Dated 2008
Dated
|
2008
|
(1) |
ZOO
GAMES, INC
|
(2) |
XXXXX
XXXXX and XXX XXXXXXXX XXXXXXX
|
(3) |
ZOO
DIGITAL PUBLISHING LIMITED, solely for purposes of Clause 6.5
hereof
|
AGREEMENT
FOR THE SALE AND PURCHASE OF THE ENTIRE ISSUED SHARE CAPITAL OF ZOO
DIGITAL PUBLISHING LIMITED
|
CONTENTS
1
|
Definitions
and interpretation
|
3
|
2
|
Sale
and purchase
|
5
|
3
|
Consideration
|
5
|
4
|
Completion
|
5
|
5
|
Warranties
|
6
|
6
|
Further
undertakings and obligations of the Seller
|
8
|
7
|
Notices
|
10
|
8
|
General
|
10
|
|
||
Exhibit
- Payments Schedule
|
12
|
2
THIS
AGREEMENT
is
made on
|
2008
|
BETWEEN:
(1)
|
ZOO
GAMES, INC of
000 Xxxxxxxx, 0xx
Xxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 (the “Seller”);
|
(2)
|
XXXXX
XXXXX of
00 Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxxx X00 0XX
(“Xx
Xxxxx”);
|
XXX
XXXXXXXX XXXXXXX of
Xxxxxx
House, Xxxxxx Hill, Grindleford, Hope Valley, Derbyshire S32 2HQ (“Xx
Xxxxxxx”)
(together,
the “Buyers”
and
each
a“Buyer”);
and
(3) |
ZOO
DIGITAL PUBLISHING LIMITED
of
Arundel Court, 000 Xxxxxxx Xxxxxx, Xxxxxxxxx, X0 0XX, Xxxxxx
Xxxxxxx.
|
IT
IS AGREED
as
follows:
1
|
Definitions
and interpretation
|
1.1
|
In
this agreement, including the schedule, the following words and
expressions have the following meanings unless the context otherwise
requires:
|
“Business
Day”
a
day
other than a Saturday or Sunday or public holiday in England;
“Buyer’s
Solicitors”
Halliwells
LLP of Xxxx Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, X0 0XX;
“Common
Stock”
common
stock of Driftwood Ventures, Inc. (“DFTW”);
“Company”
Zoo
Digital Publishing Limited (company number 05701472);
“Completion”
completion
of the sale and purchase of the Shares in accordance with this
agreement;
“Encumbrance”
a
mortgage, charge, pledge, lien, option, restriction, right of first refusal,
right of pre-emption, right of set-off, third-party right or interest,
assignment by way of security, other encumbrance or security interest of any
kind or another type of preferential arrangement (including a title transfer
or
retention arrangement) having similar effect howsoever arising;
“Loan
Note Instrument”
the
loan
note instrument created by the Seller on 4 April 2008 as amended on 30 July
2008;
“Loan
Notes”
outstanding
loan notes held by the Buyers pursuant to the Loan Note Instrument;
3
“Payments
Schedule”
the
list,
in the agreed form attached as the Exhibit hereto, setting out payments to
be
made between the Company and the Seller or its group companies post-Completion;
“Share
Purchase Agreement”
the
agreement dated 4 April 2008 between the Buyers and the Seller by which the
Seller acquired the Shares in the Company from the Buyers; and
“Shares”
100
ordinary shares of £1.00 each in the capital of the Company, comprising the
whole of the issued share capital of the Company;
“UK
Distribution Agreement”
the
distribution agreement to be entered into between the Company and Zoo
Publishing, Inc., a New Jersey corporation, in the agreed form; and
“US
Distribution Agreement”
the
distribution agreement to be entered into between Zoo Publishing Inc., a New
Jersey corporation and the Company, in the agreed form.
1.2
|
In
this agreement, a reference to:
|
1.2.1
|
a
document in the “agreed form” is a reference to a document in a form
approved and, for the purposes of identification, signed by or on
behalf
of each party;
|
1.2.2
|
a
statutory provision includes a reference to the statutory provision
as
replaced, modified or re-enacted from time to time before or after
the
date of this agreement and any subordinate legislation made under
the
statutory provision before or after the date of this
agreement;
|
1.2.3
|
a
person includes a reference to an individual, body corporate, association,
government, state, agency of state or any undertaking (whether or
not
having a legal personality and irrespective of the jurisdiction in
or
under the law of which it was incorporated or
exists);
|
1.2.4
|
a
party means a party to this agreement and includes its permitted
assignees
and/or the successors in title to substantially the whole of its
undertaking and, in the case of an individual, to his estate and
personal
representatives;
|
1.2.5
|
a
clause, or paragraph , unless the context otherwise requires, is
a
reference to a clause or paragraph of this agreement;
and
|
1.2.6
|
this
agreement or any provision of this agreement or any document are
to this
agreement, that provision or that document as in force for the time
being
and as amended from time to time in accordance with the terms of
this
agreement or that document or with the agreement of the relevant
parties.
|
1.3
|
The
contents table and headings in this agreement are for convenience
only and
do not affect its interpretation.
|
1.4 |
Words importing
the singular include the plural and vice versa and words importing
a
gender include every gender.
|
4
2
|
Sale
and purchase
|
2.1
|
The
Seller shall sell with full title guarantee and free from any Encumbrance,
and the Buyers shall each purchase 50% of the
Shares.
|
2.2
|
Section
6(2) of the Law of Property (Miscellaneous Provisions) Xxx 0000 shall
have
no effect for the purposes of this
agreement.
|
2.3
|
Title
to, beneficial ownership of and any risk attaching to the Shares
shall
pass to the Buyers on Completion and the Shares shall be sold and
purchased together with all rights and benefits attached to or accruing
to
them at or at any time after
Completion.
|
2.4
|
The
Buyers shall not be obliged to complete the purchase of any of the
Shares
unless the purchase of all the Shares is completed
simultaneously.
|
2.5
|
The
Seller irrevocably waives any right of pre-emption or other right
or
restriction on transfer in respect of any of the Shares conferred
on it
(whether under the articles of association of the Company or otherwise)
and
shall procure the irrevocable waiver of any such right or restriction
conferred on any other person who is not a party to this
agreement.
|
3
|
Consideration
|
3.1
|
The
Consideration shall be the
agreement of the parties to the immediate termination of the Share
Purchase Agreement, including all the unsatisfied or unperformed
obligations of the parties thereunder and all restrictions and covenants,
and it is hereby agreed that all provisions of the Share Purchase
Agreement are terminated with immediate
effect.
|
3.2
|
The
Buyers shall also return to the Seller as appropriate the following
amounts of Common Stock:-
|
3.2.1
|
Xx
Xxxxxxx an aggregate of 1,107,967 shares of Common Stock, of which
161,444
shares (the “Xxxxxxx Escrow Shares”) are currently being held in escrow by
American Stock Transfer & Trust Company (the “Escrow Agent”);
and
|
3.2.2
|
Xx
Xxxxx 778,238 shares of Common Stock, of which 128,472 shares (the
“Hatch
Escrow Shares”) are currently being held in escrow by the Escrow
Agent.
|
Collectively,
the foregoing shares of Common Stock are known as the “DFTW
Shares”.
4
|
Completion
|
4.1
|
Completion
shall take place at the office of the Buyer’s Solicitors on the date of
this agreement when:
|
4.1.1
|
the
Seller shall deliver to the Buyers:
|
(a) |
executed
transfers transferring the Shares to the
Buyers;
|
5
(b) |
the
share certificates for the Shares or an indemnity in the agreed
form in
respect of any missing
certificates;
|
(c) |
letters
of resignation of directors, executed as deeds and in the agreed
form;
and
|
(d) |
the
statutory and minute books of the
Company;
|
4.1.2
|
the
Buyers shall deliver to the Seller:
|
(a) |
executed
transfers transferring the DFTW Shares to the Seller free and clear
of any
Encumbrances;
|
(b) |
the
certificates relating to the DFTW Shares, together with appropriate
stock
powers duly signed in
blank;
|
(c) |
appropriate
documents cancelling the Buyers’ respective rights to the Hatch Escrow
Shares and the Xxxxxxx Escrow Shares to the Common Stock held
in escrow;
and
|
(d) |
the
original Loan Notes;
|
4.1.3
|
the
Seller shall procure that a meeting of the board of directors of
the
Company is held at which the directors
shall:
|
(a) |
vote
in favour of the registration of the Buyers as members of the
Company in
respect of the Shares (subject to the production of properly
stamped
transfers); and
|
(b) |
accept
the resignations referred to in clause 4.1.1(c)
above.
|
4.2
|
The
Parties shall procure that the UK Distribution Agreement and the
US
Distribution Agreement are executed in accordance with their
terms.
|
4.3
|
The
Parties shall procure that the payments are made in accordance with
the
Payments Schedule.
|
5
|
Warranties
|
5.1
|
The
Seller warrants to the Buyers that:
|
5.1.1
|
it
has full power and authority and has taken all action necessary to
enable
it to enter into and perform this
agreement;
|
5.1.2
|
this
agreement constitutes valid legal and binding obligations on it in
accordance with its terms;
|
5.1.3
|
it
is the only legal and beneficial owner of the
Shares;
|
5.1.4
|
the
Shares comprise the whole of the Company’s allotted and issued share
capital, and have been properly allotted and issued and are fully
paid or
credited as fully paid;
|
6
5.1.5
|
there
is no Encumbrance, nor is there any agreement, arrangement or obligation
to create or give an Encumbrance, in relation to any of the Shares
or any
unissued shares in the capital of the
Company;
|
5.1.6
|
there
is no litigation, arbitration, prosecution, administrative or other
legal
proceedings or dispute in existence or threatened against the Seller
in
relation to any of the Shares or in relation to the Seller’s entitlement
to dispose of any of the Shares and, so far as the Seller is aware,
there
is no fact or circumstance which might give rise to any such proceedings
or dispute;
|
5.1.7
|
the
Seller is not insolvent or unable to pay its debts (within the meaning
of
section 123 of the Insolvency Act 1986), no order or application
has been
made or resolution passed for the winding up of the Seller or for
the
appointment of a provisional liquidator to the Seller or for an
administration order in respect of the Seller and no action is being
taken
by the registrar of companies to strike the Seller off the register
under
section 652 of the Companies Xxx 0000; and
|
5.1.8
|
all
the Games and Intellectual Property as defined in the Share Purchase
Agreement remain vested in the Company to the extent they were at
the date
of the Share Purchase Agreement.
|
5.2
|
Each
Buyer severally warrants to the Seller
that:
|
5.2.1
|
he
has full power and authority and has taken all action necessary to
enable
him to enter into and perform this
agreement;
|
5.2.2
|
this
agreement constitutes valid legal and binding obligations on him
in
accordance with its terms;
|
5.2.3
|
he
is the only legal and beneficial owner of the applicable DFTW
Shares;
|
5.2.4
|
there
is no Encumbrance, nor is there any agreement, arrangement or obligation
to create or give an Encumbrance, in relation to any of the applicable
DFTW Shares; and
|
5.2.5
|
there
is no litigation, arbitration, prosecution, administrative or other
legal
proceedings or dispute in existence or threatened against him in
relation
to any of the shares of Common Stock such Buyer is transferring back
to
the Seller or in relation to such Buyer’s entitlement to dispose of any of
the applicable DFTW Shares and, so far as such Buyer is aware, there
is no
fact or circumstance which might give rise to any such proceeding
or
dispute.
|
5.3
|
Each
of the warranties in clause 5.1 and 5.2 is to be construed independently
and is not limited by the terms of any of the other warranties or
any
other provision of this agreement.
|
5.4
|
No
knowledge relating to the Company or the Shares (actual, constructive
or
imputed) shall prevent or limit a claim made by the Buyers for breach
of
clause 5.1.
|
7
6
|
Further
undertakings and obligations of the Seller
and of the Buyers
|
6.1
|
Waiver
of claims by the Seller
|
The
Seller confirms that at the date of this agreement:
6.1.1
|
neither
it nor any person connected with it has any claim against the Company
on
any account whatsoever other than amounts owed in the normal and
ordinary
course of business or as set out on the Payments
Schedule;
|
6.1.2
|
there
are no agreements or arrangements under which the Company has any
actual,
contingent or prospective obligation to or in respect of it or any
person
connected with it other than in the normal and ordinary course of
business; and
|
6.1.3
|
any
claim which it or any person connected with it has against the Company
(save as set out in the Payments Schedule), is hereby waived in full,
any
obligation owed to it or any such connected person by the Company
is
hereby released and it indemnifies the Buyer and the Company against
any
loss, liability or cost incurred in connection with any such claim
or
obligation.
|
6.2
|
Waiver
of claims by the Buyers
|
The
Buyers confirm that at the date of this agreement;
6.2.1
|
neither
they nor any person connected with them have any claim against the
Seller
on any account whatsoever other than amounts owed in the normal and
ordinary course of business or as set out on the Payments Schedule;
|
6.2.2
|
there
are no agreements or arrangements under which the Seller has any
actual,
contingent or prospective obligation to or in respect of them or
any
person connected with them other than in the normal and ordinary
course of
business; and
|
6.2.3
|
any
claim which they or any person connected with them has against the
Seller
(save as set out in the Payments Schedule), is hereby waived in full,
any
obligations owed to them or any such connected person by the Seller
is
hereby released and they indemnify the Seller against any loss, liability
or cost incurred in connection with any such claim or
obligation.
|
6.3
|
Further
assurance
|
The
Seller covenants with the Buyers that it will at its own cost do everything
possible to give the Buyers full and unrestricted legal and beneficial title
to
the Shares and to give effect to the provisions of this agreement including,
on
receiving the relevant Buyer’s reasonable request:
6.3.1
|
doing
and executing, or arranging for the doing and executing of, each
act,
document and thing necessary to implement this agreement;
and
|
8
6.3.2
|
giving
to the relevant Buyer all information it possesses or to which it
have
access relating to the Company’s business and allowing the relevant Buyer
to copy any document containing that
information.
|
In
addition, the Buyers agree that they will do everything possible to give the
Seller full and unrestricted legal and beneficial title to the Driftwood Shares
and to give effect to the provisions of this agreement, including, on receiving
the Seller’s reasonable request, doing and executing, or arranging for the doing
and executing of, each act, document and thing necessary to implement this
agreement.
6.4
|
Dealing
with Shares pending
registration
|
The
Seller undertakes to the Buyers that for so long as it remains the registered
holder of any of the Shares after Completion it will:
6.4.1
|
hold
the Shares and the dividends and other distributions of profits or
surplus
or other assets declared, paid or made in respect of them after Completion
and all rights arising out of or in connection with them in trust
for the
Buyers;
|
6.4.2
|
deal
with and dispose of the Shares and all such dividends, distributions
and
rights as the Buyers may direct;
|
6.4.3
|
vote
at all meetings which they shall be entitled to attend as the registered
holder of the Shares in such manner as the Buyers shall direct;
and
|
6.4.4
|
execute
all instruments of proxy or other documents which the Buyers may
require
to enable the Buyers to attend and vote at any such
meeting,
|
and,
for
the purpose of giving effect to clause this clause 6.4 the Seller hereby
appoints the Buyers to be its attorney in its name and on its behalf to exercise
all or any of the rights in relation to the Shares as the Buyers in their
absolute discretion see fit from Completion to the day on which the Buyers
are
registered in the register of members of the Company as the holders of the
relevant Shares.
6.5
|
The
Company agrees with the Seller and the Buyers agree to procure that
no
later than 12 months from Completion they will change the name of
the
Company to a name not using the word “Zoo” or anything potentially
confusingly similar to “Zoo Games” or Zoo Publishing.” Prior to the date
on which Buyers change the name of the
Company:
|
6.5.1
|
the
Buyers will comply with Section 9(a) of the UK Distribution Agreement
and
will indemnify and hold harmless the Seller against any claims, damages,
losses or liabilities relating to or arising from a breach of such
provisions; and
|
6.5.2
|
the
Buyers shall procure the assignment by the Company to the Seller
of all
right, title and interest which the Company has in and to the Community
Trademark application No. CTM006915541 and the trademark ZOO GAMES
together with the goodwill of the business symbolised by and associated
with said trademark.
|
6.6
|
The
Buyers further acknowledge that the Company not the Seller is responsible
to the bank which supplies banking facilities to the Company.
|
9
7
|
Notices
|
Any
notice given under this agreement shall be in writing and signed by or on behalf
of the party giving it and shall be served by delivering it by hand or sending
it by pre-paid first class post to the party due to receive it at their address
set out in this agreement or to such other address as was last notified in
writing to the other parties. In the absence of evidence of earlier receipt,
any
notice given pursuant to this clause shall be deemed to have been
received:
7.1
|
if
delivered by hand, at the time of actual delivery to the address
referred
to above in this clause 7; and
|
7.2
|
in
the case of first class post, two Business Days after the date of
posting.
|
8
|
General
|
8.1
|
No
announcement shall be made in respect of the subject matter of this
agreement unless it is specifically agreed between the parties or
is
required by law.
|
8.2
|
No
party shall assign, transfer, charge, make the subject of a trust
or deal
in any other manner with this agreement or any of its rights under
this
agreement without the prior written consent of the
others.
|
8.3
|
This
agreement shall be binding on and shall inure for the benefit of
each
party’s successors and permitted
assignees.
|
8.4
|
A
variation of this agreement is valid only if it is in writing and
signed
by or on behalf of each party. The Buyers and the Seller shall not
be
required to obtain the consent of the Company or any other third
party on
whom a benefit is conferred under this agreement to the termination
or
variation of this agreement or to the waiver or settlement of any
right or
claim arising under it.
|
8.5
|
The
failure or delay in exercising a right or remedy provided by this
agreement or by law does not constitute a waiver of that (or any
other)
right or remedy. No single or partial exercise of a right or remedy
provided by this agreement or by law prevents the further exercise
of that
(or any other) right or remedy.
|
8.6
|
The
Buyers’ rights and remedies contained in this agreement are cumulative and
not exclusive of any rights or remedies provided by
law.
|
8.7
|
Except
to the extent that they have been performed or where this agreement
provides otherwise, the obligations contained in this agreement remain
in
force after Completion.
|
8.8
|
This
agreement, together with all agreements entered into or to be entered
into
pursuant to the terms of this agreement, constitutes the entire agreement
between the parties in connection with the matters dealt with therein
and
(save in respect of fraudulent misrepresentation) supersedes and
extinguishes all previous agreements between the parties (whether
orally
or in writing) in connection with the matters dealt with
therein.
|
8.9
|
Each
provision of this agreement is severable and distinct from the others.
If
any provision is or at any time becomes to any extent or in any
circumstances invalid, illegal or unenforceable for any reason, it
shall
to that extent or in those circumstances be deemed not to form part
of
this agreement but (except to that extent or in those circumstances
in the
case of that provision) the validity, legality and enforceability
of that
and all other provisions of this agreement shall not be affected
or
impaired and shall remain valid and
enforceable.
|
8.10
|
This
agreement may be executed in any number of counterparts each of which
when
executed and delivered is an original but all the counterparts together
shall constitute the same document.
|
8.11
|
This
agreement shall be governed by and construed in accordance with English
law and the parties hereby submit to the exclusive jurisdiction of
the
English courts. Each party irrevocably waives any objection which
it might
at any time have to the courts of England being nominated as the
forum to
decide any suit, action or proceedings, and to settle any disputes,
which
may arise out of or in connection with this agreement and agrees
not to
claim that the English courts are not a convenient or appropriate
forum.
|
[SIGNATURE
PAGE FOLLOWS]
10
IN WITNESS whereof the parties have executed this agreement as a deed and it is hereby delivered on the day and year first before written.
EXECUTED
AND DELIVERED AS A DEED BY
ZOO
GAMES, INC
acting
by
/s/
Xxxx Xxxxxxx
|
|
Xxxx
Xxxxxxx
|
|
President
|
|
/s/
Xxxx Xxxxx
|
|
Xxxx
Xxxxx
|
|
Secretary
|
EXECUTED
AND DELIVERED AS A DEED BY
ZOO
DIGITAL PUBLISHING LIMITED
acting
by
XXXXX
XXXXX
|
/s/
Xxxxx Xxxxx
|
in
the presence of:
|
|
Xxxxx
Xxxxx
|
||
Director
|
||
/s/
Xxxxxxx Xxxxxx
|
||
Witness
signature
|
||
Xxxxxxx
Xxxxxx
|
||
Witness
name
|
||
00
Xxxxx Xxxx
|
||
Xxxxxxxxx,
X00 0XX
|
||
Witness
address
|
||
Manager
|
||
Witness
occupation
|
||
and
|
||
XXX
XXXXXXXX XXXXXXX
|
||
/s/
Xxx Xxxxxxxx Xxxxxxx
|
in
the presence of:
|
|
Xxx
Xxxxxxxx Xxxxxxx
|
||
Director
|
/s/
Xxxxxxx Xxxxxx
|
|
Witness
signature
|
||
Xxxxxxx
Xxxxxx
|
||
Witness
name
|
||
00
Xxxxx Xxxx
|
||
Xxxxxxxxx,
X00 0XX
|
||
Witness
address
|
||
Manager
|
||
Witness
occupation
|
11