PANMURE GORDON & CO ORDERLY MARKET AGREEMENT relating to shares in NetPlay TV PLC THIS AGREEMENT dated 2009 is made BETWEEN:- (1) WIN GAMING MEDIA, INC. a company registered under the laws of Delaware and whose principal place of business is at 103...
EXHIBIT 10.3
DATED 2009
WIN GAMING MEDIA, INC.
NETPLAY TV PLC
and
PANMURE XXXXXX & CO
ORDERLY MARKET AGREEMENT
relating to shares in NetPlay TV PLC
THIS AGREEMENT dated 2009 is made BETWEEN:- (1) WIN GAMING MEDIA, INC. a company registered under the laws of Delaware and whose principal place of business is at 000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, XXX (the "Beneficiary"); (2) NETPLAY TV PLC (CN 3954744) whose registered office is at 00 Xxxxxx Xxxxxx, Xxxxxxxxx XX0 0XX (the "Buyer"); and (3) PANMURE XXXXXX & CO of Moorgate Hall. 000 Xxxxxxxx, Xxxxxx XX0X 0XX (the "Escrow Agent"). BACKGROUND (A) The Buyer has entered into an agreement (the "Principal Agreement") of today's date with Two Way Media Limited and Two Way Gaming Limited relating to the sale and purchase of part of the business and assets of Two Way Gaming Limited. (B) The Beneficiary may become entitled pursuant to the Principal Agreement to ordinary shares of 5 xxxxx each in the capital of the Buyer ("Ordinary Shares"). (C) The Beneficiary and the Buyer have agreed that any Ordinary Shares issued to the Beneficiary in accordance with the Principal Agreement (the "Escrow Shares") shall be held in escrow subject to the terms set out in this Agreement. IT IS AGREED as follows:- 1. INTERPRETATION 1.1 In this Agreement the following expressions have the following meanings:- "Escrow Assets" all stocks, shares, cash, rights and other items held from time to time by the Escrow Agent pursuant to this Agreement including all property accruing or offered from time to time by way of redemption, bonus, exchange, conversion or otherwise in respect of and any proceeds received upon the sale of any of the Escrow Assets but not Interest; "Escrow Period" the period from the date of this Agreement to the first anniversary of the issue of the Escrow Shares; and "Interest" all interest dividends, distributions or payments of a revenue nature arising on or in respect of the Escrow Assets; 1.2 In this Agreement:- 1.2.1 the provisions governing the interpretation of the Principal Agreement apply to this Agreement; and 1.2.2 expressions defined in the Principal Agreement have the same meanings when used in this Agreement. 1
2. DELIVERY OF ESCROW SHARES
The Beneficiary directs the Buyer to issue any Escrow Shares to such
nominee account held by the Escrow Agent quoting the Beneficiary's name as
the Escrow Agent shall nominate.
3. UNDERTAKINGS
3.1 The Beneficiary undertakes to the Buyer that:-
3.1.1 any disposal during the Escrow Period of the legal or beneficial
ownership of or any other interest in any Escrow Shares shall be
effected with the consent of and through the Escrow Agent in such
orderly manner as the Escrow Agent shall reasonably require with
a view to the maintenance of an orderly market in the shares of
the Buyer; and
3.1.2 save as aforesaid, none of the Escrow Assets to which the
Beneficiary is beneficially entitled will be sold, mortgaged,
charged, assigned or otherwise made subject to any encumbrance,
equity or any other agreement save as provided in this Agreement.
3.2 The Escrow Agent will use reasonable endeavours to cooperate with
reasonable requests from the Beneficiary to assist in identifying
purchasers for the Escrow Shares.
4. BENEFICIAL OWNERSHIP OF THE ESCROW ASSETS
Subject to the provisions of this Agreement and the Principal Agreement,
beneficial ownership of the Escrow Assets shall be vested in the
Beneficiary absolutely. Legal title to any Escrow Assets held by the Escrow
Agent at the expiry of the Escrow Period shall be transferred to the
Beneficiary at which time the Buyer shall join with the Beneficiary in
taking all necessary steps to procure the release of any such Escrow Assets
to the Beneficiary.
5. APPOINTMENT AND DUTIES OF THE ESCROW AGENT
5.1 The Beneficiary appoints the Escrow Agent as its agent for custody of
and the application of the Escrow Assets in accordance with the
Principal Agreement and this Agreement and the Escrow Agent accepts
such appointment subject to the terms and conditions of this
Agreement.
5.2 The Escrow Agent shall have the powers and authority granted to and
conferred upon it by this Agreement and such further powers and
authority granted or conferred by the Beneficiary and the Buyer after
the date of this Agreement (or, after the end of the Escrow Period, by
the Beneficiary alone) as may be acceptable to the Escrow Agent.
5.3 The Escrow Agent acknowledges that all Escrow Assets which are or
shall be in its custody will be held by it as custodian only and the
Escrow Agent will not be entitled to and will not claim any lien,
other security interest or right of set off in relation to the Escrow
Assets.
5.4 The Escrow Agent shall only be entitled to deal with the Escrow Assets
as instructed by the Beneficiary in accordance with this Agreement.
The Escrow Agent shall be protected and shall incur no liability for
or in respect of any action taken, omitted or suffered in reliance
upon any written notice or instruction delivered in accordance with
the terms of this Agreement which is reasonably believed by it to be
genuine and to have been executed, delivered or sent by the
Beneficiary.
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5.5 To the extent that cash forms part of the Escrow Assets, the Escrow
Agent shall place the same on interest bearing deposit. Without
derogating from the above, the Escrow Agent shall transfer all cash
received from selling the Escrow Shares or other deposited cash, to
the Beneficiary as soon as practicable after receipt by the Escrow
Agent upon instructions from the Beneficiary.
5.6 The Escrow Agent shall keep accounts showing the Escrow Assets
beneficially owned by the Beneficiary and any Interest earned on them
which shall be available for inspection on reasonable notice by the
Beneficiary.
5.7 The Escrow Agent undertakes that as soon as reasonably practicable
following receipt by it of any notice in respect of any of the Escrow
Assets which is received by the Escrow Agent in its (or its nominee's)
capacity as the registered holder of the assets in question, it will
(at the Beneficiary's expense) send copies of such notice to the
Beneficiary.
5.8 As soon as practicable after the termination of the Escrow Period the
Escrow Agent shall transfer the remaining Escrow Assets, according to
the instructions received from the Beneficiary
6. RETIREMENT AND REMOVAL OF ESCROW AGENT
6.1 Subject to the remaining provisions of this clause:-
6.1.1 the Escrow Agent may resign its appointment under this Agreement
at any time by giving not less than 30 days' written notice to
that effect to the Buyer and the Beneficiary; and
6.1.2 the appointment of the Escrow Agent may be terminated by
delivery to the Escrow Agent of written notice signed by the
Buyer and the Beneficiary (or after the end of the Escrow Period,
by the Beneficiary alone) specifying such termination and the
date when it shall become effective.
6.2 Upon the effective date of resignation or termination of appointment
the Escrow Agent shall transfer all Escrow Assets to the new Escrow
Agent and execute appropriate instruments of transfer as necessary.
6.3 Any successor Escrow Agent appointed under this Agreement shall
execute, acknowledge and deliver to his predecessor and to the Buyer
and the Beneficiary an instrument accepting such appointment under
this Agreement and thereupon without any further act, deed or
conveyance shall become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of such predecessor with
like effect as if originally named as Escrow Agent under this
Agreement.
6.4 Notwithstanding the foregoing provisions of this clause, no
resignation by or termination of the appointment of the Escrow Agent
shall take effect until a new Escrow Agent acceptable to the Buyer and
the Beneficiary has been appointed on the terms of this Agreement.
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7. ESCROW AGENT'S FEES
The Buyer will be responsible for any fees payable to the Escrow Agent.
8. INTEREST AND CHARGES
8.1 Any reasonable banking or administrative charges and fees (other than
the Escrow Agent's fees) in connection with the maintenance of the
Escrow Assets and the creation and operation of the arrangements to be
effected under this Agreement, shall be deducted from the Escrow
Assets and any Interest earned on them.
8.2 Net Interest shall accrue for the benefit of the Beneficiary but shall
not (save as provided in this Agreement) form part of the Escrow
Assets. All such sums shall be paid to the Beneficiary as soon as
practicable after receipt by the Escrow Agent.
9. FURTHER ASSURANCE
The Buyer and the Beneficiary shall take all such steps as shall be
necessary from time to time to give effect to the terms of this Agreement.
10. EFFECT OF THIS AGREEMENT
This Agreement shall be binding on the personal representatives or
successors and assigns of the parties as the case may be.
11. NOTICES
The provisions relating to the service of notices contained in the
Principal Agreement shall apply in relation to this Agreement.
12. GOVERNING LAW, JURISDICTION AND SERVICE OF PROCESS
12.1 This Agreement is governed by and shall be construed in accordance
with the laws of England and Wales.
12.2 The Beneficiary irrevocably agrees that the courts of England and
Wales shall have non-exclusive jurisdiction to hear and determine any
suit, action or proceedings, and to settle any disputes, which may
arise out of or in connection with this Agreement or any documents
entered into in accordance with its provisions (in this clause,
"Proceedings") and, for such purposes, irrevocably submits to the
non-exclusive jurisdiction of the courts of England and Wales.
12.3 The Beneficiary irrevocably waives any objection which it might at any
time have to the courts of England and Wales being nominated as a
forum to hear and determine any Proceedings and agrees not to claim
that the courts of England and Wales are not a convenient or
appropriate forum.
12.4 Each party agrees that the process by which any Proceedings in England
and Wales are begun or any document relating to such Proceedings may
be served in accordance with the preceding clause. Nothing contained
in this clause shall affect the right to serve process in any other
manner permitted by law.
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12.5 The submission to the jurisdiction of the courts of England and Wales
shall not limit the right of the Buyer to take Proceedings against the
Beneficiary in any other court of competent jurisdiction and the
taking of Proceedings in one or more jurisdictions shall not preclude
the taking of the proceedings in any other jurisdiction, whether
concurrently or not.
12.6 The Beneficiary irrevocably and unconditionally agrees not to claim in
any jurisdiction for itself or in respect of its assets immunity from
suit, execution, attachment (whether in aid of execution, before
judgment or otherwise) or other legal process and to the extent that
in any such jurisdiction there may be attributed to itself or its
assets such immunity (whether or not claimed), irrevocably waives such
immunity to the full extent permitted by the laws of such
jurisdiction.
IN WITNESS whereof this Agreement has been executed as a deed and delivered on
the date specified on page 1
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EXECUTED AS A DEED by WIN )
GAMING MEDIA INC. acting by )
)
a director, in the presence of:- )
/s/
..........................................
Signature of witness
Name:
Address:
Occupation:
EXECUTED AS A DEED by NET PLAY )
TV PLC acting by )
)
a director, in the presence of:- )
/s/
..........................................
Signature of witness
Name:
Address:
Occupation:
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EXECUTED AS A DEED by PANMURE )
XXXXXX & CO. acting by )
)
a director, in the presence of:- )
/s/
..........................................
Signature of witness
Name:
Address:
Occupation:
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