SHARE PURCHASE AGREEMENT
Between
ROO
GROUP, INC.
and
_________________
THIS
AGREEMENT
is dated
this 30th
of April
2008
PARTIES
|
(1)
|
______________,
of
37 ____________________ (hereinafter “Vendor”);
|
|
(2)
|
ROO
GROUP INC.,
a
Delaware USA corporation duly incorporated under the laws of Delaware,
USA
and having its principal place of business at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, 00000 XXX, or such other of its Affiliates from
time to
time as it may nominate pursuant to Clause 11.2 (the “Purchaser”)
|
BACKGROUND
|
(A)
|
Vendor
is the legal and beneficial owner of 37 Shares (collectively the
“Sale
Shares”)
in Sputnik Agency Pty Ltd, a company duly organized under the laws
of
Australia having a registered address at 'Xxxxxxxxxxx Perlen', level
2,
200 Lygon Street, Carlton Victoria, Australia 3181 (the Company).
|
|
(B)
|
The
Vendor has agreed to sell the Sale Shares to the Purchaser and the
Purchaser has agreed to purchase the Sale Shares for the Purchase
Price
and upon and subject to the terms and conditions of this
Agreement.
|
IT
IS
AGREED AS FOLLOWS:
1. DEFINITIONS
AND INTERPRETATION
|
1.1
|
In
this Agreement the following words and expressions have the meanings
set
opposite them:
|
Affiliate:
in
relation to any body corporate, any holding company or subsidiary of such body
corporate or any subsidiary of a holding company of such body corporate;
Agreement:
this
agreement including its recitals and the schedules and any ancillary agreement
referred to herein forming part of the total agreement and understanding;
Business:
the
business of the Company as conducted at the date hereof;
Business
Day:
a day
(other than a Saturday or Sunday) when banks are open for business in Melbourne,
Australia;
Claim:
any
claim by the Purchaser arising under the Warranties;
Claim
Notice:
as
defined in Schedule 3, Paragraph 2(A);
Completion:
completion of the sale and transfer of the Sale Shares pursuant to this
Agreement;
Completion
Date:
means
May 5, 2008 or any earlier date agreed by the Parties upon which Completion
takes place;
Disclosed:
fully
and fairly disclosed to the Purchaser expressly for the purposes of this
Agreement;
Earn-Out
Payment: the
earn-out payment obligation of the Purchaser against its existing fifty-one
(51%) shareholding in the Company payable to the Shareholders of the Company;
Escrow
Account means
an
Escrow account to be held by the Escrow Agent;
Escrow
Agent
means
Xxxxxxx Xxxx (NSW) Pty Ltd;
Escrow
Deed means
the
deed of escrow to be entered into by the Vendor, the Purchaser and the Escrow
Agent, in such mutually agreed form, which will govern the terms of how the
Escrow Amount will be held and released (as referred to in clause
3.2);
Law
or Laws:
includes
all applicable legislation, statutes, directives, regulations, judgments,
decisions, decrees, orders, instruments, by-laws, and other legislative measures
or decisions having the force of law, treaties, conventions and other agreements
between states, or between states other supranational bodies, rules of common
law, customary law and equity and all civil and other codes as such are
implemented in Australia before or the date of this Agreement;
Purchase
Price:
the
sum
specified in clause 3.1;
Purchaser's
Group:
the
Purchaser and its Affiliates;
Purchaser's
Lawyers:
Motei
& Associates of X.X. Xxx 000000, Xxxxx, Xxxxxx Xxxx Xxxxxxxx and Xxxxx
Xxxxxxx & Paisley of Xxxxx 00, 0 Xxxx Xxxxxx, Xxxxxx, XXX 0000, Xxxxxxxxx;
Sale
Shares: means
37
Shares in the capital of the Company to which the Vendor is the legal and
beneficial owner;
Shares:
1,000
common shares representing 100% of the issued share capital of the Company;
Tax
Authority:
the
Australian Tax Office and any other governmental or other person whatsoever
competent to enforce or collect any Taxation whether in Australia or elsewhere;
Third
Party Claim:
as
defined in paragraph 3.1 of Schedule 3;
Total
Consideration means
the
payment of the Earn Out Payment and the Purchase Price;
Vendor's
Lawyers:
means
DLA Xxxxxxxx Xxx, of 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx,
Xxxxxxxxx;
Warranties:
the
warranties set out in Schedule 1;
"In
the agreed terms" or "in the agreed form":
in the
form agreed between the Vendors' Lawyers and the Purchaser’s Lawyers and signed
for the purposes of identification by or on behalf of each party.
|
1.2
|
The
table of contents and headings in this Agreement are inserted for
convenience only and shall not affect its construction.
|
|
1.3
|
Unless
the context otherwise requires words denoting the singular shall
include
the plural and vice versa, references to any gender shall include
all
other genders and references to persons shall include bodies corporate,
unincorporated associations and partnerships in each case whether
or not
having a separate legal personality.
|
|
1.4
|
References
to recitals, schedules and clauses are to recitals and schedules
to and
clauses of this Agreement unless otherwise specified and references
within
a schedule to paragraphs are to paragraphs of that schedule unless
otherwise specified.
|
|
1.5
|
References
in this Agreement to any statute, statutory provision, or treaty
include a
reference to that statute, statutory provision, or treaty as operative
only at the date of this Agreement and include any order, regulation,
instrument or other subordinate legislation made under the relevant
statute, statutory provision, or treaty.
|
|
1.7
|
Any
reference to writing
or
written
includes faxes and any non-transitory form of visible reproduction
of
words (but not e-mail).
|
|
1.8
|
Any
agreement, covenant, representation, warranty, undertaking or liability
arising under this Agreement on the part of two or more persons shall
be
deemed to be made or given by such persons jointly and severally.
|
|
1.9
|
References
to times of the day are to Melbourne time and references to a day
are to a
period of 24 hours running from midnight on the previous day, unless
otherwise noted.
|
| 2. |
SALE
AND PURCHASE
|
| 2.1 |
Obligation
to sell and purchase
|
Subject
to the terms of this Agreement, the Vendor as legal and beneficial owner shall
sell and the Purchaser shall purchase the Sale Shares free from all charges,
liens, encumbrances, equities and claims whatsoever and together with all rights
attaching to them at the date of this Agreement.
| 3. |
CONSIDERATION
|
|
3.1
|
The
Earn-Out Payment and Purchase Price of the Sale Shares shall
be:
|
|
(a)
|
Subject
to 3.2, a cash Earn-Out Payment, which, subject to clause 3.1(b)
and all
other terms of this agreement, shall be full and final settlement
by
Purchaser for any and all such entitlements due the Vendor, at Completion
in the amount of US$182,572.00.
|
|
(b)
|
The
sum of US$46,800 (the “Cash Consideration”) payable to Vendor for the
Vendor Sale Shares at Completion.
|
| 3.2 |
Escrow
|
An
escrow
of US$13,692.90
(7.5% of the aggregate Earn-Out Payment) (the “Escrow Amount”) shall be held in
the Escrow Account under the terms of the Escrow Deed for the purpose of
indemnifying the Purchaser for any breach of the Warranties set out in Schedule
2 after Completion. The Escrow Amount shall be held for no more than six (6)
months after Completion, at which time said amounts shall be released to the
Vendor, provided there are no liabilities arising out of the
Warranties.
| 4. |
COMPLETION
|
| 4.1 |
Time
and location
|
Completion
shall take place at the offices of the Company on the Completion Date or any
earlier date agreed by the parties at 4:00pm local time in Melbourne.
| 4.2 |
Vendors'
obligations
|
The
Vendor shall on the Completion Date deliver to the Purchaser each of the
documents listed in Schedule 2.
| 4.3 |
Purchaser's
obligations
|
The
Purchaser shall on the Completion Date pay the Earn-Out Payment and the Purchase
Price less the escrow amount, by way of irrevocable electronic transfer for
same
day value before 14.00 hours on the Completion Date to the following
account :
Bank:
Westpac Banking Corporation
Account
number: 732000 791117
Address:
Sydney Office, 000 Xxxxxx Xxxxxx, Xxxxxx
Swift
Code: XXXXXX0X
| 4.4 |
No
acts or omissions contrary to Warranties
|
The
Vendor shall not undertake any act or omission before Completion which would
constitute a breach of any of the Warranties if they were given at any and
all
times from the date hereof down to Completion or which would make any of the
Warranties inaccurate or misleading if they were so given.
| 4.5 |
Failure
to complete
|
If
in any
material respect the obligations of the Vendor or Purchaser are not complied
with on the date for Completion set by clause 4.1 the party not in default
may:
|
(a)
|
defer
Completion to a date not more than 30 days after the date set by
clause 4.1 (and so that the provisions of this clause 4.5, apart
from this clause 4.5 (a), shall apply to Completion as so deferred);
or
|
|
(b)
|
proceed
to Completion so far as practicable (without prejudice to its rights
hereunder); or
|
|
(c)
|
rescind
this Agreement, provided the party not in default has given the other
party sufficient opportunity to remedy its breach
.
|
|
4.6
|
Without
prejudice to clause 5.4, the Vendor shall forthwith disclose in
writing to the Purchaser any matter or thing which may arise and
become
known to the Vendor after the date hereof and before Completion which
is
inconsistent with any of the Warranties or which might make any of
them
inaccurate or misleading if they were given at any and all times
from the
date hereof down to Completion or which is a breach of clause 4.4or
which is material to be known to a purchaser for value of the Sale
Shares.
|
|
4.7
|
At
any time prior to or at Completion, the Purchaser becomes aware (whether
or not as a result of any disclosure by the Vendor under clause 4.6)
of any matter or circumstance which constitutes a material breach
of any
of the Warranties and if such matter or circumstance is reasonably
likely
to have a material adverse effect the Purchaser shall be entitled to
terminate this Agreement by written notice ("Notice") to the Vendor
(such
Notice to specify that it constitutes Notice pursuant to this Clause
and
giving such reasonable particulars as are available to the Purchaser
of
the matter or circumstance giving rise to service of such Notice);
and for
the purposes of this clause, a matter or circumstance shall be considered
to be reasonably likely to have a material adverse effect if as a
result
of such matter or circumstance it is reasonably anticipated that
the
aggregate turnover or profits of the Company will be at least 20
(twenty)
per cent lower for the current calendar year than would otherwise
have
been the case had that matter or circumstance not have existed or
occurred.
|
|
4.8
|
Clause 4.7
shall not apply to such matter or circumstance referred to in 4.8
which
results from:
|
(a)
matters Disclosed;
|
(b)
|
changes
after the date of this Agreement in stock markets, interest rates,
exchange rates, commodity prices or other general economic conditions;
|
|
(c)
|
general
changes in the political climate which shall include for the avoidance
of
doubt, war and acts of terrorism;
|
|
(d)
|
changes
after the date of this Agreement in the Law or accounting practices;
or
|
|
(e)
|
an
event occurring after the date of this Agreement which is caused
by the
change of control resulting from this transaction.
|
| 5. |
| 5.1 |
The
Vendor warrants to the Purchaser that each of the Warranties as set
forth
in Schedule 1 is true and accurate and the Vendor acknowledges that
the Purchaser is entering into the Agreement in reliance upon each
of the
Warranties each of which is given on the basis that it is repeated
at all
times up to and including Completion.
|
| 5.2 |
The
Warranties and any other representation, indemnity or undertaking
contained hereinare given subject to any exceptions, qualifications
or
reservations disclosed or expressly provided for under this Agreement.
|
| 5.3 |
Warranties
to be independent. Each of the Warranties shall be separate and
independent and, save as expressly provided, shall not be limited
by
reference to any other Warranty or anything in this Agreement.
|
| 5.4 |
Where
any of the Warranties is made or given so
far as the Vendor is aware or to the best of the Vendor's knowledge,
information and belief
or
any similar expression, such Warranty shall be deemed to be made
on the
basis of actual and constructive knowledge of the
Vendor.
|
| 6. |
LIMITATION
OF VENDOR'S LIABILITY
|
| 6.1 |
No
liability shall accrue hereunder under the Warranties in relation
to
matters Disclosed.
|
| 6.2 |
The
liability of the Vendor hereunder shall be limited as provided in
Schedule 3.
|
| 7. |
PROTECTION
OF GOODWILL AND TRADE SECRETS
|
| 7.1 |
Save
as specifically provided herein, Vendor undertakes that it shall
not and
shall procure that the Vendor's Group shall not whether personally
or by
its officers, employees or agents do any of the following:
|
|
(a)
|
disclose
to any other person within three (3) years after Completion (or in
the
case of Technical Know How, at any time within ten years after Completion)
at any time any information of a secret or confidential nature relating
exclusively or primarily to the Business ("Confidential Information")
or
any Technical Know How except:
|
| (i) |
to
the extent that the Confidential Information or Technical Know How
has
entered the public domain otherwise than by reason of the unauthorised
act
or default of the Vendor or the Vendor's Group;
|
|
(ii)
|
information
which it subsequently acquires from a third party lawfully and not
under a
duty of confidentiality;
|
|
(iii)
|
in
so far as may be required by law or by any regulatory authority;
|
|
(iv)
|
any
information which the Vendor or Vendor's Group independently develops
without using the Confidential Information; and
|
|
(v)
|
any
Confidential Information or Technical Know How.
|
(b)
within one year after Completion, solicit or entice away from the employment
of
the Company or the Purchaser, including Purchaser’s operating subsidiary Reality
Group Pty Ltd., any person who is at Completion a senior Employee of the Company
or the Purchaser, including Purchaser’s operating subsidiary Reality Group Pty
Ltd.
(c)
within six months after Completion, solicit or entice away from the employment
of the Company or the Purchaser, including Purchaser’s operating subsidiary
Reality Group Pty Ltd., any person who is at Completion an Employee of the
Company or the Purchaser, including Purchaser’s operating subsidiary Reality
Group Pty Ltd., save always that this paragraph c shall not apply in the event
that any employee responds to an advertisement placed by the Vendor or any
member of the Vendor's Group.
| 7.2 |
Vendor
shall procure that the obligations set out in this Clause 7 be
binding on the Vendor's Group successors in title.
|
| 7. |
OBLIGATIONS
OF THE PURCHASER
|
| 7.1 |
The
Purchaser warrants to the Vendor that it is not aware of any circumstance
or fact which to its knowledge would enable it to make a Claim at
the date
of Completion.
|
| 7.2 |
The
Purchaser warrants to the Vendor that:
|
|
(a)
|
it
is a corporation validly existing under the laws of Delaware with
the
requisite power and authority to enter into and perform, and has
taken all
necessary corporate action to authorise, the execution and performance
of,
its obligations under this Agreement and all documents in the agreed
form;
and
|
|
(b)
|
this
Agreement constitutes valid and binding obligations of the Purchaser.
|
| 8. |
DEBT
AND GUARANTEES
|
| 8.1 |
The
Purchaser undertakes with the Vendor to procure the release at Completion
(or as soon thereafter as is practicable) of the Vendor from all
guarantees, indemnities, bonds, letters of comfort, undertakings,
licenses
and other arrangements to which it is a party in respect of the Company
or
its business and to indemnify and to keep indemnified on a continuing
basis the Vendor from all claims, liabilities, costs and expenses
(including without limitation, legal and other professional advisers'
fees) arising in respect or by reason thereof.
|
| 8.2 |
Without
limiting the generality of Clause 8.1 and provided that the Purchaser
will not be obliged to provide greater security than the security
provided
by the Vendor, the Purchaser agrees, in discharging its obligations
under
that Clause, to offer any guarantees, indemnities or other undertakings
(as the case may be) or otherwise procure satisfactory security in
place
of the guarantees and indemnities and other arrangements referred
to in
Clause 8.1.
|
| 9. |
ANNOUNCEMENTS;
CONFIDENTIALTY
|
|
9.1
|
Except
in the course of its normal investor relations activities, provided
no
statements will be made to the detriment of the business of the Company
and the Vendor, no press conference, announcement or other communication
concerning this sale and purchase or any ancillary matter referred
to in
this Agreement, shall be made or despatched on or after the date
hereof
until Completion by the Vendor or the Purchaser or their respective
agents, employees or advisers to any third party without the prior
written
consent of the other parties save as may be required by any:
|
(a)
law;
(b)
contractual
arrangements existing at the date hereof; or
(c)
listing
authority or a stock exchange; or
| (d) |
any
applicable regulatory authority to which a party is subject where
such
requirement has the force of law.
|
provided
that in the event that any press conference announcement or other communication
is made pursuant to the requirements of (a) to (d) above, the party
required to make the same shall to the extent and in the manner reasonably
practicable in the circumstances, notify and consult with the other parties
hereto in advance as to the requirement to make such announcement press
conference or other communication.
|
9.2
|
The
Vendor understands and acknowledges that the Purchaser has entered
into
share purchase agreements with the remaining minority Shareholders
of the
Company, namely, Xxxxx Xxxxxxx, Stock and Stock Pty Ltd of Stock
Family
Trust No. 2, Truistic Pty Ltd of The Xxx Investment Trust, Xxxxx
Xxxxx,
Xxxx Xxxxxx of The Bollen Family Trust and Creative Pty Ltd of Cummins
Family Trust and undertakes to hold in strict confidence and not
disclose
to any third party, except for the remaining minority Shareholders
of the
Company, the terms and conditions of this Agreement.
|
| 10. |
FURTHER
ASSURANCE
|
Each
party shall, from time to time on being required to do so by the other party,
now or at any time in the future, do or procure the doing of all such acts
and/or execute or procure the execution of all such documents in a form
satisfactory to the other party as the other party may reasonably consider
necessary for giving full effect to this Agreement and securing to the other
party the full benefit of the rights, powers and remedies conferred upon the
other party in this Agreement.
| 11. |
ASSIGNMENT
|
| 11.1 |
Save
as provided in Sub-clauses 11.2 a party may not assign, transfer,
charge
or deal in any other manner with this Agreement or any of its rights
under
it, nor purport to do any of the same, nor sub-contract any or all
of its
obligations under this Agreement without having obtained the prior
written
consent of the other party.
|
| 11.2 |
The
Purchaser shall be entitled to assign its rights under this Agreement
to
any member of the Purchaser's Group provided that:
|
| (a) |
the
Purchaser shall procure that any company to whom it assigns any of
its
rights under this Agreement shall assign such rights back to the
Purchaser
immediately prior to its ceasing to be a member of the Purchaser's
Group;
and
|
| (b) |
no
such assignment shall relieve the Purchaser of any of its obligations
under this Agreement.
|
| 12. |
ENTIRE
AGREEMENT: REMEDIES
|
|
12.1
|
The
Purchaser acknowledges that, in agreeing to enter into this Agreement
on
the terms set out herein, it is not relying on any representation,
warranty, promise, undertaking or other assurance except those expressly
set out in this Agreement.
|
|
12.2
|
The
Purchaser and Vendor mutually acknowledge that this Agreement and
the
Escrow Deed represent the entire agreement between the Purchaser
and
Vendor. This Agreement and the Escrow Deed shall supersede and render
null
and void any past agreements into which the Purchaser and Vendor
may have
entered as well as any past agreements relating to the Company into
which
the Vendor may have entered with any of the other Shareholders of
the
Company, including, but not limited
to:
|
| (a) |
the
Share Purchase Agreement dated October 28th,
2005 (the “Factory 212 Agreement”) whereby the Purchaser purchased 51% of
Factory 212;
|
| (b) |
The
Business Sale and Purchase Agreement executed in December 2006 by
Sputnick
Agency Ptd Ltd, Factory 212 Pty Ltd, the Purchaser, Truistic Pty
Ltd,
Xxxxxxx Xxxxxx, Xxxxx Xxxxxxx and Xxxxx Xxxxx;
and
|
| (c) |
the
Shareholders Agreement executed in December 2006 by Vendor and the
other
Shareholders of the Company.
|
|
12.3
|
Without
prejudice to Clause 12.1, save as set out in this Agreement or the
Escrow Deed, no representation or warranties or other assurances
are given
by the Vendor or any of the Vendor's respective advisers in respect
of the
Company, the Business or any information supplied to the Purchaser
in the
course of negotiations and the Purchaser acknowledges that it has
not
relied on any representations or warranties or information contained
in
any other written or oral information supplied by or on behalf of
the
Vendor or the Vendor's respective advisers or made or supplied in
connection with the negotiations of the sale and purchase under this
Agreement.
|
| 13. |
WAIVER
AND VARIATION
|
| 13.1 |
No
waiver by omission, delay or partial exercise
|
No
omission by either party to exercise or delay in exercising any right, power
or
remedy provided by law or under this Agreement shall constitute a waiver of
such
right, power or remedy or any other right, power or remedy or impair such right,
power or remedy. No single or partial exercise of any such right, power or
remedy shall preclude or impair any other or further exercise thereof or the
exercise of any other right, power or remedy provided by law or under this
Agreement.
| 13.2 |
Variations
to be in writing
|
No
variation to this Agreement shall be of any effect unless it is agreed in
writing and signed by or on behalf of each party.
| 13.3 |
Time
of the essence
|
Notwithstanding
any other provisions and particularly sub-Clause 13.1 above, time shall be
of the essence of this Agreement both as regards dates, times and periods
mentioned and as regards any dates, times and periods that may be substituted
for them in accordance with this Agreement or by agreement in writing between
the parties.
| 14. |
COSTS
AND EXPENSES
|
| 14.1 |
Payment
of costs
|
Save
as
otherwise stated in this Agreement, each party shall pay its own costs and
expenses in relation to the negotiation, preparation, execution and carrying
into effect of this Agreement and other agreements forming part of the
transaction of the sale and purchase hereunder.
|
14.2
|
For
the avoidance of doubt, the Purchaser shall be responsible for any
stamp
duty payable in connection with the transfer of the Sale Shares.
|
| 15. |
NOTICES
|
| 15.1 |
Form
of notices
|
Any
communication to be given in connection with the matters contemplated by this
Agreement shall, except where expressly provided otherwise, be in writing and
shall either be delivered by hand or sent by first class pre-paid post or
facsimile transmission. Delivery by courier shall be regarded as delivery by
hand.
| 15.2 |
Address
and facsimile
|
Such
communication shall be sent to the address of the relevant party referred to
in
this Agreement or the facsimile number set out below or to such other address
or
facsimile number as may be communicated to the other party in accordance with
this clause. Each communication shall be marked for the attention of the
relevant person.
Vendor:
Xxx
Xxxxxxxx, 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx, XXX Xxxxxxxxx 0000
With
Copy
to:
Purchaser:
Kaleil Xxxxx Tuzman, Chairman & CEO
With
Copy
to: Xxxxx Xxxxx, Chief Financial Officer
| 15.3 |
Deemed
time of service
|
A
communication shall be deemed to have been served:
|
(a)
|
if
delivered by hand at the address referred to in Clause 15.2, at the
time of delivery;
|
|
(b)
|
if
sent by first class pre-paid post to the address referred to in
Clause 15.2, at the expiration of two clear days after the time of
posting; and
|
|
(c)
|
if
sent by facsimile to the number referred to in Clause 15.2, at the
time of completion of transmission by the sender.
|
If
a
communication would otherwise be deemed to have been delivered outside normal
business hours (being 9:30 a.m. to 5:30 p.m. on a Business Day) in the
time zone of the territory of the recipient under the preceding provisions
of
this sub-clause, it shall be deemed to have been delivered at the next opening
of business in the territory of the recipient.
| 15.4 |
Proof
of service
|
In
proving service of the communication, it shall be sufficient to show that
delivery by hand was made or that the envelope containing the communication
was
properly addressed and posted as a first class pre-paid letter or that the
facsimile was despatched and a confirmatory transmission report received.
| 15.5 |
Change
of details
|
A
party
may notify the other party or parties to this agreement of a change to its
name,
relevant person, address or facsimile number for the purposes of
Clause 15.1 PROVIDED THAT such notification shall only be effective on:
| (a) |
the
date specified in the notification as the date on which the change
is to
take place; or
|
| (b) |
if
no date is specified or the date specified is less than five clear
Business Days after the date on which notice is deemed to have been
served, the date falling five clear Business Days after notice of
any such
change is deemed to have been given.
|
| 16. |
COUNTERPARTS
|
| 16.1 |
Execution
in counterparts
|
This
Agreement may be executed in any number of counterparts and by the parties
on
different counterparts, but shall not be effective until each party has executed
at least one counterpart.
| 16.2 |
One
agreement
|
Each
counterpart shall constitute an original of this Agreement but all the
counterparts shall together constitute one and the same Agreement.
| 17. |
INVALIDITY
|
|
|
Each
of the provisions of this Agreement is severable. If any such provision
is
or becomes illegal, invalid or unenforceable in any respect under
the law
of any jurisdiction, the legality, validity or enforceability in
that
jurisdiction of the remaining provisions of this Agreement shall
not in
any way be affected or impaired thereby.
|
| 18. |
AGREEMENT
TO CONTINUE IN FULL FORCE AND EFFECT
|
|
|
This
Agreement shall, to the extent that it remains to be performed, continue
in full force and effect notwithstanding Completion.
|
| 19. |
THIRD
PARTY RIGHTS
|
|
Nothing
in this Agreement is intended to confer on any person not a party
to this
agreement any right to enforce any term of this agreement.
|
| 20. |
GOVERNING
LAW AND JURISDICTION
|
| 20.1 |
This
agreement shall be governed in accordance with the laws of State
of
Victoria, Australia.
|
| 20.2 |
The
parties will attempt in good faith to negotiate a settlement to any
claim
or dispute between them arising out of or in connection with this
Agreement
|
|
20.3
|
The
parties hereby submit to the exclusive jurisdiction of the courts
of the
State of Victoria, Australia to settle any dispute which may arise
and or
in connection with this Agreement.
|
This
Agreement thus signed and agreed upon the 30th
of April
2008,
|
By:
Vendor
|
By:
ROO Group, Inc.
|
|
|
__________________________
|
_______________________________
|
|
|
_______________________
|
Kaleil
Xxxxx Xxxxxx, Chairman &
CEO
|
THE
WARRANTIES
The
Warranties set out below are subject to all matters Disclosed.
| 1. |
Capacity
|
The
Vendor has the requisite power and authority to enter into and perform its
obligations under this Agreement.
| 2. |
Valid
Obligations
|
This
Agreement constitutes valid and binding obligations of the Vendor.
| 3. |
Ownership
of the Sale Shares
|
|
3.1
|
The
Sale Shares constitute the issued shares held by the Vendor in the
capital
of the Company.
|
|
3.2
|
There
is no option, right of pre-emption or right to acquire, mortgage,
charge,
pledge, lien or other form of security or encumbrance on, over or
affecting any of the Sale Shares nor is there any commitment to give
or
create any of the foregoing.
|
|
3.3
|
The
Vendor is exclusively entitled to the benefit of, and to enjoy all
rights
attaching to, the Sale Shares and is entitled to transfer the full
legal
and beneficial ownership in the Sale Shares to the Purchaser on the
terms
set out in this Agreement.
|
|
3.4
|
There
is no dispute concerning the title of the Vendor to the Sale Shares
or its
ability to sell the same and no other person has claimed to have
title to
the same or to be entitled to any interest therein. The Vendor is
not
engaged in any litigation, arbitration or other proceedings in any
way
relating to its title to the Sale Shares, and the Company has not
received
any application for the rectification of its register of members.
To the
best of the knowledge, information and belief of the Vendor, there
are no
circumstances likely to give rise to any of the matters referred
to in
this paragraph.
|
| 4. |
Liabilities
owing to or by Vendor
|
There
is
not outstanding any indebtedness or other liability (actual or contingent)
owing
by the Company to the Vendor, nor is there any indebtedness owing to the Company
by the Vendor.
| 5. |
Consequence
of share acquisition by the Purchaser
|
|
5.1
|
To
the best of the knowledge, information and belief of the Vendor,
the sale
of the Sale Shares by the Vendor will not:
|
| (a) |
cause
the Company to lose the benefit of any material license, consent,
permit,
approval or authorization (public or private) or any right or privilege
it
presently enjoys or relieve any person of any obligation to the Company
(whether contractual or otherwise) or enable any person to determine
any
such obligation or any material contractual right or benefit now
enjoyed
by the Company or to exercise any right whether under an agreement
with
the Company or otherwise;
|
| (b) |
result
in a breach of, or constitute a default under any order, judgement
or
decree of Authority by which the Company is bound or subject; and
|
| (c) |
result
in a breach of, or constitute a default under the terms, conditions
or
provisions of any material agreement, understanding, arrangement
or
instrument (including, but not limited to, any of the Company's contracts)
|
5.2 The
Vendor has not been informed or is otherwise aware that any person who now
has
business dealings with the Company would or might cease to do so from and after
sale of the Sale Shares.
SCHEDULE 2
COMPLETION
On
Completion, the Vendor shall deliver to the Purchaser transfer of the Sale
Shares duly executed in favour of the Purchaser or its nominee(s) together
with
the relevant share certificates (or an express indemnity in the case of any
found to be missing).
LIMITATIONS
ON LIABILITY
1. Limitation
on Quantum and General
1.1 The
total
aggregate liability of the Vendor for any liability under this Agreement in
respect of the Warranties and/or claims in respect of Tax shall be equal to
the
amount of US$57,343.00, representing 25% of the Total Consideration.
1.2 The
Vendor shall only be liable for damages, whether in respect of a Claim arising
out of or caused by matters existing on or before the Completion Date and
relating to the period prior to the Completion Date.
1.3 Each
provision of this Schedule shall be read and construed without prejudice to
each
of the other provisions of this Schedule.
2. Time
Limits For Bringing Claims
2.1 Subject
to paragraph 5 no Claim shall be brought against the Vendor unless the
Purchaser shall give to the Vendor written notice of such claim specifying
such
reasonable details as are available to the Purchaser (the "Claim Notice") on
or
before the date falling 12 months after the date of this
Agreement.
3. Conduct
of Litigation
|
3.1
|
Upon
the Purchaser becoming aware of any assessment, claim, action or
demand
against it or any other matter likely to give rise to any Claim (the
"Third Party Claim"), the Purchaser shall:
|
|
(a)
|
as
soon as practicable notify the Vendor by written notice as soon as
it
appears to the Purchaser that any Third Party Claim received may
result in
a Claim;
|
|
(b)
|
subject
to the Vendor indemnifying the Purchaser against any liability, cost,
damage or expense which may be incurred in relation to the Third
Party
claim, at the request of the Vendor and in the Vendor's absolute
discretion allow the Vendor to take the sole conduct of such actions
as in
the Vendor's reasonably held opinion but taking into account the
legitimate business interest of the Purchaser the Vendor may deem
appropriate in connection with the Third Party claim in the name
of the
Purchaser or any relevant company and in that connection the Purchaser
shall give or cause to be given to the Vendor (provided it does not
cause
undue interference to the conduct of the Business) all such assistance
as
the Vendor may reasonably require in avoiding, disputing, resisting,
settling, compromising, defending or appealing any Third Party Claim
and
shall instruct such legal or other professional advisors as the Vendor
may
nominate to act on behalf of the Purchaser or any relevant company,
as
appropriate, to act in accordance with the Vendor's instruction;
and
|
|
(c)
|
make
no admission of liability, agreement, settlement or compromise with
any
third party in relation to any Third Party claim or adjudication
without
the prior written consent of the Vendor; (not to be unreasonably
withheld
or delayed).
|
| 3.2 |
In
connection with any such Third Party claim, the Vendor shall:
|
| (a) |
at
all times keep the Purchaser informed as to its intentions with regard
to
the Vendor's conduct and any material action the Vendor proposes
to take
in respect of the Third Party Claim in order to allow the Purchaser
sufficient time to consider the matter and consult with the Vendor
about
the Third Party Claim, and the Vendor shall take reasonable account
of any
proposals made by the Purchaser in connection with the Third Party
claim;
and
|
| (b) |
make
no admission of liability, agreement, settlement or compromise with
any
third party in relation to any Third Party Claim or adjudication
without
the prior written consent of the Purchaser (not to be unreasonably
withheld or delayed).
|
|
3.3
|
The
Vendor shall be entitled at any stage and at its absolute discretion
to
settle the Third Party Claim.
|
4. No
Liability if Loss is Otherwise Compensated For
|
4.1
|
To
the extent that any payment is made by the Vendor to the Purchaser
in
respect of any Claim and the Company subsequently obtains a deduction
for
corporation tax purposes in respect of the whole or part of the matter
to
which such Claim relates then, to the extent that the payment originally
made by the Vendor did not reflect the availability of such deduction,
the
Vendor shall be entitled to reimbursement from the Purchaser of the
amount
of corporation tax saved as a result of the whole or part of such
payment
being deductible for corporation tax purposes.
|
5. Recovery
from Insurers and Other Third Parties
|
5.1
|
If,
in respect of any matter which would give rise to a Claim, the Purchaser
or the Company is entitled to claim under any policy of insurance,
then no
such matter shall be the subject of a Claim unless and until the
Purchaser
or the Company shall have made a claim against the insurers and used
all
reasonable endeavours to pursue such claim and any Claim shall be
reduced
by the amount recovered under such policy provided that the time
limit in
paragraph 2 shall not expire until 18 months after the insurance
claim has been settled or determined.
|
|
5.2
|
Where
the Purchaser or the Company is at any time entitled to recover from
some
other person any sum in respect of any matter giving rise to a Claim
the
Purchaser shall, subject to the Vendor indemnifying the Purchaser
or the
relevant member of the Purchaser's Group against any cost, liability
or
expense in connection therewith, take all reasonable steps to enforce
such
recovery prior to taking action against the Vendor (other than to
notify
the Vendor of the Claim against the Vendor) and, in the event that
the
Purchaser or any member of the Purchaser's Group shall recover any
amount
from such other person, the amount of the Claim shall be reduced
by the
amount recovered provided that the Purchaser shall not be required
to
commence any legal proceedings or to take any action which would
be
materially prejudicial to the goodwill of the Business, provided
that the
time limit in paragraph 2 shall not expire until 18 months after
the claim against such other person has been settled or determined.
|
|
5.3
|
If
the Vendor pays at any time to the Purchaser an amount pursuant to
a Claim
and the Purchaser or the Company subsequently recovers from some
other
person any sum in respect of any matter giving rise to the Claim,
the
Purchaser, shall repay to the Vendor the lesser of (i) the amount
paid by the Vendor to the Purchaser plus interest; or (ii) the sum
including interest (if any) recovered from such other person.
|
|
5.4
|
For
the avoidance of doubt, references in this Paragraph 5 to amounts
recovered (and like expressions) are to the amounts so recovered
net of
the reasonable costs and expenses properly incurred in effecting
such
recovery.
|
6. Acts
of Purchaser
|
6.1
|
No
Claim shall lie against the Vendor to the extent that such claim
is
attributable to:
|
(a)
any
voluntary act, omission, transaction or arrangement carried out by the
Purchaser
or the Company on or after Completion which the Purchaser or the Company
was
aware or ought reasonably to have been aware would give rise to or increase
the
amount of a Claim; or
(b) any
admission of liability made in breach of the provisions of this Schedule after
the date of this Agreement by the Purchaser or the Company or on its behalf.
|
6.2
|
No
Claim shall lie against the Vendor to the extent that such Claim
is
attributable to any reorganization or change in ownership of the
Company
or its parent or of any assets of the Company after Completion or
change
in any accounting basis for valuing the Company's assets or any accounting
basis, method, policy or practice which is different from that adopted
or
used in the preparation of the Audited Accounts.
|
7. Retrospective
Legislation
The
Vendor shall not be liable for a breach of any Warranty or pursuant to or
arising under or in connection with this Agreement to the extent that liability
for such breach or under such indemnification occurs or is increased directly
or
indirectly as a result of any legislation not in force on or prior to the date
of this Agreement or as a result of the withdrawal of any extra-statutory
concession or other agreement or arrangement currently granted by or made with
any governmental authority or Tax Authority or as a result of any change after
the date of this Agreement of any generally accepted interpretation or
application of any legislation or in the enforcement policy or practice of
the
relevant authorities or as a result of the withdrawal of any extra-statutory
concession or any other formal agreement or arrangements with any Tax Authority
(whether or not having the force of law) currently granted by or made with
any
Tax Authority.
8. Rescission
Other
than in circumstances of fraud, the Purchaser shall not be entitled to rescind
or repudiate this Agreement (whether in respect of a breach of Warranties or
otherwise).
