EXHIBIT 10.1
INTELLECTUAL PROPERTY AND TECHNOLOGY PURCHASE AGREEMENT
This Intellectual Property and Technology Purchase Agreement dated as of
August 6, 2008 (the "AGREEMENT") by and among PLAYTECH SOFTWARE LIMITED, a
company incorporated under the laws of the British Virgin Islands under number
1030187 the registered office of which is at Trident Xxxxxxxx, PO Box 146, Road
Town, Tortola, British Virgin Islands ("BUYER") and MIXTV LTD., a company
incorporated under the laws of Israel, number 513552950, the principal place of
business of which is at Kiryat Xxxxxx, Xxxx 0, Xxx Xxxx 00000, Xxxxxx
("SELLER").
WHEREAS, Seller is engaged in providing an end-to-end solution for Mass
Multi-Player broadcast games and interactive gaming TV shows on Terrestrial,
Digital, Cable, DBS and the WEB (the "BUSINESS"); and
WHEREAS, Seller owns the Purchased Assets (as hereinafter defined), and Buyer
desires to acquire from Seller, and Seller desires to assign to Buyer, all its
right, title and interest in such Purchased Assets upon the terms and subject to
the conditions hereinafter set forth; and
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is
hereby acknowledged, Seller and Buyer hereby agree as follows:
1. DEFINITIONS
The following terms, as used herein, have the following meanings:
1.1. "AFFILIATE" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with
such other Person.
1.2. "ANCILLARY AGREEMENTS" means any and all assignment and transfer
documents and agreements which Buyer may request that Seller and its
personnel shall execute and deliver, in addition to this Agreement,
all as required to give effect to the transactions contemplated
hereby.
1.3. "BANKRUPTCY EVENT" means any of the following events (i) Seller shall
admit in writing its inability to pay its debts as they fall due; (ii)
shall become insolvent; (iii) shall apply for or consent to the
appointment of any liquidator, receiver, trustee or administrator for
all or a substantial part of its business, properties, assets or
revenues; (iv) a liquidator, receiver, trustee or administrator shall
be appointed for Seller; (v) Seller shall institute (by petition,
application, answer, consent or otherwise) any bankruptcy,
arrangement, readjustment of debt, dissolution, liquidation or similar
executory or judicial proceeding; (vi) a bankruptcy, arrangement,
readjustment of debt, dissolution, liquidation or similar executory or
judicial proceeding shall be instituted against Seller; or (vii)
Seller shall call a creditors' meeting for the purpose of entering
into an arrangement with them.
1.4. "CONFIDENTIAL INFORMATION" means any proprietary information relating
to the subject matter of this Agreement, including but not limited to
the Purchased Assets, all copies thereof, and all Intellectual
Property in the Purchased Assets, all designs, concepts, customers,
franchise, performance, structure, scientific, technical, algorithmic,
price, financial, and marketing information whether in written,
physical, digitalized, oral or visual form.
1.5. "ESCROW AGENT" means Xxxxxxxxxx Trust Company Ltd.
1.6. "GOVERNMENTAL AGENCY" means any local, regional, state, foreign or
other governmental agency, instrumentality, commission, authority,
board or body.
1.7. "INTELLECTUAL PROPERTY" means and includes all of the following: (A)
United States and foreign patents, patent applications, patent
disclosures and all related continuation, continuation-in-part,
divisional, reissue, re-examination, utility, model, certificate of
invention and design patents, design patent applications,
registrations and applications for registrations, (B) copyrights and
registrations and applications for registration thereof, (C) computer
software, programs, flow charts, programmers' notes, data and
documentation, (D) technology, trade secrets and confidential business
information, whether patentable or nonpatentable and whether or not
reduced to practice, know-how, designs, prototypes, enhancements,
improvements, works-in-progress, research and development information,
and (E) other proprietary rights relating to any of the foregoing
(including without limitation remedies against infringements thereof
and rights of protection of an interest therein under the laws of all
jurisdictions).
1.8. "JV" means the company jointly owned by Win Gaming Media Inc. (a
Seller Affiliate) and Two-Way Media Ltd.
1.9. "LIEN" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other
title retention agreement or lease in the nature thereof), any trust,
any filing or agreement to grant, deposit or file a pledge or
financing statement as debtor under applicable law, or any
subordination arrangement in favor of another Person.
1.10. "MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, assets, operations, financial condition, results of
operations or prospects of a Person.
1.11. "PERSON" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
1.12. "PURCHASED ASSETS" means, collectively, all of the computer servers
and hardware used by Seller for the Business and all Intellectual
Property of Seller on the date hereof, and without limiting the
generality of the aforesaid - as described in SCHEDULE 1.12 hereto,
including: (i) all of Seller's rights, title and interest in and to
the copyrights, copyright registrations, proprietary processes, trade
secrets, license rights, specifications, technical manuals and data,
drawings, inventions, designs, patents, patent applications, trade
names, trademarks, service marks, domain names, URL's, product
information and data, know-how and development work-in-progress,
software, and other intellectual or intangible property embodied in or
pertaining to the Business, whether pending, applied for or issued,
whether filed in the United States or in other countries; (ii) all
things and intangible assets authored, discovered, developed, made,
perfected, improved, designed, engineered, acquired, produced,
conceived or first reduced to practice by Seller or any of its
employees or agents that are used by Seller in the conduct of the
Business or developed by Seller for use in the Business, in any stage
of development, including, without limitation, modifications,
enhancements, designs, concepts, techniques, methods, ideas, flow
charts, coding sheets, notes and all other information relating to the
Business; (iii) any and all design and code documentation, all
application programmer interface documentation in printed and
electronic format, methodologies, processes, trade secrets,
copyrights, design information, product information, technology,
formulae, routines, engineering specifications, technical manuals and
data, drawings, inventions, know-how, techniques, engineering work
papers, and notes, development work-in-process, and other proprietary
information and materials of any kind used in or derived from all of
the above; and (iv) all consents, licenses, marketing rights, grants,
permits, authorizations and approvals by any Governmental Agency or
any other Person, relating to such Intellectual Property.
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2. TRANSFER AND SALE OF PURCHASED ASSETS
2.1. TRANSFER AND SALE. Upon the terms and subject to the conditions of
this Agreement, Buyer agrees to purchase from Seller and Seller agrees
to sell, transfer, assign and deliver to Buyer at the Closing (as
defined below), free and clear of all Liens, all right, title and
interest in and to the Purchased Assets.
2.2. EXCLUDED ASSETS. Except for the Purchased Assets, no other assets of
Seller shall be transferred, assigned or purchased pursuant to this
Agreement.
2.3. NO ASSUMPTION OF LIABILITIES. Notwithstanding any provision in this
Agreement or any other writing to the contrary, Buyer is not assuming
any liability or obligation of Seller or any predecessor owner of all
or part of its business, assets or intellectual property, including
the Purchased Assets, of whatever nature, whether presently in
existence or arising or asserted hereafter, contingent or absolute,
whether or not known at the date hereof. All such liabilities and
obligations shall be retained by and remain the obligations and
liabilities of Seller.
3. PURCHASE PRICE; ESCROW AND RELEASE FROM ESCROW
3.1. In consideration of the acquisition of the Purchased Assets under
Section 2.1, Buyer agrees to pay to the Seller, subject to the
provisions below, the total amount of $1,750,000 (one million seven
hundred and fifty thousand US dollars) (the "PURCHASE PRICE"). For the
avoidance of doubt, the Purchase Price is the full and final
consideration to be paid by the Buyer to the Seller, and such
consideration includes any and all taxes (including VAT if
applicable), duties and other mandatory payments applicable to this
transaction, and, without limiting the generality of the aforesaid,
including in Israel.
3.2. Notwithstanding the above, at the Closing the amount of $1,250,000
(one million two hundred and fifty thousand US dollars) out of the
Purchase Price shall be transferred to the Seller (the "CLOSING
AMOUNT"), and the remaining amount of $500,000 (five hundred thousand
US dollars) out of the Purchase Price (the "ESCROW AMOUNT") shall be
transferred to the Escrow Agent and deposited in escrow (the "ESCROW")
in accordance with the provisions of this Agreement and the provisions
of the Escrow Agreement attached hereto as SCHEDULE 3.2 (the "ESCROW
AGREEMENT").
3.3. The Escrow Amount shall remain in escrow until the lapse of 3 months
from the Closing (the "ESCROW PERIOD"). The Escrow Amount held in
Escrow shall be used to satisfy, to the extent possible, any loss,
liability, deficiency, damage, expense or cost (including reasonable
legal expenses), whether or not actually incurred or paid
(collectively "LOSSES"), which Buyer, its subsidiaries, and each of
their respective officers, directors, employees, agents and
shareholders ("PROTECTED PARTIES") may suffer, sustain or become
subject to, as a result of (i) any misrepresentation or breach of
warranties of Seller contained in this Agreement, the Ancillary
Agreements or in any exhibits, schedules, certificates or other
documents delivered or to be delivered by or on behalf of Seller,
pursuant to the terms of this Agreement or otherwise referenced or
incorporated in this Agreement (collectively, the "RELATED
DOCUMENTS"), (ii) any breach of, or failure to perform, any covenant
or agreement of Seller contained in this Agreement or any of the
Related Documents, including the full and complete transfer and
assignment of the Purchased Assets to Buyer, (iii) if Buyer or any
Protected Party is made a defendant in or party to any action or
proceeding, judicial or administrative, instituted by any third party
- also for the liability and the costs and expenses arising out of
such actions or proceedings, or (iv) any amount due to Buyer pursuant
to this Agreement.
3.4. Buyer shall be entitled to deduct and withhold from any payment
payable pursuant to this Agreement, the amounts required to be
deducted and withheld under any provision of local or foreign tax law,
with respect to the making of such payment. To the extent that amounts
are so withheld, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the party in respect
of whom such deduction and withholding was made.
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4. LICENSE; SUPPORT AND MAINTENANCE
In addition to the provisions above, Seller and Buyer (or an Affiliate of
Seller) shall enter into a Software License Agreement in the form of
SCHEDULE 4 hereto, by which Buyer grants Seller (or its Affiliate) a
non-exclusive license to use the software products included in the
Purchased Assets for the sole purpose of providing services to the JV, and
which contains also support and maintenance provisions and other terms and
conditions as set forth therein (the "LICENSE AGREEMENT").
5. TRANSFER OF EMPLOYEES
5.1. Effective on the Closing Date, Seller shall terminate the employment
of the employees of Seller listed on SCHEDULE 5.1 ("EMPLOYEES").
Seller shall pay all amounts due to the Employees, or due to any third
party (including without limitation tax and national insurance
authorities, insurance companies and pension, supplementary education
and other provident funds) in respect of the Employees, by law,
custom, collective agreement or otherwise under contract, including
without limitation settlements, wages, benefits, severance payments,
arrears of salary, vacation pay, recreation pay, contributions and
other remuneration and payments earned or accrued by or due to or in
respect of the Employees in connection with the period ending on the
Closing Date or due to or in respect of the Employees as a consequence
of termination of their employment by Seller.
5.2. Seller will release and transfer to the Employees all amounts accrued
in their favor in pension funds or managers insurance policies or
supplementary education funds or other provident funds. For Employees
hired by Buyer, Seller may transfer the said amounts, for the benefit
of each Employee, to the name of Buyer and advise Buyer which action
has been taken.
5.3. Prior to Closing Date, Seller and Buyer shall notify each Employee
selected by Buyer at its discretion of the intention of Buyer to offer
employment to such Employee immediately following his or her dismissal
in accordance herewith. Notices of dismissal by Seller and the offer
of employment by Buyer shall be coordinated between the parties.
5.4. Without derogating from the preceding Section 5.1, Seller shall be
solely liable to Employees for any employer liability arising,
whenever arising, from a cause of action created prior to the Closing
Date or in connection with any such Employee's employment with Seller
or the termination thereof by Seller (including, without limitation,
the liabilities referred to in Section 5.1), and will indemnify and
hold Buyer harmless from and against any such employee claim. Without
derogating from the foregoing, it is agreed that if any claims are
made by Employees against Buyer at any time with respect to additional
payments relating to or arising in connection with their employment
with Seller or the termination of their employment by Seller, such as,
without limitation, additional severance relating to the period of
employment by Seller which is caused by a raise in the salary of such
employee by Buyer at any time, Seller shall be solely responsible for
settlement of such claims or, at Buyer's option, for reimbursement and
indemnification of Buyer in respect of such claims.
5.5. Nothing herein shall impose any duty or obligation on Buyer to make
any employment offer to any Employee or in connection with the terms
and conditions of such offers, or otherwise in connection with any
Employees or with the termination of their employment with Seller.
Buyer shall not be liable to Seller for any damages, losses or costs
caused to or borne by Seller in connection with the Employees or the
termination of their employment if the Closing shall not occur for any
reason.
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6. CLOSING
The closing (the "CLOSING") of the transfer and assignment of the Purchased
Assets to the Buyer shall take place at the offices of the Buyer on the
date hereof, or at such other time as Buyer and Seller may agree, but in
any event within 7 days after the date hereof. Such time and date of
Closing are herein referred to as the "CLOSING DATE". At the Closing:
6.1. Seller shall deliver to Buyer:
6.1.1. a duly executed copy of resolutions of its Board of Directors
and shareholders, in the forms attached in SCHEDULE 6.1.1A-B;
6.1.2. all Purchased Assets, pursuant to Buyer's instructions, by
providing all relevant documentation and files by CDs, diskettes
or any other electronic means, and hard copies of the same, and
including, among other things, all documents, data in tangible
form and information related to the Purchased Assets, such as
source codes, object codes, computer programs, flow charts and
related materials, all as shall be required by Buyer, and Seller
shall not keep any copies, summaries, or other documents or data
in any form containing any of the Purchased Assets;
6.1.3. possession of all computer servers and hardware and any other
tangible assets included in the Purchased Assets;
6.1.4. deeds, bills of sale, endorsements, consents, assignments and
other good and sufficient instruments of conveyance and
assignment as the Buyer may reasonably request as necessary or
appropriate to vest in Buyer all right, title and interest in, to
and under the Purchased Assets, including, without limitation,
duly executed copies of the Ancillary Agreements; and
6.1.5. a compliance certificate in the form attached hereto as
SCHEDULE 6.1.5, executed by the Seller's Directors.
6.2. Seller, Buyer and the Escrow Agent shall execute and deliver the
Escrow Agreement.
6.3. Buyer shall transfer the Closing Amount to Seller and the Escrow
Amount to the Escrow Agent, subject to applicable withholding
requirements.
6.4. Seller and Buyer shall execute and deliver the License Agreement.
7. CONDITIONS TO CLOSING
7.1. CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations of Buyer
and Seller to consummate the Closing are subject to the satisfaction,
or waiver by each of Buyer and Seller respectively, of the following
conditions:
7.1.1. No proceeding challenging this Agreement or the transactions
contemplated hereby or seeking to prohibit, alter, prevent or
materially delay the Closing shall have been instituted by any
Person before any court, arbitrator or Governmental Agency and be
pending.
7.1.2. No provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit or
materially alter the consummation of the Closing.
7.2. CONDITIONS TO OBLIGATIONS OF BUYER. The obligation of Buyer to
consummate the Closing is subject to the satisfaction or waiver by
Buyer of the following further conditions:
7.2.1. Seller shall have performed all of its obligations hereunder
required to be performed on or prior to the Closing Date, and the
representations and warranties of Seller contained in this
Agreement or any Ancillary Agreement at the time of their
execution and delivery and in any agreement, document,
certificate or other writing delivered by Seller pursuant hereto
shall be true at and as of the Closing Date, as if made at and as
of such date.
7.2.2. No court, arbitrator or governmental body, agency or official
shall have issued any order, and there shall not be any statute,
rule or regulation, restraining the effective operation or use by
Buyer of the Purchased Assets on or after the Closing Date.
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7.2.3. Buyer shall have received the closing documents listed in
Section 6 above duly signed, and any others that it may
reasonably request, all in form and substance reasonably
satisfactory to Buyer.
7.2.4. Between the date of this Agreement and the Closing Date, there
shall not have occurred any change with respect to the business,
assets, properties, condition (financial or otherwise), results
of operations or prospects of Seller which would result in or
would be reasonably likely to have a Material Adverse Effect.
7.2.5. The Key Employee(s) identified as such on Schedule 5.1 shall
have accepted employment with Buyer and shall have executed new
employment agreements with Buyer.
7.3. CONDITIONS TO OBLIGATION OF SELLER. The obligation of Seller to
consummate the Closing is subject to the satisfaction or waiver by
Seller of the following further conditions:
7.3.1. Buyer shall have performed in all material respects all of its
obligations hereunder required to be performed by it at or prior
to the Closing Date, and the representations and warranties of
Buyer contained in this Agreement at the time of its execution
and delivery and in any certificate or other writing delivered by
Buyer pursuant hereto shall be true in all material respects at
and as of the Closing Date, as if made at and as of such date.
7.3.2. Seller shall have received the closing documents listed in
Section 6 above duly signed, and any other documents that are
reasonably required hereunder, all in form and substance
reasonably satisfactory to Seller.
8. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that on the Closing Date:
8.1. CORPORATE EXISTENCE AND POWER. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of
Israel, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on
its business as now conducted.
8.2. AUTHORIZATION; EXECUTION AND DELIVERY; NO VIOLATION. The execution,
delivery and performance of this Agreement and each of the Ancillary
Agreements entered into in connection with the transactions
contemplated hereby have been duly and validly authorized by all
necessary corporate action on the part of Seller. This Agreement and
each of the Ancillary Agreements entered into in connection with the
transactions contemplated hereby have been duly executed and delivered
by Seller, constitute the valid and binding obligations of Seller, and
are enforceable in accordance with their respective terms. The
execution, delivery and performance of this Agreement and each of the
Ancillary Agreements entered into in connection with the transactions
contemplated hereby by Seller do not and will not violate, conflict
with, result in a breach of or constitute a default under or result in
the creation of any Lien under (a) the Memorandum or Articles of
Association of the Seller, as amended to date, (b) any agreement,
contract, license, instrument, lease or other obligation to which the
Seller is a party or by which it is bound, (c) any judgment, order,
decree, ruling or injunction or (d) any statute, law, regulation or
rule of any Governmental Agency applicable to Seller or by which any
of its properties or assets or business may be bound.
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8.3. CONSENTS AND APPROVALS. No registration or filings with, notices to,
or consent, approval, permit, authorization or action of, any third
party (including any Governmental Agency or other Person) is required
in connection with the execution and delivery by Seller of this
Agreement, the Ancillary Agreements or any other agreement, document
and instrument to be executed and delivered by Seller pursuant hereto
or in connection with the consummation of the transactions
contemplated hereby or thereby.
8.4. TAXES. There are no unpaid taxes, assessments or public charges of any
type or nature whatsoever, due or payable to any state or local
government or agency (including, without limitation, any income,
social security, unemployment insurance, worker's compensation
premiums, withholding, sales, use, excise, franchise and other taxes
and charges, any deposits required to be made with respect thereto,
and all penalties and interest charges thereon) which are or could
become a Lien or charge against or otherwise affect any of the
Purchased Assets.
8.5. LITIGATION. There are no actions, suits, proceedings, citations of any
Governmental Authority, claims or investigations instituted and
pending, or threatened against or affecting the Seller and involving
the Purchased Assets. There is no unsatisfied judgment against Seller
which is or could become a Lien upon or affect the Purchased Assets.
Seller has no knowledge of any litigation presently pending in a court
or other proceeding or governmental action (including those of any
taxing authorities) nor has Seller received any service of process for
any complaint, temporary restraining order or preliminary or permanent
injunction or other notice whatsoever with respect thereto, that could
prohibit or interfere with the conveyance by Seller to Buyer of the
Purchased Assets.
8.6. ABSENCE OF UNDISCLOSED LIABILITIES. To Seller's best knowledge, Seller
has no liabilities, claims, or obligations of any nature, whether
accrued, absolute, contingent, anticipated, or otherwise, whether due
or to become due, that Seller cannot pay when due.
8.7. ASSUMPTIONS OR GUARANTIES OF INDEBTEDNESS OF OTHER PERSONS. Seller has
not assumed, guaranteed, endorsed or otherwise become directly or
contingently liable for (including, without limitation, liability by
way of agreement, contingent or otherwise, to purchase, to provide
funds for payment, to supply funds to or otherwise to invest in the
debtor or otherwise to assure the creditor against loss) any
indebtedness of any other Person.
8.8. INTELLECTUAL PROPERTY
8.8.1. SCHEDULE 1.12 fully, completely and accurately reflects all of
the Intellectual Property held by Seller on the date hereof, and
no Intellectual Property shall remain with Seller after the
Closing.
8.8.2. Seller is the true, lawful, and sole and exclusive owner of all
of the Purchased Assets, and has valid and marketable title to
all of the Purchased Assets, free and clear of all Liens. Seller
has the absolute and unconditional right, power, authority and
capacity to sell, transfer, assign, convey and deliver the
Purchased Assets to Buyer free and clear of all Liens. The
Purchased Assets are delivered, sold, assigned and transferred to
Buyer free and clear of all Liens.
8.8.3. The Purchased Assets do not infringe, violate or conflict with
any patent, copyright, trade secret or other Intellectual
Property of another Person.
8.8.4. No claims with respect to the Purchased Assets have been
asserted or are threatened by any Person, including without
limitation, (i) to the effect that the design, development,
manufacture, sale, licensing or use of the Purchased Assets or
any product as now used, sold or licensed or proposed for use,
sale or license by the Seller infringes any copyright, patent,
trade secret or other Intellectual Property right of any third
party, ((ii) challenging the ownership, validity or effectiveness
of any of the Purchased Assets, or (iii) that any Person other
than the Seller has any ownership or economic interest in any of
the Purchased Assets.
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8.8.5. There is no outstanding order, judgment, decree or stipulation
binding on Seller, and Seller is not a party to or bound by any
agreement, restricting the transfer or sale of any of the
Purchased Assets or the use thereof by Buyer after the Closing.
8.8.6. To the best knowledge of Seller, there is no unauthorized use,
infringement or misappropriation of any of the Purchased Assets
by any third party, including any employee, former employee,
consultant, distributor or customer of Seller.
8.8.7. There are no outstanding options, licenses, or agreements of
any kind relating to the Purchased Assets, nor is the Seller
bound by or a party to any options, licenses or agreements of any
kind with respect to any of the Purchased Assets or the
Intellectual Property therein. The Seller has not granted to or
assigned to any other Person any right to manufacture, have
manufactured, assemble or sell products or proposed products of
the Seller. Seller is not obligated, under contract or by law, to
pay any compensation to any third party in respect of the use,
transfer or sale of any portion of the Purchased Assets.
8.8.8. None of the former or present employees, consultants, officers
or directors of Seller or any distributor, reseller or customer
of Seller, owns, directly or indirectly, or has any other right
or interest in, or claim to, in whole or in part, any of the
Purchased Assets.
8.8.9. At no time during the conception of or reduction of any of the
Purchased Assets to practice was any developer, inventor or other
contributor to the Purchased Assets operating under any grants
from any Governmental Agency, performing research sponsored by
any Governmental Agency or private source or other obligation
with any third party that in each case could adversely affect
Seller's rights in the Purchased Assets.
8.8.10. Seller has taken security measures to protect the
confidentiality and value of all the Purchased Assets, which
measures are reasonable and customary in the industry in which
the Seller operates.
8.9. COMPLIANCE WITH LAWS. The Seller has all requisite material licenses,
permits and certificates from state and local authorities necessary to
own, use and sell the Purchased Assets. The Seller is not in violation
of, and is not under investigation with respect to, and has not been
threatened to be charged with or given notice of any violation of, any
law, regulation or ordinance relating to the Purchased Assets.
8.10. CAPITALIZATION. The shareholders who executed the shareholders
resolution delivered to Buyer at the Closing are the sole shareholders
of the Seller, on a fully diluted basis. No other Person is entitled
to any right to participate in any distribution of assets by the
Seller in the event of the liquidation or dissolution of Seller.
8.11. FINDERS. Seller has not retained any investment banker, broker, or
finder in connection with the transactions contemplated by this
Agreement.
8.12. DISCLOSURE. Neither this Agreement nor any other agreement, document,
certificate or written or oral statement furnished to Buyer or its
counsel by or on behalf of Seller in connection with the transactions
contemplated hereby contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading. There is no
fact within the knowledge of Seller or any of its executive officers
which has not been disclosed herein or in writing by them to Buyer and
which has a Material Adverse Effect, or in the future in their
reasonable opinion may have a Material Adverse Effect on Buyer or the
Purchased Assets.
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9. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warranties to Seller that:
9.1. ORGANIZATION AND EXISTENCE. It is a company duly incorporated, validly
existing and in good standing under the laws of the British Virgin
Islands and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on
its business as now conducted.
9.2. CORPORATE AUTHORIZATION. The execution, delivery and performance of
this Agreement and each of the Ancillary Agreements to which it is a
party and the consummation by it of the transactions contemplated
hereby have been duly and validly authorized by all necessary
corporate action on its part. This Agreement and the Ancillary
Agreements to which it is a party have been duly executed and
delivered by it, constitute the valid and binding obligations of it,
and are enforceable in accordance with their respective terms. The
execution, delivery and performance of this Agreement and the
Ancillary Agreements to which it is a party entered into in connection
with the transactions contemplated hereby by it do not and will not
violate, conflict with, result in a breach of or constitute a default
under or result in the creation of any Lien under (a) its Memorandum
and Articles of Association, as currently in effect, (b) any judgment,
order, decree, ruling or injunction or (c) any statute, law,
regulation or rule of any Governmental Agency applicable to it or by
which any of its properties or assets or business may be bound.
9.3. CONSENTS AND APPROVALS. No registration or filings with, notices to,
or consent, approval, permit, authorization or action of, any third
party (including any Governmental Agency or other Person) is required
in connection with the execution and delivery by Buyer of this
Agreement, the Ancillary Agreements or any other agreement, document
and instrument to be executed and delivered by Buyer pursuant hereto
or in connection herewith.
9.4. DISCLOSURE OF INFORMATION. Without derogating from Seller's
representations and warranties in this Agreement, Buyer acknowledges
that it has received all the information it considered necessary or
appropriate for deciding whether to purchase the Purchased Assets.
Buyer further represents that it has had an opportunity to ask
questions and receive answers from the Company regarding the Purchased
Assets.
10. POST CLOSING COVENANTS
10.1. NON-COMPETE; NON-SOLICITATION. Seller agrees that for a period of
four (4) full years commencing from the Closing Date, neither it nor
any of its Affiliates shall anywhere in the world: (i) participate,
assist or otherwise be directly or indirectly involved or concerned,
financially or otherwise, as a member, director, consultant, adviser,
contractor, principal, agent, manager, beneficiary, partner,
associate, trustee, financier or otherwise in any business or activity
whose principal focus is on the development, marketing and sale or
license of software products or other products or services related to
the Business, except activities in connection with the JV; (ii)
interfere or seek to interfere, directly or indirectly, with any
relationship between Buyer and any client, customer, employee or
supplier of the Business; or (iii) solicit for employment, or hire,
any employee or consultant of Buyer. If the foregoing provision shall
be held, for any reason, illegal or unenforceable in any respect, the
scope of such provision shall be deemed narrowed down so as to make it
legal and enforceable under applicable law, and in any event, such
invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement. Seller acknowledges that Buyer may be
irreparably harmed by any breach of this Section and that there would
be no adequate remedy at law or in damages to compensate Buyer for any
such breach. Seller agrees that Buyer shall be entitled to injunctive
relief requiring specific performance by Seller of this Section, and
Seller consents to the entry thereof.
For the removal of doubt, nothing in this Agreement shall limit or be
deemed to limit in any way, or create any restrictions on, Buyer's
full and complete discretion and freedom in using and utilizing the
Purchased Assets for any purpose, including for and in all platforms,
products and markets, including without limitation the UK market.
- 9 -
10.2. LIABILITY TO CONTRACTORS. Buyer does not assume any obligation of
Seller to any contractor which arose, or relates to any acts or
omissions which occurred, on or prior to the date any such Person
became a contractor of Buyer or its Affiliates, and Seller shall
remain solely and exclusively responsible and liable therefor. The
foregoing shall not derogate from any obligation of Buyer to Seller
under this Agreement, including pursuant to Section 10.3.
10.3. EMPLOYEES SERVICES. For a period of 18 months from the Closing Date,
Buyer undertakes to make available to Seller or to Seller's Affiliate
the services of the Employees, in accordance with the provisions of
Schedule 4. Seller shall reimburse Buyer the costs of such services,
calculated for each Employee as the percentage of the work time
devoted by such Employee to the services each month, out of the
Employee's monthly salary. Buyer shall issue a monthly invoice to
Seller or to Seller's Affiliate for such services which shall be paid
within 10 days. Seller shall be liable to Buyer, jointly and severally
with Seller's Affiliate, if applicable, for the full payment of
Buyer's invoices. Late payment of any invoice which is not rectified
within 7 days of notice from Buyer shall cause the immediate and
irrevocable termination of the services under this Section 10.3.
Nothing herein shall impose any obligation on Buyer to offer
employment to or to continue to employ any Employee.
11. CONFIDENTIAL INFORMATION
11.1. 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.
11.2. 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 -
12. ADDITIONAL COVENANTS OF PARTIES
12.1. 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. 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.
12.2. 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.
13. MISCELLANEOUS
13.1. 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.
13.2. 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.
13.3. 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.
13.4. 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.
13.5. 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.
13.6. 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.
- 11 -
13.7. 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.
13.8. 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.
13.9. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or
interpretation hereof.
13.10. 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.
13.11. 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.
13.12. 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.
[remainder of page intentionally left blank]
- 12 -
[Signature page to Asset Purchase Agreement]
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.
MIXTV LTD.
By:/s/ Xxxx Xxxxx and /s/ Xxxxxx Xxxxxx
Title:___________________________
PLAYTECH SOFTWARE LIMITED
By: /s/ Mor Xxxxxx and /s/ Xxx Xxxxx
We the undersigned, holding all of the share capital 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.
_____________________ _______________________
Win Gaming Media Inc. Zone4Play Inc.
(a Nevada Corporation) (a Delaware Corporation)
By: /s/ Xxxxxx Xxxxxx and /s/ Adiv Baruch By: /s/ Xxxxxx Xxxxxx and /s/ Adiv Baruch
Title: ________________ Title: ___________________
- 13 -
SCHEDULE 1.12
PURCHASED ASSETS
MIXTV HARDWARE ASSETS (DEVELOPMENT & QA PURPOSES)
Hardware is aprox. 4 years old
------------------- ------------------------------------------------------------
UNITS ITEM
------------------- ------------------------------------------------------------
4 cabinet (42u)
------------------- ------------------------------------------------------------
2 ups
------------------- ------------------------------------------------------------
1 ups battery
------------------- ------------------------------------------------------------
20 switch
------------------- ------------------------------------------------------------
35 server (1u)
------------------- ------------------------------------------------------------
4 server (2u)
------------------- ------------------------------------------------------------
3 server (4u)
------------------- ------------------------------------------------------------
2 server (tower)
------------------- ------------------------------------------------------------
1 PDU
------------------- ------------------------------------------------------------
1 MiXTV Director hardware kit + spare parts
------------------- ------------------------------------------------------------
- 14 -
 |
BROADCAST GAMING
TECHNOLOGY
--------------------------------------------------------------------------------
This document is strictly confidential and is not to be distributed or
reproduced in any form or by any means without the expressed written consent of
an authorized officer of NetFun Ltd. or it's appointed representative.
THIS PRELIMINARY MATERIAL IS NOT, AND SHOULD NOT BE AN OFFER TO SELL OR
SOLICITATION OF AN OFFER TO PURCHASE ANY SECURITIES. IT HAS BEEN PREPARED FOR
THE SOLE PURPOSE OF DETERMINING WHETHER YOU HAVE AN INTEREST IN RECEIVING
ADDITIONAL INFORMATION FOR CONSIDERATION.
--------------------------------------------------------------------------------
- 15 -
--------------------------------------------------------------------------------
CONTENTS
--------------------------------------------------------------------------------
1. INTRODUCTION 18
2. ARCHITECTURE
2.1. OVERVIEW 19
2.2. DEPENDENCIES 23
3. COMPONENTS 24
3.1. SMS INFRASTRUCTURE PROVIDER 24
3.2. MIXTV ENTERTAINMENT SERVER 26
3.3. MIXTV DIRECTOR 30
3.4. ZONE GAMING ENGINE
4. APPENDICES
- 16 -
--------------------------------------------------------------------------------
ABBREVIATIONS
--------------------------------------------------------------------------------
2D - 2 Dimensional
3D - 3 Dimensional
HTTP - HyperText Transfer Protocol
HTML - Hyper-Text Messaging Language
IVR - Interactive Voice Response
J2ME - Java 2 Micro Edition
LAN - Local Area Network
MMS - Multimedia Messaging Service
NTSC - National Television System Committee
ODBC - Open Data Base Connection
PAL - Phase Alternating Line
RGB - Red, Green and Blue
SDI - Serial Digital Interface
SMS - Short Message Service
SMSC - SMS Service Center
SNMP - Simple Network Management Protocol
STB - Set-Top Box
TCP/IP - Transmission Control Protocol over Internet Protocol
WAP - Wireless Application Protocol
Y/C - Luminance / Chrominance
- 17 -
--------------------------------------------------------------------------------
14. 1. Introduction
--------------------------------------------------------------------------------
MiXTV brings the success of telephony interactive voice response, mobile
messaging, on-line interactivity and the wide spread virtual betting arena to
the linear TV and the Broadband TV space. It provides an end-to-end solution for
broadcasters and broadband TV providers who wish to engage their audiences in
Mass Multi-Player games over linear broadcast television and interactive live TV
shows on Analog, Digital, Terrestrial, Cable, Satellite TV networks, and Web
broadband TV using the telephony device as means for a return path and web
applications to interact with the show.
Focusing on TV gambling shows and applications, MiXTV enables TV producers,
broadcasters and gambling operators to broadcast gaming applications with full
telephony and web messaging interactivity. It offers compelling, rich media,
betting, gaming and pay per play skill games incorporated into original formats
or played out under a TV channel brand, with support of full screen
fully-automated interactive formats and/or interactive overlays on live TV
shows. Mass audiences at home can easily interact and communicate with the
broadcast gaming application using the WEB, SMS, WAP, J2ME, and IVR - while each
player can see their response on the TV screen in Real-Time.
MiXTV facilitates the combination of live/pre-recorded gambling programming on
linear TV and broadband TV with viewers' real-time interaction, thus equipping
broadcasters, producers and gambling operators with a powerful acquisition tool
to entice the audience while introducing a completely new medium for gambling.
Using professional real-time broadcast graphics engine, MiXTV supports all
broadcast standards, including broadband streaming and linear TV broadcast
standards including SDI, analogue YuV and composite signals on both PAL and
NTSC. True integration of Fill and Key signals through downstream mixer or
keyer, and easy interface to broadcast scheduling system, allows rapid roll of
formats and games.
- 18 -
--------------------------------------------------------------------------------
15. 2.1 Technology
--------------------------------------------------------------------------------
15.1. Overview
MiXTV's technology is a Patent Pending suite of software and hardware
to deliver mass-multi-player interactive gambling applications. It is
smoothly implanted into the existing infrastructure of broadcasters
control room, telecommunication operator's network and gambling
operators BackOffice.
MiXTV technology comprises of two major components:
o Mix TV Entertainment Server is a multi-platform game session
server, which enables the delivery of enhanced, interactive
TV across multiple communication barriers, it processes and
analyzes all data before broadcast.
o Mix TV Director is responsible for injecting the interactive
stream to the appropriate application then generates
broadcast quality signals
MiXTV Entertainment Server handles the applications' logic and the
aggregation of multiple feeds from multiple sources (such as SMS
centers, MMS relays, WAP, WEB, MMS, IVR and XML). MiX Entertainment
Server links feeds to their respective applications to create
interactive TV shows. The application output is broadcasted through
MiXTV Director and can be easily manipulated and changed with the
"MiXTV SDK", an XHTML based script language allowing script level
programmers to changes quickly complex TV applications.
MiXTV Director is responsible to convert the output of MiX
Entertainment Server into a broadcast quality video stream, it enables
easy to use management of interactive TV application broadcast. It
controls what is meant to be broadcasted whether it's a live show or
pre-recorded one. It offers full control over interactive TV
applications play-lists and schedules.
- 19 -
15.2. Interaction Flow
- 20 -
15.3. Broadcast Stream
- 21 -
15.4. Architecture
BUILT ON A MODULAR, COMPLEXITY FREE, DISTRIBUTED SYSTEM, THAT WAS PUT IN PLACE
TO STREAM LINE THE OPERATION OF A FULL SOLUTION FOR ENABLING GAMING APPLICATIONS
WITH INTERACTION DELIVERED BY WEB, SMS, WAP, J2ME, AND IVR FOR BOTH THE
BROADCASTER AND THE LICENSED GAMING OPERATOR.
- 22 -
15.5. Dependencies
o Linux RedHat Advanced Server OS
o Internet connection, minimum of 2mbit/s standard ADSL connection, with
contention ratio of 20:1. Dedicated public IP.
o Cellular operator throughput and latency
o SMS broker throughput and latency
o IVR broker throughput and latency
o Broadcast video quality video stream and alpha key
o Broadband video latency & buffering
o 3rd party account management
o 3rd party back office
- 23 -
--------------------------------------------------------------------------------
16. Components
--------------------------------------------------------------------------------
16.1. SMS Infrastructure Provider
16.1.1. Introduction
The SMS infrastructre provider is responsible to aggregate all text SMS
sent by end players interacting with the broadcasted fixed odds game, and
to deliver all received messages to MiXTV Entertainment Server.
It provides robust connection for high volume throughputs to different
cellular operators messaging centers, thus, allowing end users to
interact and send messages through a single number regardless of their
cellular carrier network. The SMS infrastructure provider, having
financial settlement with all carriers, is also responsible for
handling and managing all end users billing of premium and non premium
SMS interactions.
- 24 -
16.1.2. Two Way SMS
Using two messaging allows to have connections to lots of mobile phones
simultaneously. There are two different types of messages - Mobile
Originated (MO) message which is the player response to the TV betting
application, and Mobile Terminated (MT) message, which is sent to the
player in respect to their MO.
16.1.2.1.
16.1.2.2.
16.1.2.3.
16.1.2.4.
- 25 -
16.2. MiXTV Entertainment Server
16.2.1. Introduction
MiXTV Entertainment Server is a generic messaging platform for gaming
and community based applications. Its goal is to provide means of
messages processing using various business logics. It provides an
end-to-end solution to various types of betting and interaction
services, either as full frame format or super imposed on existing
progarmme, is designed to naturally adjust the type and quantity of
information exchanged to existing communication device, optimizing
reach-ability and availability.
The server is session state distributed software, binary driven
architecture, it enables the distribution of application logic
throughout the server to support redundancy, performance, integrity,
high availability and scaleable environment. Every part may be
installed on a different machine to satisfy network security needs as
well as load balancing and high availability.
MiXTV Entertainment Server enables interactive betting applications
across multiple platforms and communication systems; it incorporates
broadcast TV, mobile messaging data - SMS, MMS, J2ME, WAP -
conventional telephony - IVR - and the Internet to be brought together
as a whole and run from a single environment.
- 26 -
16.2.2. Architecture
- 27 -
16.2.3. Key Features
o Seamless connection interface to communication networks.
Examples are SMS, WAP, WEB, J2ME, MMS and conventional
telephony (IVR).
o Session state management between players, their
communication devices and the services/applications they are
interacting with.
o Full synchronization of diverse media while supporting mass
interactions by players - in a real time mode.
o An immediate, `always on' channel through which players can
respond or receive messages
o High degree of connectivity to external interfaces
o Scalable and robust platform for processing high volume
traffic, support of up to 500 messages per second in a
single transport layer
o Open architecture to easily interface new bearers and
broadcaster systems
o Fully redundant, Raid mirror
16.2.4. Security Framework
Security framework uses an ACL architecture similar to Windows NT. An
access control entry allows or denies a player or a group access to
game capabilities in service resolution. The set of actions for player
in a game include sending and receiving messages and accessing service
data such as the collection of current players. The security token is
a 32bit value in which every bit represents an allowed action. A
security token is associated with a player-game or a group-game pair
to form an Access Control Entry (ACE). The collection of all ACEs for
a game forms the service's Access Control List (ACL).
16.2.5. Adaptor
An Adaptor interfaces with the corresponding gateway using an
appropriate protocol, and a unified XML-based protocol is used to
interface with the MiXTV Entertainment Server. Each adaptor implements
message queue, message priority and cache mechanism.
SMS - The SMS Adaptor provides support for SMS messaging platform. The
Adaptor interfaces with SMS infrastructure provider, it is responsible
for MO and MT message to support high throughputs and on the other
hand to manage different billing profiles.
- 28 -
WEB - The Web Adaptor provides support for Web-based messaging
clients. It is it is build on ISAPI extension for an IIS Web Server,
message tunneling is being implemented to act as a "Firewall Friendly"
application thus achieving better server throughputs.
WAP - In many aspects, the WAP Adaptor is similar to the Web Adaptor
described above, major difference relies on encapsulated functionality
in WML pages, message push is implemented for WAP 1.2 protocol, and
WML page refreshing for current version.
IVR - Based on XML protocol over HTTP, all telephony responses
received by the IVR infrastructure provider are converted to MiXTV
Server unified protocol, IVR infrastructure provider is responsible to
provide telephony ports, thus freeing the adaptor to handle vast
throughputs.
16.2.6. Application Redirector
Application redirector is responsible to redirect input data to
corresponding Betting Application and output data to the corresponding
adaptor and client device. Important note: not always input and output
device are the same, sometimes MiXTV Server gets input data from, let
say, SMS adaptor and transfer particular for this request output data
to video streaming adaptor.
- 29 -
16.3. MiXTV Director
16.3.1. Introduction
MiXTV Director, located in the up-link or switcher hub, is responsible
for converting the TV betting responses into a video stream. The
real-time conversion maintains the TV gaming experience; for example,
when a player interacts with the TV betting application, it causes the
graphic changes to be immediately reflected on their TV-set.
It supports all video standards in broadcast quality stream. It
outputs Fill and Key video signals to connect to broadcaster's
downstream mixer or keyer, thus allowing games to be broadcasted
either in full frame format or super imposed on existing programme.
MiXTV Control application enables the delivery of interactive gaming
applications in different formats to all TV players, it provides easy
integration and displaying of interactive TV betting applications, it
controls what segment of the game is meant to appear on TV whether
it's a live gaming show or pre-recorded one, it offers full manual
control over scene play-lists, also allowing seamless connection to
auto broadcast scheduler system.
MiXTV Entertainment Server is solely responsible for processing the
interactive gaming data, thus enabling full separation of gaming
logics from visual implementation. MiXTV Director can support multiple
different game visuals to represent the same player interactive
responses.
- 30 -
16.3.2. Architecture
- 31 -
16.3.3. Game Video Formats
FULL SCREEN - game format is fully covering the video frame, in this
mode Key video signal is irrelevant. Games are opaque in 3:4 or 16:9
aspect ratio.
ENHANCED TV - games are super imposed on existing programme, covering
part of the video frames. Super imposed layers support different
levels of opacity to reveal the programme broadcasted in the
background.
LIVE STUDIO / DVE - connected to a mixer with DVE features, MiXTV
Control application provides full control on the positioning of the
gaming layer, on the other hand when broadcasted live to air, Control
application provides essential cueing features via a simple interface.
MODERATION - MiXTV Director provides an easy interface to manually
control text message flow. Moderation can be operated from a remote
application from within a remote site.
16.3.4. Key Features
MiXTV Control application supports a wide set of features to control
the behavior of the interactive TV applications.
o Delivery of interactive TV gaming applications to all
analogue and digital broadcast TV
o Seamless connectivity to the broadcaster control room
o Enable the TV producer to define what and when to broadcast
gaming segments by either using broadcaster's scheduler or
by manual control
o Outputs 3:4 or 16:9 anemographic aspect ratio video
o Support of multiple game segments categorized by program
o Game specific configuration and settings
o Rapid and cost effective production of gaming application
visuals
- 32 -
16.3.5. Hardware Features
MiXTV Director uses the latest 128-bit two-channel memory bus graphics
engine, with 256 MB GDDR RAM and 16 GB/sec Memory Bandwidth to offer
pc generated graphics to Analogue and SDI601 (digital format) video,
all in broadcast quality
o High performance graphics engine with 2D/3D/MPEG2 and OpenGL
support
o 32-bit color rendering at video frame-rate with error free
single color key overlay
o Dynamic branching in pixel and vertex processors and vertex
texture fetch, support fill rate and texture fetch speed at
4 gigatexel/sec
o Composite, Y/C, RGB, YPbPr and SDI 601 digital video formats
o Downstream fill and Alpha channel support
o Fail bypass support
--------------------------------------------------------------------------------
VIDEO OUTPUT (FILL AND KEY)
--------------------------------------------------------------------------------
Composite NTSC: 483 active lines, PAL: 576
active lines
----------------------------------------------- --------------------------------
SDI 601
----------------------------------------------- --------------------------------
Y/C S-VHS
----------------------------------------------- --------------------------------
Y, R-Y, B-Y Beta Cam Levels (sync on Y or
sync on separate wire)
----------------------------------------------- --------------------------------
RGB 10000
--------------------------------------------------------------------------------
GENLOCK / TIME REFERENCE
--------------------------------------------------------------------------------
o HORIZONTAL PHASE
Used to tune signal's base to an
external genlock
o X & Y OFFSET Digital or Analog
Signal offset on TV monitor
o HORIZONTAL & VERTICAL BLANKING
--------------------------------------------------------------------------------
FILTERS
--------------------------------------------------------------------------------
o FLICKER
Controls the flicker reduction of
output signal
o LUMA
Fine control of output signal colors
----------------------------------------------- --------------------------------
- 33 -
--------------------------------------------------------------------------------
TRANSPARENCY
--------------------------------------------------------------------------------
the combination of the fader levels and of
the fade type of the main fader can produce
any transparency combination
--------------------------------------------------------------------------------
FAIL BYPASS
--------------------------------------------------------------------------------
Background input replacement can be set to:
video, blank or color bars
--------------------------------------------------------------------------------
VIDEO SYSTEM
--------------------------------------------------------------------------------
Standard NTSC, PAL
----------------------------------------------- --------------------------------
Aspect Ratio (anemographic) 4:3 or 16:9
--------------------------------------------------------------------------------
AUDIO
--------------------------------------------------------------------------------
Type Analog
----------------------------------------------- --------------------------------
Left/Right Load Balanced
----------------------------------------------- --------------------------------
Amplification Line Level
----------------------------------------------- --------------------------------
Mixing Analog
----------------------------------------------- --------------------------------
----------------------------------------------- --------------------------------
- 34 -
16.3.6. Deployment #1
- 35 -
Deployment #2
- 36 -
16.4. ES Gaming
16.4.1. Introduction
Responsible for game management and game logics, it also serves as a
seamless gateway to third party gaming operator platforms. The unique
server architecture provides generation of betting game events
according to scheduler events like in sports betting events. MiXTV's
Entertainment Server integrated RNG utilizes true random RNG, it also
supports connecting to remote game engines and RNGs'.
By interfacing to ES Gaming third party banking and account management
platform integration is made simple and effective. Communication
between servers is accomplished by secured and/or encrypted internet
protocols. MiXTV's Entertainment Server does not store data on player
nor their banking balance; it rather connects to 3rd party gaming
operator back office.
MiXTV's Entertainment Server connects to 3rd party back office to
LOGIN - to authenticate the player with the corresponding
Backoffice
BET PLACEMENT - for every player bet, the server queries the
bookmaker's platform for debiting player wager
PAY OUTS - after winning number drawn, a pay out request of
player win sum is send to bookmaker's platform for crediting
player's account
GAME RESULTS - each game drawn numbers are sent to bookmaker's
platform for customer services purposes.
- 37 -
SCHEDULE 3.2
ESCROW AGREEMENT
[Attached]
- 38 -
SCHEDULE 5.1
EMPLOYEES
------------------- ------------------------------------------ -----------------
NAME TITLE KEY EMPLOYEE
------------------- ------------------------------------------ -----------------
Xxxx Xxxxx CEO *
------------------- ------------------------------------------ -----------------
Xxxx Xxxxxx R&D Manager *
------------------- ------------------------------------------ -----------------
Xxxxxx Xxxxxx Producer
------------------- ------------------------------------------ -----------------
Andrey Yevsyukov IT & System Manager DBA, Chief Architect *
------------------- ------------------------------------------ -----------------
Xxxxx Xxxxx Creative Director, Designer
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Xxxx Xxxx Director C++ programmer
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Xxxxxxx Xxxxxx ES Programmer
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Rami Dakka Back office/ES/Web programmer
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Xxxx Xxxxxxxxxx Interactive TV/ WEB/ Multimedia programmer
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Xxxx Xxxxxxxxx QA
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- 39 -
SCHEDULE 6.1.1A
BOARD RESOLUTION
[Attached]
- 40 -
SCHEDULE 6.1.1B
SHAREHOLDERS RESOLUTION
[Attached]
- 41 -
SCHEDULE 6.1.5
COMPLIANCE CERTIFICATE
This certificate (this "CERTIFICATE") is given pursuant to Section 6.1.5 of the
Intellectual Property and Technology Purchase Agreement (the "AGREEMENT"), dated
July 31, 2008, by and between MixTV Ltd. (the "COMPANY"), a company organized
under the laws of the State of Israel, and Playtech Software Limited, a company
organized under the laws of the British Virgin Islands. Any capitalized terms
not defined herein shall have the meaning ascribed to them in the Agreement.
The undersigned, being the duly appointed Director of the Company, hereby
certifies in his capacity as such and in the name and on behalf of the Company
as follows:
1. All representations and warranties made by the Company in Section 8 of
the Agreement are true and correct as of the date hereof.
2. All covenants, agreements and conditions contained in the Agreement to
be performed by the Company on or prior to the Closing have been performed or
complied with in all material respects, as of the date hereof.
IN WITNESS WHEREOF, the undersigned has signed his name to this Certificate this
31st day of July, 2008.
MixTV Ltd.
______________________
[SIGNATURE]
Name: ______________________
Title: Director
- 42 -
ESCROW AGREEMENT
ESCROW AGREEMENT (the "AGREEMENT"), dated as of August 6, 2008, by and
among (i) MixTV Ltd. (the "COMPANY"), a company organized under the laws of the
State of Israel ("SELLER"), on the one part, and Playtech Software Limited, a
company organized under the laws of the British Virgin Islands ("BUYER") and
(iii) Xxxxxxxxxx Trust Company Ltd., a company incorporated under the laws of
the sate of Israel, company number 513131060 the registered office of which is
at 00 Xxxxx Xxxx Xx., Xxx Xxxx, Xxxxxx as Escrow Agent (the "ESCROW AGENT").
W I T N E S S E T H :
WHEREAS, Buyer and Seller signed an Asset Purchase Agreement (the "ASSET
PURCHASE AGREEMENT") dated July , 2008; and
WHEREAS, Buyer and Seller agree that the consideration which shall be paid
to Seller upon the terms and conditions set forth in the Asset Purchase
Agreement, will be paid to the Escrow Agent according to the terms and
conditions of this agreement; and
WHEREAS, Buyer and Seller desire that the Escrow Agent hold and release the
Escrow Cash Deposit (as defined below), and the Escrow Agent is willing to do
so, on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT.
The Escrow Agent is hereby constituted and appointed as escrow agent
hereunder.
2. ESCROW CASH DEPOSIT.
According to the terms and conditions in the Asset Purchase Agreement Buyer
shall deliver to the Escrow Agent, an amount in cash equal to US$ 500,000
("CASH ESCROW DEPOSIT"), to be held by the Escrow Agent in accordance with
the terms of this Agreement. The Escrow Agent hereby agrees to act with
respect to the Cash Escrow Deposit as hereinafter set forth. The Cash
Escrow Deposit will be retained by the Escrow Agent for safekeeping
pursuant to the terms hereof. The Cash Escrow Deposit shall be delivered by
wire to a designated bank account of the Escrow Agent, as follows:
Account No.: 350634
Account Name: Xxxxxxxxxx Trust Company
Bank: Bank Hapoalim
Branch No.: 780
3. ESCROW AMOUNTS.
The Cash Escrow Deposit amounts and any benefits of any interest or other
income earned thereon (collectively, the "ESCROW AMOUNTS" or "Escrow
Funds"), shall be held by the Escrow Agent in accordance with the terms of
this Agreement.
4. POSSIBLE ESCROW WITHDRAWAL
4.1. The Escrow amount shall be used to satisfy under the terms listed in
this section 4, to the extent possible, any loss, liability,
deficiency, damage, expense or cost (including reasonable legal
expenses), whether or not actually incurred or paid (collectively
"LOSSES"), which Buyer, its subsidiaries, and each of their respective
officers, directors, employees, agents and shareholders ("PROTECTED
PARTIES") may suffer, sustain or become subject to, as a result of (i)
any misrepresentation or breach of warranties of Seller contained in
the Asset Purchase Agreement, the Ancillary Agreements (as defined
therein) 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 the Asset Purchase Agreement or otherwise
referenced or incorporated therein (collectively, the "Related
Documents"), (ii) any breach of, or failure to perform, any covenant
or agreement of Seller contained in the Asset Purchase Agreement or
any of the Related Documents, including the full and complete transfer
and assignment of the Purchased Assets (as defined therein) 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 the Asset Purchase Agreement.
4.2. In the event that any of the events listed in section 4.1 materialize,
Buyer shall promptly inform Seller and the Escrow Agent, (the "INITIAL
NOTICE") and provide Seller and Escrow Agent with a copy of the
evidence for any such event. Such Initial Notice shall state the
amount of payment required to be paid from the Escrow Funds by a
Protected Party (the "CLAIM AMOUNT").
4.3. In the event that within 5 Business Days of the receipt of the Initial
Notice by the Escrow Agent, Escrow Agent receives a notice from Seller
("SELLER'S RESPONSE") stating that (a) it objects to the payment of
such Claim Amount, (b) it intends to actively and diligently defend
such claim, then Escrow Agent shall retain the Claim Amount and treat
it in accordance with Section 4.4 below, and the Escrow Agent shall
release the remaining Escrow Funds to Seller on the Release Date. In
the event that the Escrow Agent does not receive Seller's Response
within such 5-Business Day period, Escrow Agent shall, within 2
Business Days thereafter pay the required Claim Amount to the Buyer.
Nothing herein shall prevent Buyer from issuing more than one Initial
Notices. A "Business Day" in this Agreement shall mean any day except
Friday and Saturday and public holidays in Israel.
4.4. In the event that the Escrow Agent receives a Seller's Response in
accordance with Section 4.3, the Escrow Agent shall retain the Claim
Amount, and release it within 2 Business Days after the earlier of,
and in accordance with, the following:
4.4.1. Written instructions to the Escrow Agent signed by both the
Buyer and the Seller; or
4.4.2. A court order by the relevant judicial authority.
4.5. Escrow Agent shall notify in writing each of Buyer and Seller upon the
release or payment of any Escrow Funds in accordance with this Section
4.
4.6. Notwithstanding the above, the Escrow Agent shall be under no duty to
inquire into or investigate the validity or accuracy of any document
provided under this Section 4, and may rely and shall be protected in
acting or refraining from acting upon any written instructions or
notices furnished to it hereunder and believed by it to be genuine and
to have been signed and presented by the proper party or parties.
5. AUTOMATIC RELEASE OF ESCROW AMOUNTS.
If no Initial Notice was received by Escrow Agent at or prior to 3 months
after the Closing Date (as defined in the Asset Purchase Agreement), the
Escrow Agent shall, within 2 Business Days thereafter, deliver to Seller
all the Escrow Amounts held by it on such date (the "RELEASE DATE").
6. RELEASE PROCEDURE.
Release of cash amounts shall be made by a wire transfer, to the bank
account of the party entitled to receive such payment. The Escrow Agent
shall, promptly after each release or disbursement of the Escrow Funds set
forth herein, deliver to Seller and Buyer a notice setting forth the
aggregate amount of the Escrow Funds so released or disbursed to Seller or
Buyer and the balance of the Escrow Funds as of such date.
7. TRANSFERABILITY.
Except as expressly set forth in this Agreement, the interest of Seller,
Buyer or the Escrow Agent in the Escrow Amounts shall not be assignable or
transferable, other than by operation of law, The Escrow Amounts shall be
held as a trust fund and no party hereto shall pledge, xxxxx x xxxx or
other security interest, grant an option or otherwise encumber his
interests in the Escrow Amounts. Any assignment, transfer or encumbrance of
an interest in the Escrow Amounts in violation of this Section 7 shall be
void.
8. NO CREDITOR RIGHTS.
Buyer and Seller shall be entitled to payments from the Escrow Funds solely
in accordance with the terms hereof. No creditor of Buyer or Seller will
have any rights in or to the Escrow Funds so long as they remain subject to
the terms of this Agreement.
9. TERMINATION.
This Agreement shall terminate upon release, in accordance with the
provisions hereof, of all Escrow Amounts.
10. MATTERS RELATING TO THE ESCROW AGENT.
10.1. The Escrow Agent undertakes to perform only such duties as are
expressly set forth herein. The Escrow Agent shall have no liability
under and no duty to inquire as to the provisions of any agreement
other than this Agreement. Unless otherwise determined in this
Agreement, the Escrow Agent shall not be bound by any notice of a
claim, or demand with respect thereto, or any waiver, modification,
amendment, termination, cancellation, or revision of this Agreement,
unless it is in writing and signed by Seller and Buyer, and received
by the Escrow Agent, and, if the Escrow Agent's duties as Escrow Agent
hereunder are affected, unless the Escrow Agent shall have given its
prior written consent thereto.
10.2. The Escrow Agent may rely and shall be protected in acting or
refraining from acting upon any written instructions or notices
furnished to it hereunder and believed by it to be genuine and to have
been signed and presented by the proper party or parties. The Escrow
Agent shall be under no duty to inquire into or investigate the
validity or accuracy of any such document. The Escrow Agent shall be
under no duty to solicit any funds that may be deliverable to it under
the terms of this Agreement. In the event that the Escrow Agent shall
be uncertain as to its duties or rights hereunder or shall receive
instructions, claims or demands from any party hereto which, in its
opinion, conflict with any of the provisions of this Agreement, it
shall be required to refrain from taking any action and its sole
obligation shall be to keep safely all property held in escrow until
it shall be directed otherwise in writing jointly by Seller and Buyer
or by a final non-appealable order by a court of competent
jurisdiction.
10.3. The Escrow Agent will not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
rights and powers conferred upon it by this Agreement (other than
actions or inactions in bad faith or for its gross negligence or
willful misconduct), and may consult with outside counsel of its own
choice and will be fully protected for any action taken by it
hereunder in good faith and in accordance with the written opinion of
such counsel.
10.4. The Escrow Agent may resign by giving written notice of such
resignation to Seller and Buyer specifying a date (not less than 30
days after the giving of such notice) when such resignation shall take
effect; provided, however, that such resignation shall not become
effective until a successor escrow agent shall have been appointed and
shall have accepted such appointment in writing and all Escrow Amounts
held in escrow pursuant to this Agreement has been transferred to such
successor escrow agent. Promptly after such notice, Seller and Buyer
will, by mutual agreement, appoint a successor escrow agent, such
successor escrow agent to hold the Escrow Amounts upon the resignation
date specified in such notice. If a successor escrow agent is not
appointed within 30 days after written notice of resignation by the
Escrow Agent is received by Seller and Buyer, such Escrow Agent shall
have the right to petition any court of competent jurisdiction for the
appointment of a successor escrow agent.
10.5. Seller and Buyer may by mutual agreement at any time substitute a new
escrow agent(s) by giving 15 days' notice thereof to the Escrow Agent
then acting. The Escrow Agent shall continue to serve until its
successor accepts the escrow and receives delivery of all Escrow
Amounts held in escrow pursuant to this Agreement. Upon the request of
Seller and Buyer, Escrow Agent shall promptly transfer all Escrow
Amounts held by it in escrow pursuant to this Agreement.
10.6. Buyer and Seller, jointly and severally, agree to indemnify the
Escrow Agent and its shareholders, directors, officers, agents and
employees for, and to hold them harmless as to any liability, claims,
suits, actions, proceedings (formal and informal), investigations,
judgments, deficiencies, damages, settlements, incurred by them by
reason of, or relating to, their having accepted such appointment or
in carrying out the terms and their duties hereof, other than as
incurred by reason of the Escrow Agent's gross negligence, bad faith
or willful misconduct.
11. NOTICES.
All notices, certificates, requests, claims, demands and other
communications required or permitted to be given hereunder shall be in
writing and will be delivered by hand or faxed or sent, postage prepaid, by
registered, certified or express mail or reputable overnight courier
service and will be deemed given on the earlier of (a) the date of actual
receipt, or (b) three Business Days after being so mailed (one Business Day
in the case of overnight courier service and one Business Day following
facsimile transmission with receipt confirmation). All such notices,
requests, claims, demands and other communications will be addressed as set
forth below, or pursuant to such other instructions as may be designated in
writing by the party to receive such notice in accordance with this Section
11:
(a) If to Buyer:
Playtech Software Limited
Trident Xxxxxxxx
PO Box 146
Road Town, Tortola
British Virgin Islands
Email:
With a copy to:
Xxx Xxxxx & Co., Law Xxxxxxx
0 Xxxxxxx Xxxxxx (Xxxxx Xxxxxxxx)
Xxx Xxxx 00000
Tel: 000-0-000-0000
Fax: 000-0-000-00
(b) If to Seller:
MixTV Ltd
With a copy to:
Xxxxxxxxxx - Izardel and Co .Law office
00 Xxxx Xxxx Xx
Xxx Xxxx 00000
Israel
Attn: Avi Xxxxxxxxxx, Adv.
(c) If to the Escrow Agent:
Xxxxxxxxxx Trust Company
00 Xxxx Xxxx Xx.
Xxx Xxxx 00000
Israel
12. GOVERNING LAW; CONSENT TO JURISDICTION.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Israel without regard to conflict of law principles
thereof. Each of the parties to this Agreement hereby irrevocably and
unconditionally submits, for itself and its assets and properties, to the
exclusive jurisdiction of the competent courts of the Tel Aviv-Jaffa
District, in any action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby, or for recognition or
enforcement of any judgment relating thereto. Each of the parties to this
Agreement hereby agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law. Each of the
parties to this Agreement hereby irrevocably consents to service of process
in the manner provided for notices in Section 11. Nothing in this Agreement
shall affect the right of any party to this Agreement to serve process in
any other manner permitted by applicable law.
13. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement between all the parties
with respect to the Cash Escrow Deposit subject matter hereof and this
Agreement supersedes all prior negotiations, agreements and understandings
of the parties of any nature, whether oral or written, relating thereto;
expect that, as among Buyer and Seller, nothing herein amends the tax
liabilities and tax obligations of either of them, as previously agreed
between them or the agreements in which they are contained.
14. AMENDMENTS.
No amendment or modification of the terms of this Agreement shall be
binding or effective unless expressed in writing and signed by Seller,
Buyer and the Escrow Agent. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors, heirs, executors, administrators and permitted
assigns.
15. WAIVERS.
As between Buyer and Seller, each of Buyer and Seller agree to and hereby
mutually release and forever discharge the other party and its respective
heirs, successors and assigns, from all claims, demands, damages, costs,
expenses, liens, actions or causes of action, whether known or unknown,
growing out of or in any way related to the Payment or the subject matter
of this Agreement (whether in contract, tort, equity or otherwise), except
for obligations required to be performed under this Agreement after the
date hereof.
Whether or not the Cash Escrow Deposit is released to Seller or returned to
Buyer or paid to a third party in accordance with this Agreement, Buyer and
Seller agree between themselves, that the transfer of the Escrow Funds from
Buyer to the Escrow Agent in accordance with the terms hereof represents
full, complete and unconditional payment, settlement, accord and
satisfaction of any and all obligations of Buyer to Seller arising out of
or otherwise relating to the Asset Purchase Agreement.
16. COUNTERPARTS.
This Agreement may be executed in separate counterparts, each such
counterpart being deemed to be an original instrument, and all such
counterparts will together constitute the same agreement. All signatures of
the parties to this Agreement may be transmitted by facsimile and such
facsimile will, for all purposes, be deemed to be the original signature of
such party whose signature it reproduces, and will be binding upon such
party.
17. SEVERABILITY.
If any provision of this Agreement or the application thereof to any person
or circumstance is determined by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions hereof, or the
application of such provision to persons or circumstances other than those
as to which it has been held invalid or unenforceable, shall remain in full
force and effect and shall in no way be affected, impaired or invalidated
thereby.
- Signature Page to Follow -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
Playtech Software Limited MixTV Ltd
By: By:
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Name: Name:
Title: Title:
Xxxxxxxxxx Trust Company Ltd.
By:
-------------------------------
Name:
Title:
