blank or accompanied by stock powers endorsed in blank and
accompanied by the requisite stock transfer stamps (the "Stock Powers
and Company Certificates").
ARTICLE III
REPRESENTATIONS AS TO THE SHAREHOLDER
Shareholder hereby represents and warrants to Buyer that all of the following
representations and warranties are true and correct on the date hereof and as of
the Closing Date as though made on the Closing Date..
3.1. AUTHORIZATION. This Agreement has been duly executed and delivered by
Shareholder and constitutes the valid and binding obligation of
Shareholder, enforceable against Shareholder in accordance with its
terms. Shareholder has full corporate power, capacity and authority to
execute this Agreement, and all other agreements and documents
contemplated hereby.
3.2. ORGANIZATION, EXISTENCE AND GOOD STANDING OF THE SHAREHOLDER. The
Shareholder is a corporation duly organized, validly existing and in
good standing under the laws of the state of New South Wales,
Australia.
3.3. CAPITAL STOCK OF THE COMPANY. Shareholder owns the Shares free and
clear of any Liens. Shareholder is the lawful recorded and beneficial
owner of the Shares. Upon the delivery of the Shares to Buyer, Buyer
will acquire the beneficial and legal, valid, and indefeasible title
to such Shares, free and clear of all Liens and restrictions on
transfer except for restrictions on transfer pursuant to federal and
state securities laws.
3.4. INFORMATION DISCLOSURE. Shareholder acknowledges and agrees that Buyer
makes no representations or warranties with respect to the accuracy or
probability of success of any financial projections, pending
transactions or similar information in respect of the Company.
ARTICLE IV
REPRESENTATIONS OF BUYER
Buyer represents and warrants to Shareholder that all of the following
representations and warranties set forth in this Agreement are true and correct
at the time of the Closing.
4.1. DUE ORGANIZATION. Buyer is duly organized, validly existing and in
good standing under the laws of Australia, has the corporate power to
own its properties and to carry on its business as now being
conducted.
4.2. VALIDITY OF OBLIGATIONS. The execution and delivery of this Agreement
by Buyer and the performance by Buyer of the transactions contemplated
therein have been duly and validly authorized by the Board of
Directors of Buyer, and this Agreement has been duly and validly
authorized by all necessary corporate action, duly executed and
delivered at or prior to the Closing and shall be the legal, valid and
binding obligations of Buyer, enforceable against it in accordance
with its' terms.
4.3. AUTHORIZATION. The representatives of Buyer executing this Agreement
have the corporate authority to enter into and to bind Buyer to the
terms of this Agreement. Buyer has the full legal right, power and
authority to enter into this Agreement.
4.4. INVESTMENT REPRESENTATIONS.
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(a) Buyer is acquiring the Shares for investment for its own account
and not with a view to, or for resale in connection with, the
distribution thereof in contravention of securities laws.
(b) Buyer's knowledge and experience in financial and business
matters are such that it is capable of evaluating the merits and
risks of its acquisition of the Shares.
(c) Buyer's financial condition is such that it can afford to bear
the economic risk of holding the Shares for an indefinite period
of time and has adequate means for providing for its current
needs and contingencies and to suffer a complete loss of its
investment in the Shares.
(d) Buyer is an "accredited investor" as defined in Rule 501 under
the 1933 Act. Buyer has such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of purchasing the Shares.
(e) Buyer understands that (i) the Shares have not been registered
under the 1933 Act or other applicable securities laws, (ii) the
Shares may need to be held indefinitely, and the Buyer must
continue to bear the economic risk of the investment in the
Shares unless they are subsequently registered under the 1933 Act
or an exemption from such registration is available, (iii) when
and if the Shares may be disposed of without registration in
reliance on Rule 144 promulgated under the 1933 Act, such
disposition can be made only in limited amounts in accordance
with the terms and conditions of such Rule, and Buyer may have to
deliver an opinion of counsel to the Company reasonably
acceptable to the Company in form, substance and scope to the
effect that the Shares to be sold or transferred may be sold or
transferred under an exemption from such registration, and (iv)
if the Rule 144 exemption is not available, public sale without
registration will require compliance with an exemption under the
1933 Act.
(f) Buyer understands that the Shares are characterized as
"restricted securities" under the U.S. federal securities laws
inasmuch as they are being acquired from Shareholder in a
transaction not involving a public offering and that under such
laws and applicable regulations such securities may be resold
without registration under the 1933 Act only in certain limited
circumstances.
(g) Buyer understands that the Shares shall bear a restrictive legend
in accordance with the requirements of the 1933 Act.
ARTICLE V
CONDITIONS PRECEDENT TO CLOSING
5.1. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE. Buyer's
obligation to purchase the Shares pursuant to this Agreement and to
take the other actions required to be taken by Buyer at the Closing is
subject to the satisfaction, at or prior to the Closing, of each of
the following conditions (any of which may be waived by Buyer, in
whole or in part):
(a) ACCURACY OF REPRESENTATIONS. Each of Shareholder's
representations and warranties in this Agreement , were accurate
in all material respects as of the date of this Agreement, and
are accurate in all material respects as of the Closing Date as
if made on the Closing Date.
(b) SHAREHOLDER'S PERFORMANCE. All of the covenants and obligations
that Shareholder is required to perform or to comply with
pursuant to this Agreement at or prior to the Closing (considered
collectively), and each of these covenants and obligations
(considered individually), have been duly performed and complied
with in all material respects. Each document required to be
delivered pursuant to this Agreement and such other documents as
Buyer may reasonably request for the purpose of facilitating the
consummation or performance of this Agreement.
(c) CONSENTS. All consents, if any, required in connection with the
consummation of this Agreement have been obtained and are in full
force and effect.
(d) PROBITY CHECKS. The Regulatory and Compliance Committee of Buyer
and the executive management of Buyer shall be completely
satisfied, in their sole discretion, with the results of such
probity checks as Buyer, in its sole discretion, considers
necessary to satisfy Buyer that there is no derogatory
information in respect of Shareholder or the Company that will
jeopardize Buyer's operations or contemplated operations in the
eyes of any governmental or regulatory agency.
5.2. CONDITIONS PRECEDENT TO SHAREHOLDER'S OBLIGATION TO CLOSE.
Shareholder's obligation to sell the Shares and to take the other
actions required to be taken by Shareholder at the Closing is subject
to the satisfaction, at or prior to the Closing, of each of the
following conditions (any of which may be waived by Shareholder in
whole or in part):
(a) ACCURACY OF REPRESENTATIONS. Each of Buyer's representations and
warranties in this Agreement, was accurate in all material
respects as of the date of this Agreement and is accurate in all
material respects as of the Closing Date as if made on the
Closing Date.
(b) BUYER'S PERFORMANCE. All of the covenants and obligations that
Buyer is required to perform or to comply with pursuant to this
Agreement at or prior to the Closing, and each of these covenants
and obligations (considered individually), have been performed
and complied with in all material respects. Buyer has made the
closing deliveries pursuant to this Agreement and the cash
payment required to be made pursuant to this Agreement.
ARTICLE VI
CLOSING DELIVERIES BY BUYER
6.1. CLOSING DELIVERY BY BUYER. At or prior to the Closing, Buyer shall
deliver the following to Shareholder, (i) the Cash Payment, and (ii)
this Agreement executed by the Buyer.
ARTICLE VII
CLOSING DELIVERIES OF SHAREHOLDER
At or prior to the Closing, Shareholder shall deliver the following to
Buyer:
7.1. STOCK POWERS AND COMPANY CERTIFICATES. The Stock Powers and Company
Certificates.
7.2. CONSENTS AND APPROVALS. All materially necessary consents of and
filings with any Agency or any third party relating to the
consummation of the transactions contemplated herein.
ARTICLE VIII
INDEMNIFICATION
8.1. GENERAL INDEMNITY.
(a) Shareholder hereby agrees to defend, indemnify and hold harmless
Buyer and its directors, officers, employees, representatives,
agents and attorneys (each, an "Indemnified Party") from Buyer
Losses caused by, resulting from or arising out of:
(i) breaches of representations hereunder by Shareholder or
failure by Shareholder to perform or otherwise fulfill any
undertaking or other agreement or obligation hereunder, or
to perform its covenants set forth in this Agreement or in
any other agreement or document executed in connection with
the transactions contemplated hereby;
(ii) any and all actions, suits, proceedings, claims and demands
incident to any of the foregoing or such indemnification.
(b) Buyer agrees to defend, indemnify and hold harmless Shareholder
from Shareholder Losses caused by, resulting from or arising out
of:
(i) breaches of representations hereunder by Buyer or failure by
Buyer to perform or otherwise fulfill any undertaking or
other agreement or obligation hereunder; or to perform its'
covenants set forth in this Agreement or in any other
agreement or document executed in connection with the
transactions contemplated hereby; and
(ii) any and all actions, suits, proceedings, claims and demands
incident to any of the foregoing or such indemnification.
ARTICLE IX
GENERAL
9.1. PRESS RELEASES. Buyer shall be entitled to issue press releases or
make any public statements or filings with respect to the transactions
contemplated hereby, and Shareholder shall not issue any such press
release or otherwise make any such public statement, filing or other
communication without the prior consent of Buyer, except if such
disclosure is required by law, in which case the Shareholder shall
promptly provide Buyer with prior notice of such public statement,
filing or other communication. The parties understand and acknowledge
that Buyer, on one hand, and Shareholder together with other
shareholders of the Company who are selling shares to Buyer, will have
an obligation to make filings with the Securities and Exchange
Commission with respect to the transfer of the Shares.
9.2. SURVIVAL OF COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES.
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(a) COVENANTS AND AGREEMENTS. All covenants and agreements made
hereunder or pursuant hereto or in connection with the
transactions contemplated hereby shall survive the Closing and
shall continue in full force and effect thereafter according to
their terms without limit as to duration.
(b) REPRESENTATIONS AND WARRANTIES. All representations contained
herein shall survive the Closing and shall continue in full force
and effect thereafter for a period of one (1) year from the
Closing Date.
9.3. SUCCESSORS AND ASSIGNS. This Agreement and the rights of the parties
hereunder may not be assigned or transferred without the written
consent and shall be binding upon and shall inure to the benefit of
the parties hereto, and the successors of Buyer.
9.4. ENTIRE AGREEMENT. This Agreement (including the schedules, exhibits,
annexes and shareholder letter attached hereto) constitutes the entire
agreement and understanding among Shareholder and Buyer, and
supersedes any prior agreement and understanding relating to the
subject matter of this Agreement.
9.5. FURTHER ASSURANCES. The parties agree (a) to furnish upon request to
each other such further information, (b) to execute and deliver to
each other such other documents, and (c) to do such other acts and
things, all as the other party may reasonably request for the purpose
of carrying out the intent of this Agreement and the documents
referred to in this Agreement.
9.6. COUNTERPARTS. This Agreement may be executed simultaneously in
multiple counterparts, each of which shall be deemed an original and
all of which together shall constitute but one and the same
instrument.
9.7. BROKERS AND AGENTS. Each party represents and warrants that it
employed no broker or agent in connection with this transaction.
9.8. EXPENSES. Each party shall bear its own costs, fees and expenses in
connection with the preparation, negotiation, execution and
performance of this Agreement.
9.9. NOTICES. All notices of communication required or permitted hereunder
shall be in writing and may be given by (a) depositing the same in
United States mail, addressed to the party to be notified, postage
prepaid and registered or certified with return receipt requested, (b)
delivering the same in person to an officer or agent of such party or
(c) sending a facsimile of the same with electronic confirmation of
receipt.
(i) If to Buyer, addressed to: ARISTOCRAT INTERNATIONAL XXX.XXXXXXX
00 Xxxxxxxxxxx Xx.
Xxxx Xxxx, XXX 0000
Telephone 000 0000 0000
Fax 000 0000 0000
Attn: Xxxxx Xxxx Xxxx, Company Secretary
(ii) If to the Shareholder, addressed thereto at the address set forth
on the signature page.
9.10. GOVERNING LAW; CONSENT TO JURISDICTION This agreement shall be
construed in accordance with the laws of the state of Nevada. The
parties hereto expressly consent and agree that any dispute,
controversy, legal action or other proceeding that arises under,
results from, concerns or relates to this agreement may be brought in
the federal and state courts in and of the state of Nevada and
acknowledge that they will accept service of process by registered or
certified mail or the equivalent directed to their last known address
as determined by the other party in accordance with this agreement or
by whatever other means are permitted by such courts. The parties
hereto hereby acknowledge that said courts have jurisdiction over any
such dispute or controversy, and that they hereby waive any objection
to personal jurisdiction or venue in these courts or that such courts
are an inconvenient forum.
9.11. EXERCISE OF RIGHTS AND REMEDIES. Except as otherwise provided herein,
no delay of or omission in the exercise of any right, power or remedy
accruing to any party as a result of any breach or default by any
other party under this Agreement shall impair any such right, power
or remedy, nor shall it be construed as a waiver of or acquiescence
in any such breach or default, or of any similar breach or default
occurring later; nor shall any waiver of any single breach or default
be deemed a waiver of any other breach or default occurring before or
after that waiver.
9.12. REFORMATION AND SEVERABILITY. If any provision of this Agreement
shall be invalid, illegal or unenforceable, then it shall, to the
extent possible, be modified in such manner as to be valid, legal and
enforceable but so as to most nearly retain the intent of the
parties, and if such modification is not possible, then such
provision shall be severed from this Agreement, and in either case
the validity, legality and enforceability of the remaining provisions
of this Agreement shall not in any way be affected or impaired
thereby.
9.13. REMEDIES CUMULATIVE. No right, remedy or election given by any term
of this Agreement shall be deemed exclusive but each shall be
cumulative with all other rights, remedies and elections available at
law or in equity.
9.14. SPECIFIC PERFORMANCE; OTHER RIGHTS AND REMEDIES. Each party
recognizes and agrees that in the event the other party or parties
should refuse to perform any of its or their obligations under this
Agreement, the remedy at law would be inadequate and agrees that for
breach of such provisions, each party shall, in addition to such
other remedies as may be available to it at law or in equity, be
entitled to seek injunctive relief and to enforce its rights by an
action for specific performance to the extent permitted by applicable
law. Each party hereby waives any requirement for security or the
posting of any bond or other surety in connection with any temporary
or permanent award of injunctive, mandatory or other equitable
relief.
9.15. CAPTIONS. The headings of this Agreement are inserted for convenience
only, shall not constitute a part of this Agreement or be used to
construe or interpret any provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BUYER:
ARISTOCRAT INTERNATIONAL PTY. LIMITED
By: /s/ Xxxxx Xxxx Xxxx
-------------------
Name: Xxxxx Xxxx Xxxx
Title: Company Secretary
SHAREHOLDER:
CALEDONIA (PRIVATE) INVESTMENTS PTY LIMITED
By: /s/ Xxxxxxx Xxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxx Xxxxxxx
Title: Director
Address: Xxxxx 00, Xxxx Xxxxxx Xxxxx
0 Xxxxxx Xxxxxx, Xxxxxx, XXX, 0000
telephone: (00) 0000 0000
fax: (00) 0000 0000
xxxxxxxx@xxxxxxxxx.xxx.xx
ANNEX I-DEFINITIONS
DEFINITIONS. In this Agreement, the following terms shall have the meanings
set forth below unless the context requires otherwise:
"1933 ACT" means the Securities Act of 1933, as amended.
"APPLICABLE LAW" means, with respect to any Person, property, transaction,
event or other matter, any Law relating or applicable to such Person, property,
transaction, event or other matter. Applicable Law also includes, where
appropriate, any interpretation of the Law (or any part) by any Person having
jurisdiction over it, or charged with its administration or interpretation.
"BUYER LOSSES" means all damages (including, without limitation, amounts
paid in settlement with the Shareholder's consent, which consent may not be
unreasonably withheld), losses, obligations, liabilities, claims, deficiencies,
costs and expenses (including, without limitation, reasonable attorneys' fees),
penalties, fines, interest and monetary sanctions, including, without
limitation, reasonable attorneys' fees and costs incurred to comply with
injunctions and other court orders, and other costs and expenses incident to any
suit, action, investigation, claim or proceeding or to establish or enforce the
rights of Buyer or such other persons to indemnification hereunder.
"CASH PAYMENT" has the meaning given in Section 1.3
"CLOSING" has the meaning given in Section 2.1.
"CLOSING DATE" has the meaning given in Section 2.1.
"COMPANY COMMON STOCK" has the meaning given in the Recitals.
"LAW" means any law, including common law, rule, statute, regulation,
order, judgment, decree, treaty or other requirement having the force of law.
"LIEN" means any lien, mortgage, charge, hypothecation, pledge, security
interest, prior assignment, marital dissolution obligation, option, warrant,
lease, sublease, right to possession, encumbrance, claim, right or restriction
which affects, by way of a conflicting ownership interest or otherwise, the
right, title or interest in or to any particular property, but excluding any
contract or license rights disclosed hereunder.
"PERSON" is to be broadly interpreted and includes an individual, a
corporation, a limited liability company, a partnership, a trust, an
unincorporated organization, the government of a country or any political
subdivision thereof, or any agency or department of any such government, and the
executors, administrators or other legal representatives of an individual in
such capacity.
"SHAREHOLDER LOSSES" means all damages (including, without limitation,
amounts paid in settlement with Buyer's consent, which consent may not be
unreasonably withheld), losses, obligations, liabilities, claims, deficiencies,
costs and expenses (including, without limitation, reasonable attorneys' fees),
penalties, fines, interest and monetary sanctions, including, without
limitation, reasonable attorneys' fees and costs incurred to comply with
injunctions and other court orders, and other costs and expenses incident to any
suit, action, investigation, claim or proceeding or to establish or enforce the
rights the Shareholders or such other persons entitled to indemnification
hereunder.
"SHARES" has the meaning given in the Recitals.
"STOCK POWERS AND COMPANY CERTIFICATES" has the meaning given in Section
2.3.
