Asset Purchase Agreement - Point Match Ltd. and MatchNet (Israel) Ltd.
EXECUTION COPY
ASSET PURCHASE AGREEMENT
DATED: 27 November 2003
BETWEEN:
1. Point Match Ltd. company organized and existing under the laws of Israel
(company number 51-287406-6), having its principal place of business at
Raul Wallenberg 2, Tel Aviv, Israel ("Seller"), and
2. MatchNet (Israel) Ltd., a company organized and existing under the laws
of Israel (company number 51-3458273), having its principal place of
business at 22 Maskit St., Hertzelia 46733 Israel ("Purchaser").
Together, Seller and Purchaser are "Parties" and each is a "Party."
WHEREAS
A. The Seller is engaged in the business of dating in Israel and owns,
certain assets, and wishes to sell some of such assets and to grant
license to use certain other assets to Purchaser on the terms set forth
herein below; and
B. Purchaser wishes to purchase the assets mentioned above from the Seller,
and to receive license to use certain other assets as mentioned above.
NOW THEREFORE, In consideration of the foregoing premises, the mutual; covenants
and agreements contained herein, and such other good and valuable consideration,
the Parties hereby agree as follows:
1. Definitions
When used in this Agreement, each of the following terms shall have the
meaning attributed to it below:
1.1 "ADDITIONAL AGREEMENTS" means the agreements listed in Exhibit 1.1
attached hereto.
1.2 "ASSETS" means the goodwill related to the business of Online dating
as herein defined. including Domain Names, the Purchased Trademarks,
the Database, the Marketing Agreements and the Additional
Agreements, as defined herein.
1.3 "BANK FLOATING CHARGE" means a floating charge over all of the
assets of the Seller in favour of Bank Otzar Hahayal in connection
with a credit tine of the Seller of up to US$125,000.
1.4 "CLOSING DATE" means the date which is 28 days after the Signing, or
a subsequent date, as Purchaser will notify Setter in writing,
provided however, that the Closing Date shall not be later than
January 7, 2004.
1.5 "DATABASE" means the database containing all of the data of the
Members and Subscribers in the Website (including profiles, pictures
and billing information).
1.6 "DOMAIN NAMES" means the following registered domain names: cupid
co. il and any other domain name used for Seller's online dating
business, as set forth in Exhibit 1.6.
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1.7 "MEMBER" means a person whose profile is contained in the Database.
1.8 "MARKETING AGREEMENTS" means the marketing and placement agreements
for the marketing, promotion and placement of the Website, set forth
in Exhibit 1.8.
1.9 "ONLINE DATING" means the provision of services via the Internet or
other interactive media (other than IVR - Interactive Voice
Response, provided that IVR shall not mean to include data displayed
profile), whereby persons can create a profile (generally a
classified ad-type listing populated with data provided by such
person) in a database and search and contact other persons with
profiles in that database, with the intent of meeting those other
persons for romantic relationships.
1.10 "SELLER'S MAJOR SHAREHOLDERS" means each of Mapal Communications
Ltd., an Israeli company (company number 51-282151-3), Zion Madmon
and Nimrod Lev.
1.11 "SIGNING DATE" means the date on which this Agreement is signed.
1.12 "SUBSCRIBER" means a member who has made at least one purchase from
the Website.
1.13 "SOFTWARE" shall mean all programming code source and object code
relating to the Website.
1.14 "PURCHASED TRADEMARKS" means all registered or unregistered
trademarks and service marks associated with the Website, including
all goodwill and common law rights arising therefrom all as listed
in Exhibit 1.14, in the area of Online Dating.
1.15 "RIGHT TO TRADEMARKS" means right to use, apply, register and own
(to the extent possible under applicable law) the Trademarks in the
area of Online Dating, including the grant of a perpetual, exclusive
license to utilize the Trademarks in the agreed area.
1.16 "TECHNOLOGY" means all systems and databases (apart from the
Database), Software (including the search engine operated in the
Website), algorithms and intellectual property (apart from
Trademarks and Domain Names) that belong to the seller
1.17 "WEBSITE" means the website located at the url www.cupid.co.il,
which is currently owned and operated by the Seller.
2. The Transaction.
Upon and subject to the terms and conditions of this Agreement, the Parties
agree as follows: (i) Seller shall sell to the Purchaser the Assets, and
(ii) Seller shall assign to Purchaser certain Marketing Agreements and
Additional Agreements, including all the rights and obligations relating to
them except for obligations which arise prior to the Closing.
3. Sale of Assets, Purchase Price.
3.1 Upon Purchaser's receipt of the Purchase Price set forth in Section
3.2, below, Purchaser purchases and the Seller transfers and sells
to Purchaser any and all of the Seller's rights, title and interest
in and to all the Assets, free of all pledges, liens, encumbrances,
charges or security interests, or attachments or any third party
rights.
3.2 As consideration for the purchase of the Assets, the Purchaser shall
pay the Seller the Purchase Price of US$5,700,000 Plus V.A.T as
follows:
3.2.1 The Purchaser shall pay the sum of US$2,000,000 three business
days following the execution of this Agreement to the Escrow
Account as set forth in Section 10, below (the "Escrow
Amount").
3.2.2 The Purchaser shall pay the sum of US$3,700,000 plus the V.A.T
on the full amount of the Purchase Price to the Seller on the
Closing Date, as set forth in Section 3.2.2, below.
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4. Excluded Assets.
Except for the Assets which are expressly set forth in this Agreement to be
transferred to Purchaser pursuant to this Agreement, the Purchaser shall not
be entitled, and shall not receive any right in any other asset that belongs
to Seller. Without derogating from the above, the following are expressly
excluded from the Assets under this Agreement:
4.1 All Seller's physical assets, including: servers, office equipment,
4.2 The Technology and Software,
4.3 All Seller's trademarks, other than the Purchased Trademarks.
4.4 Any assets of Seller relating to the business of Seller in the areas
other than that of Online Dating that is targeted to Israeli and/or
Jewish users.
5. Seller's Employees.
The Parties acknowledge that following the Closing Date of this Agreement,
Seller will terminate the employment of certain (or all) of its employees.
The Purchaser shall reimburse Seller for 50% of Seller's costs, up to a
maximum of US$45,000, for payment of severance and other benefits to such
employees, at Seller's discretion.
6. Closing.
At 12:00 Israel time, on the Closing Date, the Parties shall convene in the
offices of Seller's counsel, Zysman, Aharoni, Gayer and Co., at 52A
Hayarkon Street, Tel Aviv, and shall perform the following simultaneously:
6.1 Purchaser shall pay the Purchase Price, net of the amount paid into
the Escrow Account (namely, $3,700,000), to the Seller, by Bank
cheque, or wire transfer.
6.2 By way of paying to Seller the Purchase Price net of the Escrow
Amount, Purchaser confirms that all conditions to the closing have
been met, and Seller completed all its obligations with respect to
the closing.
6.3 The Escrow Agent shall transfer the Escrow Amount to the Seller.
6.4 Purchaser shall pay the Seller the V.A.T accompanying the full
Purchase Price against delivery of V.A.T receipt (Heshbonit Mas).
The Purchaser may, at its discretion, deliver to the Seller a cheque
for the amount of the V.A.T due on the Purchase Price, such cheque
to become due no later then one day before the date on which the
Seller has to pay the V.A.T on the Purchase Price. The Seller and
the Purchaser will cooperate in order that the Purchaser will
receive back the V.A.T amount as soon as possible.
6.5 Seller shall deliver to the Purchaser complete release and
satisfaction, in a form satisfactory, to Purchaser, from Bank Otzar
Hahayal releasing the Assets from any liens or encumbrances in
relation to the Bank Floating Charge, subject to the receipt by the
bank of US$125,000(the "Lien Amount").
6.6 Seller shall provide the Purchaser a copy of the Database in the
form and media as described in EXHIBIT 6.6 attached hereto.
6.7 Seller shall provide Purchaser with a compliance certificate duly
executed by an executive officer of Seller, in the form attached
hereto as EXHIBIT 6.7.
6.8 Seller shall deliver to Purchaser an irrevocable Power of Attorney
to the attorney of the Purchaser empowering him to act on behalf of
the Seller in order to complete the transfer of the Domain Names
into the name of the Purchaser, in the form attached hereto as
EXHIBIT 6.8:
6.9 Seller shall deliver to Purchaser:
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6.9.1 a signed application to the Trade Mark Registrar to amend the
specifications of all the Trademarks to exclude any use of the
Trademarks by Point Match for Online Dating in the form
attaches as EXHIBIT 6.9.1 in addition to a Letter of Consent
to use and register the Trademark for Online Dating in the
form attached as EXHIBIT 6.9.1B and
6.9.2 Setter shall execute an Exclusive, perpetual, Non-Revocable
License to use the Trademarks under the relevant
classification for Online Dating and an application for a
license to be filed with the Registrar of Trademarks, both in
the form attached as EXHIBIT 6.9.2; and
6.9.3 a perpetual, non-transferable, limited, non-exclusive licence
to utilise the Trademarks, together with Seller, in the area
of dating via cellular phones, in the form attached hereto as
EXHIBIT 6.9.3A, and an application for the registration of the
co-ownership of Seller and Purchaser in the Trademarks in the
Registrar of Trademarks in the form attached as Exhibit
6.9.3B.
6.10 Seller shall deliver to the Purchaser an irrevocable Power of
Attorney empowering Eitan Shmueli law office to act in the name of
the Seller in order to execute and complete all necessary action in
the Trademarks Registry Office to give effect to the transfer and
registration of the all the rights to the Trademarks under section
6.9 above, in the form attached hereto as EXHIBIT 6.10.
6.11 Seller and Purchaser shall sign the required assignment, in a form
acceptable to the parties Attorneys, for all Marketing Agreements,
and the Additional Agreements, such assignments shall be attached as
EXHIBIT 6.11 to this agreement. Each party shall receive an original
signed copy of the assignments.
6.12 Seller shall deliver to the Purchaser a signed application to the
Registrar of Data Bases at the Office of Ministry of Justice, for
the transfer of the ownership in the Database and an irrevocable
Power of Attorney empowering Eitan Shmueli law office to act in the
name of the Seller in order to perform all necessary actions to
transfer the ownership of the Database, all as set forth in EXHIBIT
6.12 attached hereto.
6.13 Seller shall deliver to Purchaser an executed letter from Mapal; in
the form attached hereto as EXHIBIT 6.13, under which Mapal
guarantees that Seller shall not: (i) become insolvent, (ii) have a
receiver or administrator appointed or (iii) shall not file a
petition in bankruptcy, voluntarily or involuntarily, all for the
period of 90 days from the Closing Date.
7. Post-Closing Period.
Following the Closing Date, for a period of up to 45 days, Seller shall
co-operate with Purchaser and at Purchaser's request shall:
7.1 Continue to operate the Website, utilising the Assets, at the
Purchaser's direction, in the manner and with the same standard of
care with which the Seller operated the Website prior to the
execution of this Agreement, provided that Seller will not promote
any long term purchases by Subscribers on the Website.
7.2 Remit to Purchaser all revenues collected from operation of the
Website for services and advertisements, provided after the Closing
Date, after deduction of all costs incurred under Section 7.1 (that
shall be determined, for the purpose of this Agreement to be 35,000
US$ per each week of operation).
7.3 Create a file of the Database in the form and media as described in
EXHIBIT 6.6. If Purchaser need to amend or make other alterations
in, the form and media of the Database, than Seller undertakes to
co-operate with Purchasers needs and requirements.
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7.4 Direct all Domain Names to the DNS servers as directed by purchaser.
7.5 Cease all operation of the Website and as it is obligated to do so
under Section 11.1 below (Non-compete) when directed by Purchaser,
including the provision of written certification that all of the
copies of the Database in its possession and which it knows to
exist, other than those delivered to Seller, have been destroyed.
7.6 The signature and delivery of power of attorney by the Seller as
mentioned above will not relieve Seller from its obligations to
perform any action necessary under law in order to complete the
transfer of the Assets under this Agreement.
7.7 Seller shall fully cooperate and assist to Purchaser in assigning
the rights and obligations of the Members to Purchaser, including
assignment of payments by credit cards.
7.8 The Seller shall make reasonable best commercial efforts in order to
assign the agreement between Seller and Teletel dated 29.1.2003 (the
"TELETEL AGREEMENT"). In case such assignment shall not be
completed, Seller shall give Teletel the necessary notification in
order to terminate the Teletel Agreement, and Seller shall use best
efforts in order to enable Purchaser to act under Seller's name and
rights under the Teletel Agreement during sixty days from the
Closing Date. Purchaser shall reimburse Seller for all its expenses
under the Teletel Agreement during the said period of sixty days.
7.9 Seller undertakes to fill the required applications in order to
complete and execute the assignment of the ownership of the Domain
Names to Purchaser.
8. No Assumption of Liabilities Accruing Prior to Closing Date:
Indemnification
8.1 Seller acknowledges that Purchaser is not purchasing or assuming any
liabilities, obligations or indebtedness of the Seller, or relating
to the Assets, arising from any event prior to the Closing Date,
other than the provision of Online Dating to Subscribers who have
paid Seller for such services (the "EXCLUDED LIABILITIES"). Seller
hereby agrees to pay, perform and discharge the Excluded
Liabilities, and to defend, indemnify and hold Purchaser harmless
from and against any and all claims, costs, expenses, liabilities or
losses or damages, including attorneys' fees and court costs
incurred by Purchaser relating to or arising out of the Excluded
Liabilities, no matter when occurred. Without derogating from the
above, the aggregate obligation to indemnify the Purchaser under
this Section and this Agreement shall not exceed 100% of the
Purchase Price.
8.2 Subject to the terms and conditions of this Agreement, the Purchaser
hereby agrees to defend, indemnify and hold Seller harmless from and
against any and all claims, costs, expenses, liabilities or losses
or damages, including attorneys' fees and court costs incurred by
Seller relating to or arising out of the Assets which accrue
following the Closing Date, other than any claims or liabilities
that arise solely from Seller's own negligence in its operation of
the Website following the Closing Date. The aggregate obligation to
indemnify the Seller under this Section and this Agreement shall not
exceed 100% of the Purchase Price.
9. Due Diligence.
During the period of 14 business days from the Signing (the "Due Diligence
Period"), the Purchaser may conduct a due diligence examination of Seller's
representations (the "Due Diligence Examination") that are mentioned in
EXHIBIT 12.1 to this Agreement and any additional information, and/or
documentation, and/or confirmation and/or verification in order to verify
the representations in EXHIBIT 12.1 (the "Due Diligence Representations").
To avoid any doubts it is clarified that the Due Diligence Examination
shall be limited solely to the issues that are mentioned in EXHIBIT 12.1 to
this Agreement and shall not refer to the Seller's representations as
detailed in Section 12, below.
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10. Escrow Agent and Terms of Escrow.
10.1 Seller's attorney, Adv. Erez Aharoni and/or Adv. Shy Baranov shall
act as an Escrow Agent (the "Escrow Agent") for the Escrow Amount
according to the Escrow Agreement form, which is attached as
Exhibit 10.1 to this Agreement (the "Escrow Agreement"). Escrow
Agent shall deposit the Escrow Amount in a special account,
designated for this purpose (the "Escrow Account").
10.2 Subject to the provisions of the Escrow Agreement, in event the
Purchaser fails to pay the Purchase Price (net of the Escrow Amount)
at the Closing, for any reason other than a breach of the Due
Diligence Representations, or a failure of Seller to perform its
Closing obligations as set forth in Section 6 above (provided that
such failure was not cured within ten,business days following the
Closing Date), then the Seller shall be entitled to receive the
Escrow Amount.
10.3 The parties hereby acknowledge that the Escrow Amount shall be
delivered to the Seller as liquidated damages, and the Seller shall
not be required to prove any damages. The parties further
acknowledge that the Escrow Amount reflects the anticipated real
damages that the Seller will incur as a result of the fact that the
Purchaser was exposed to the Setter's Assets.
10.4 The Purchaser confirms that the procedure regarding the transfer of
the Escrow Amount, as set forth in the Escrow Agreement, to the
Seller has been determined by both parties in good faith and is
reasonable under the circumstances of this Agreement.
10.5 In the event of non-payment of the Purchase Price for a breach of
the Due Diligence Representations, or a failure of Seller to perform
its Closing obligations as set forth in Section 6, above, the
Purchaser shall be entitled to the return of the Escrow Amount at
its election plus any interest accrued on it, within 2 business days
from the demand for its return.
11. Non-Competition.
11.1 The Seller agrees and covenants that it will not, during and for a
period of three (3) years after the Closing Date, directly or
indirectly, whether as principal, agent, stockholder, consultant,
partner, member, or in any other capacity whatsoever, participate
in, engage in, or be in any manner associated with the development,
publishing, marketing, distribution, creation, licensing or sale of
any venture in the area of online dating on the Internet that is
aimed for Israeli and/or Jewish users, unless otherwise agreed
between the Parties or their affiliates, in writing.
11.2 In addition to Section 11.1 above, Seller undertakes to cause each
of the Seller's Major Shareholders and Mr. Madmon Rami, to sign a
non-competition letter (the "Seller's Major Shareholders
Undertaking") in the form attached as Exhibit 11.2 to this
Agreement, under which each of them, severally and not jointly
agrees and covenants not to compete, directly or indirectly with the
Purchaser, during and for a period of three (3) years after the
Closing Date in the area of online dating on the Internet that is
aimed for Israeli and/or Jewish users, unless otherwise agreed
between the Parties or their affiliates, in writing. The Seller's
Major Shareholders Undertaking shall include a financial investment
in the area of online dating, or personals, on the Internet in
excess of 5% of the beneficial interest of any company or venture.
11.3 For the avoidance of doubt, the Seller and the Seller's Major
Shareholders shall have no limitation whatsoever to act in areas
that are not dating in the Internet that is targeted for Israeli
and/or Jewish users.
11.4 The Seller approves and undertakes to cause each of the Seller's
Major Shareholders to approve in writing that they acknowledge
and agree that because of the worldwide access of the Internet and
World Wide Web, the provisions of Section 11 are reasonable with
respect to the scope of restriction, duration and the geographic
scope and are reasonably necessary to protect the value of the
Assets.
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12. Representations, Warranties and Covenants of Seller.
The Seller represents and warrants that:
12.1 Information regarding the Website and Seller Activities. The Seller
represents that the information contained in EXHIBIT 12.1 attached
hereto, is true and correct in all material respect.
12.2 Organization of the Seller. The Seller is a corporation duly
organized, validly existing, and in good standing under the laws of
the State of Israel.
12.3 Authorization of Transaction. The Seller has full power and
authority (including full corporate power and authority) to perform
its obligations hereunder. Without limiting the generality of the
foregoing, as of the Closing Date, the board of directors of the
Seller the shareholders of the Seller have duly authorized the
transactions contemplated by the Agreement and their execution,
delivery, and performance by Seller.
12.4 Non-contravention. The Seller represents that the Closing of the
transactions under this Agreement are subject to the release of the
Bank Floating Charge and notification to the Register of Databases.
Subject to the these, to the knowledge of the Seller, neither the
execution and the delivery of this Agreement, nor the consummation
of the transactions contemplated hereby, will (i) violate any
constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Seller is
subject or any provision of the charter or bylaws of the Seller or
(ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any Party the right
to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other
arrangement to which the Seller is a party or by which it is bound
or to which any of its assets is subject, or result in the
imposition of any security interest upon any of its assets, except
where such would not have a material adverse effect on Seller or its
operations. Subject to the above, in event the Seller was required
to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement, then such notices
and/or consents and/or approvals were filed and/or obtained.
12.5 Title to the Assets. Subject to the Bank Floating Charge, the Seller
has good and marketable title to, or a valid leasehold interest in,
the Assets being transferred to Purchaser and there is no, pledge,
lien, encumbrance, charge, attachment, or other security interest
("Liens") therein. Without limiting the generality of the foregoing,
the Seller has good and marketable title to all of the Assets to be
acquired as part of this transaction, free and clear of any Lien or
restriction on transfer.
12.6 Legal Compliance. To the knowledge of the Seller, the Seller has
complied with all applicable laws (including rules, regulations,
codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges there under) by any governmental authority, and no action,
suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against of any
governmental authority alleging any failure so to comply.
12.7 Intellectual Property. As used in this Section 12.7, "INTELLECTUAL
PROPERTY" refers to trademarks, trade secrets, patents and patent
rights, copyrights and applications for the foregoing, if any, for
the Assets being purchased hereunder.
12.7.1 The Seller owns all Intellectual Property necessary or
desirable for the operation of the Business as presently
conducted and as presently proposed to be conducted. Each Item
of Intellectual Property owned by the Seller with respect to
the purchased Assets immediately prior to the Closing
hereunder will be owned by the Purchaser immediately
subsequent to the Closing hereunder. The Seller has taken all
reasonable necessary and desirable action to maintain and
protect each item of Intellectual Property that it owns.
12.7.2 To the knowledge of the Seller, the Seller has not interfered
with, infringed upon, misappropriated, or otherwise come into
conflict with any Intellectual Property rights of third
parties, and none of the stockholders of the Seller and the
directors and officers (and employees with responsibility for
Intellectual Property matters) of the
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Seller has ever received any such charge, complaint, claim,
demand, or notice alleging any such interference,
infringement, misappropriation, or violation (including any
claim that the Seller must license or refrain from using any
Intellectual Property rights of any third party). To the
knowledge of any of the stockholders of the Seller and the
directors and officers (and employees with responsibility for
Intellectual Property matters) of the Seller, no third party
has interfered with, infringed upon, misappropriated, or
otherwise come into conflict with any Intellectual Property
rights of the Seller.
12.7.3 The Seller has not licensed any of its Intellectual Property
to any third party.
12.7.4 to the knowledge of the Seller and with respect to each patent
or registration, which has been issued to the Seller with
respect to any of its Intellectual Property embodied in the
Assets:
12.7.4.1 The Seller possesses all right, title, and interest
in and to the item, free and clear of any lien,
license, or other restriction;
12.7.4.2 The item is not subject to any outstanding
injunction, judgment, order, decree, ruling, or
charge;
12.7.4.3 No action, suit, proceeding, hearing,
investigation, charge, complaint, claim, or demand
is pending or is threatened which challenges the
legality, validity, enforceability, use, or
ownership of the item; and
12.7.5 To the knowledge of the Seller, none of the items of
Intellectual Property, which is part of the Assets is owned by
a third party and that the Seller uses pursuant to license,
sublicense, agreement, or permission.
12.8 Contracts. With respect to the Assets, there are no contracts, which
may adversely affect title to, or create a lien over such Assets in
this transaction.
12.9 Powers of Attorney. With respect to the Assets, there are no
outstanding powers of attorney executed on behalf of Seller.
12.10 Litigation. Except with respect to a NIS 50,000 law suit, the Seller
is not (i) subject to any outstanding injunction, judgment, order,
decree, ruling, or charge or (ii) a party or is threatened to be
made a party to any action, suit, proceeding, hearing, or
investigation of, in, or before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator. The Seller has no reason to
believe that any such action, suit, proceeding, hearing, or
investigation may be brought or threatened against the Seller.
12.11 Disclosure. To the knowledge of the Seller, the representations and
warranties set forth above do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order
to make the statements and information set forth above not
misleading.
12.12 Cooperation. Seller undertakes to cooperate with Purchaser, as
reasonably necessary, in order to merge the database and interfaces
required for the cellular projects as soon as possible.
13. Representations, Warranties and Covenants of Purchaser.
The Purchaser represents and warrants that:
13.1 Organization of the Purchaser. The Purchaser is a corporation duty
organized, validly existing, and in good standing under the laws of
Israel.
13.2 Authorization of Transaction. The Purchaser has full power and
authority (including full corporate power and authority) to
perform its obligations hereunder. Without limiting the generality
of the foregoing, as of the Completion Date, the board of directors
of the Purchaser has duly authorized the transactions contemplated,
by the Agreement and their execution, delivery, and performance by
Purchaser.
13.3 Non-contravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated
hereby, will (i) violate any
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constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Purchaser is
subject or any provision of the charter or bylaws of the Purchaser.
Subject to a notification to the Register of Databases, the
Purchaser does not need to give any notice to, make any filing with,
or obtain any authorization, consent, or approval of any government
or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement.
13.4 Purchase of the Assets. The Purchaser is experienced in the fields
in which it intends to utilize the Assets, has knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of purchasing the Assets.
13.5 Capacity. The Purchaser has not proposed a compromise or arrangement
to its creditors, has committed an act of liquidation or bankruptcy;
has made a proposal or filed a notice to make a proposal to its
creditors, has had any petition for a receiving order in liquidation
or bankruptcy filed against it, has taken any proceeding with
respect to a compromise or arrangement with its creditors, has taken
any proceeding to have itself declared bankrupt or wound-up, has
taken any proceeding to have a receiver appointed of any part of its
assets, has had any receiver or other similar officer of the court
take possession of any of its property, or has had any execution or
distress become enforceable or become levied upon any of its
material properties.
13.6 The Purchaser covenants that it shall not engage with any of the
Seller's employee's unless it received the Seller's approval in
writing and in advance.
13.7 Receipt of Due Diligence Documents. The Purchaser hereby
acknowledges that, to the best of its knowledge, it received the Due
Diligence Documents, as referred to in EXHIBIT 12.1 attached hereto.
14A. Co-operation in the area of dating via cellular in Israel. The
Parties agree to co-operate in the area of dating via the
cellular phones by way of forming a joint venture in which
each of the parties will hold 50% interest (including rights
under Section 6.9.3 above). None of the Parties shall be
entitled to act severally in the area of dating via the
cellular phones in Israel. In case one of the Parties wants to
leave the joint venture within three years from the Closing
Date, than the other Party shall have the option to purchase
the first party's interest in the joint venture in
consideration of US$ 20,000.
14. Management of the Business Prior to Closing; Technical Cooperation by
Seller. Prior to Closing, the Seller will not enter into any material
transaction with regard to the Website and the Assets, unless agreed to by
Purchaser, and will conduct the business of the Website on a regular basis
without taking upon itself any material obligation or any change in the
course of regular business. The Parties agree that Seller shall be entitled
to sign an agreement with Pelephone during the said period for the benefit
of both parties. The Purchaser will have the right to approve the
agreement before signature. Seller shall allocate all necessary
programming time and technical resources necessary to effect the Database
deliveries required under Sections 6 and 7, above, as reasonably agreed
between the parties' CTOs.
15. Default by Seller: Remedies. The Seller will be in default under this
Agreement if the Seller is in breach of (1) any of its material covenants
contained in this Agreement if such breach is not cured to the reasonable
satisfaction of Purchaser within ten (10) days after notice of such breach
if such breach may be cured within such time, or a reasonable period of
time thereafter as such is required to cure same or (ii) any of the
material representations or warranties of the Seller contained in this
Agreement. In the event of any default hereunder by the Seller, Purchaser
shall give written notice to the Seller and Seller shall have ten (10) days
to cure said default prior to Purchaser's taking action to enforce its
rights. It is clarified that a breach of the Due Diligence Representations
may be cured under this Section.
Page 9 of 28
<PAGE>
EXECUTION COPY
16. Default by Purchaser, Remedies. if Purchaser (a) fails to observe or
perform, other than due to a material default or material breach by the
Seller, any of its covenants or obligations contained in this Agreement and
such failure or breach is not cured or commenced to be cured within ten
(10) days of notice from the Seller of such failure or breach or (b)
breaches any of its representations or warranties contained herein,
Purchaser shall be in default. In the event of any such default or failure
hereunder, Seller shall give written notice to Purchaser and Purchaser
shall have ten (10) days to cure said default or failure prior to Seller's
taking action to enforce its rights.
17. Proprietary Rights. Unless expressly referred to, nothing in this Agreement
shall cause the Seller to acquire any right, title, or interest in or to
any copyrights, trademarks, service marks, trade secrets, patents or other
intellectual property rights of Purchaser, or to acquire or retain any
rights to the Assets, after the Completion Date. Unless expressly referred
to, nothing in this Agreement shall cause the Purchaser to acquire any
right, title, or interest in or to any copyrights, trademarks, service
marks, trade secrets; patents or other intellectual property rights of
Seller, or to acquire or retain any rights to them prior to the Closing.
18. Confidentiality. The terms and conditions of this Agreement (including its
financial terms) shall be confidential and shall not be disclosed by either
Party without the other Party's prior written consent. After Closing the
Agreement, on time mutually agreed by the parties, the parties shall issue
a joint press release with respect to the Agreement, such press release
will be attached to this Agreement as EXHIBIT 18, when taking into account
that Purchaser is subject to the law and/or the Rules and Regulations of
the Frankfurt Stock Exchange (the "Rules"), and Seller hereby agrees to
cooperate with Purchaser insofar as any other press release or other
notifications required by the Rules. Purchaser undertakes to provide Seller
with a draft of the press release mentioned above within seven days from
the signing of this Agreement.
19. Jurisdiction. This Agreement will be interpreted, construed and enforced in
all respects in accordance with the taws of the State of Israel, The
Parties irrevocably consent to the in-personam jurisdiction of the courts
for the area of Tel Aviv-Yafo, and consent to service of process by
certified mail at its respective address or addresses set forth in Section
25, below.
20. Attorneys' Fees. In the event of any controversy, claim or dispute between
the parties hereto arising out of or relating to this Agreement or the
interpretation, performance, or breach thereof, the prevailing party shall
be entitled to recover from the other party reasonable expenses, outside
attorneys' fees, and costs incurred therein or in the enforcement or
collection of any judgment or award rendered therein.
21. Broker's Fee. Both parties shall equally share Avner Parnas' broker's fee
in a total amount equal to 1.5% (one and a half percent) of the Purchase
Price, which shall be paid by both parties plus V.A.T, if necessary, on the
Closing Date.
22. Amendment Waiver. No modification of or amendment to this Agreement, or
any waiver of any rights under this Agreement, will be effective unless in
writing signed by the party to be charged.
23. Waiver and Severability. No failure or delay on the part of either party in
exercising any right or remedy hereunder will operate as a waiver thereof
or any other provision. In the event that any provision of this Agreement
is unenforceable or invalid, such unenforceability or invalidity will not
render this Agreement unenforceable or invalid as a whole.
Page 10 of 28
<PAGE>
EXECUTION COPY
24. Headings. The section headings in this Agreement are inserted as a matter
of convenience and in no way define, limit or describe the scope of such
section or affect the interpretation of this Agreement.
25. Entire Agreement. This Agreement, including any and all schedules and
exhibits hereto, which are incorporated herein by this reference,
constitutes the entire agreement between the parties with respect to the
subject matter hereof. This Agreement supersedes, and the terms of this
Agreement govern, any prior or collateral agreements, whether oral or
written, with respect to the subject matter hereof with the exception of
any prior confidentiality agreements between the parties.
26. Notices. Any notice required or permitted to be delivered pursuant to this
Agreement shall be in writing and shall be deemed delivered: (a) upon
delivery if delivered in person; (b) three business days after deposit in
registered or certified mail, return receipt requested, postage prepaid;
(c) upon transmission if sent via telecopy, with a confirmation copy sent
via overnight mail, provided that confirmation of such overnight delivery
is received by the sender; (d) one business day after deposit with a
national overnight courier, provided that confirmation of such overnight
delivery is received by the sender; or (e) upon transmission if sent via
e-mail, with a confirmation copy sent via overnight mail same day, provided
that confirmation of such overnight delivery is received by the sender.
Notices to Seller shall be Notices to Purchaser shalt be
delivered to: delivered to:
Point Match Ltd MatchNet plc
2 Raoul Wallenberg St. 8383 Wilshire Blvd., Suite 800
Tel Aviv 69719, Israel Beverly Hills, CA 90211 USA
Attn: Zion Madmon or Nadav Palti Attn: Joe Shapira
Fax:972-3-7684142 Fax: +1 323 836-3333
E-mail: zion@pointmatch.com E-mail: joe@matchnet.com
nadav@mapal.co.it
With a copy to: With a copy to:
Adv. Shy Baranov Eitan Shmueli, Advocates
Zysman, Ahroni, Gayer - Law Office 33 Jabotinsky Street
Hayarkon, 52A Ramat Gan, Israel
Tel Aviv 52511 Israel
Fax: 03-7955510 Fax: 03-6128632
E-mail: shyb@zag-law.co.it E-mail: Eitan@shaylaw.co.il
27. Assignment. No party may assign, sublicense, transfer, encumber or
otherwise dispose of this Agreement without the prior written approval of
the other party, which will not unreasonably be withheld, except that
either party may, without the other party's consent, assign this Agreement
or any of its rights or delegate any of its duties under this Agreement:
(a) to any affiliate of such party; or (b) to any purchaser of all or
substantially all of such party's assets required for the performance of
its obligations hereunder or to any successor by way of merger,
consolidation or similar transaction. Any attempted assignment, sublicense,
transfer, encumbrance or other disposal of this Agreement by either party
in violation of this provision will be null and void and shall constitute a
material default and breach of this Agreement. In such event, the
non-assigning party's sole remedy shall be termination of this Agreement
within 45 days after such party receives notice of such violation. Except
as otherwise
Page 11 of 28
<PAGE>
EXECUTION COPY
provided, this Agreement will be binding upon and inure to the benefit of
the parties' successors and lawful assigns. .
28. Relationship. Purchaser and Seller are independent contractors and neither
party is the legal representative, agent, joint venture, or employee of the
other party for any purpose whatsoever. Neither party hereto has any right
or authority to assume or create any obligations of any kind or to make any
representation or warranty on behalf of the other party, whether express or
implied.
29. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the
same instrument.
30. Facsimile Signatures. Any signature page delivered by a fax machine or
telecopy machine shall be binding to the same extent as an original
signature page, with regard to any agreement subject to the terms hereof or
any amendment thereto. Any party who delivers such a signature page agrees
to later deliver an original counterpart to any party who requests it.
31. Stamp duty. The Parties will share equally the stamp duty on this
Agreement, if any.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
POINT MATCH LTD.: MATCHNET [ISRAEL] LTD:
By: /s/ Ilon Madmon /s/Illegible By: /s/ Joe Shapira
----------------------------- -------------------------------------
Name: Zion Madmon Illegible Name: Joe Shapira
-------------------------- ----------------------------------
Title: Chairman Title: Chairman
------------------------- ----------------------------------
Page 12 of 28
<PAGE>
EXECUTION COPY
--------------
Exhibit 1.1
Additional Agreements
Attached
Page 13 of 28
<PAGE>
27/11/03 ADDITIONAL AGREEMENT
?????? GENERAL VALID THROUGH ?????? ?????? ??????
Folder Tamar Mozes 16.12.2005 no no Rental agreement 4023$ for 223.5 meter. 18$ for 1
meter rental and maintenance. 100$ for each
parking.
Mapal BezeqKol the rental depended to 30 and written Telecom agreement, which is related to the rental
agreement the rental agreement.
yes Darset Productions Payments till no no 2,000$ Remaining for payment in 2004
16.3.2004
??????????? VALID THROUGH ???????? ??????? ????????????
Folder INFORU-Shamir current yes 60 and written SMS Interface extermerly important for system and
users
Additional Agreement
<PAGE>
EXECUTION COPY
Exhibit 1.6
Domain Names
Attached
Page 14 of 28
<PAGE>
26/11/03 CUPID DOMAIN
cupid.co.il
cupidon.co.il
kupid.co.il
Cupid domain
<PAGE>
EXECUTION COPY
Exhibit 1.8
Marketing Agreements
Attached
Page 15 of 28
<PAGE>
26/11/03 MARKETING AGREEMENT
Where? MARKETING VALID THROUGH PAUSABLE? DAYS FOR NOTICE
Folder YNET-Yedioth Limited Advertising Re-settle Re-settle
Folder Gan Oranim 31.8.2004 Basically No
Marketing Agreement
<PAGE>
26/11/03 MARKETING AGREEMENT
REMARKS
50,000$ IN YEDIOTH ADS REMAINING - Letter of November 27, 2003
1,000$ Advertising Space Every Month. Possible to pay back partially.
Marketing Agreement
<PAGE>
EXECUTION COPY
Exhibit 1.14
Purchase Trademarks
Attached
Page 16 of 28
<PAGE>
Registered Trademark Details
[JCupid LOGO]
Trade Mark No. 149347
Application Date: 21/05/2001 class 42
Providing and information in the fields of matching between offer and demand,
social introductions and matchmaking, including by means of computerized data
base, and/or global computer network, all included in class 42.
Point Match Ltd.
Petach Tikva
Registration of this mark shall give no right to the exclusive use of the letter
J separately, but in the combination of the mark.
Address for service:
Zysman, Aharoni, Gayer and Co. Adv.
52-a Hayarkon Street
Tel Aviv
Date of Publication: 31/05/2002
Date of Register: 03/09/2002
<PAGE>
Registered Trademark Details
Trade Mark No. 143107
Application Date: 10/10/2000 class 42
Providing services and information in the fields of fitness between offer and
demand, social introductions and matchmaking, including by means of computerized
data base, and/or global computer network; all included in class 42.
Point Match Ltd.
Petach Tikva
Address for service:
Zysman, Aharoni, Gayer and Co. Adv.
52-a Hayarkon Street
Tel Aviv
Date of Publication: 31/01/2002
Date of Register: 03/05/2002
<PAGE>
Registered Trademark Details
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Trade Mark No. 143106
Application Date: 10/10/2000 class 35
Management of data bases, in the Internet and communication media, in the field
of social introductions, matchmaking and love; all included in class 35.
Point Match Ltd.
Petach Tikva
Address for service:
Zysman, Aharoni, Gayer and Co. Adv.
52-a Hayarkon Street
Tel Aviv
Date of Publication: 31/03/2002
Date of Register: 02/07/2002
--------------------------------------------------------------------------------
<PAGE>
REGISTERED TRADEMARK DETAILS
[CUPID LOGO]
Trade Mark No. 149348
Application Date: 21/05/2001 class 9
Providing services and information in the
fields of matching between offer and
demand, social introductions and
matchmaking, including by means of
computerized data base, and/or global
computer network.
Point Match Ltd.
Petach Tikva
Address for service:
Zysman, Aharoni, Gayer and Co. Adv.
52-a Hayarkon Street
Tel Aviv
Date of Publication: 31/01/2002
Date of Register: 03/05/2002
<PAGE>
EXECUTION COPY
Exhibit 6.6
form and media of transfer of the Purchaser a copy of the Database
Attached
page 17 of 28
<PAGE>
11/27/2003 5:08 PM
1. CUPIDON EXPORT SPECS
2. PROFILE DATA
3. PROFILE
4. For each unique subscode, one row will be exported.
5. Each row will have as it's first column the unique subscode for that member.
6. Field values will be mapped according to attached Excel spreadsheet and
include only values in the export format enumeration or null.
7. Text values will be properly escaped quoted clean of control characters in
the text.
8. Password will appear in plain text
9. Fields which exist in Cupidon but are not present in Matchnet mapping
specifications will be exported with values as stored in Cupidon. For these
fields, A value-to-meaning documentation will be provided by Pointmatch.
10. Meanings will be most up to date meanings as presented currently to cupidon
users, both in Hebrew and English.
11. SMS supporting data will be provided according to attached Excel
spreadsheet.
12. Pelephone specific data will be provided according to attached Excel
spreadsheet.
13. Search criteria will be exported in a separate table. Each value for
multiple select items will be exported as the sum of the values according to
the mapping for that attribute as specified above. (that is, checkboxes will
be combined to form a single numeric value, the sum of the values from
Cupidon after mapping).
14. Visibility preferences will be exported in a separate table.(reverse filter)
15. PHOTOS
16. "subspics" table will be represented according to attached Excel
spreadsheet.
17. Only full size photos will be provided.
18. Files will be exported in Windows file storage media.
19. All files should be in jpeg format.
20. Only approved photos will be provided.
21. MATCHES
22. A list of subscodes of member who where already sent by the matching agent
will be exported in a separate table. The list will include the subscode of
the recipient and the subscode of the matching person who was sent to the
recipient on each row.
23. PURCHASE DATA
24. Token purchase data will be provided.
25. Token balance per subscode will be provided.
26. All New subscription purchase and product data will be provided.
27. All renewal of subscription will be provided.
28. All SMS purchase data will be provided.
29. SMS balance per subcode will be provided.
30. Credit card data will be represented in plain text string format.
31. Blacklisted credit card identification data will be provided.
<PAGE>
32. CONTACT DATA
33. Contact information between members will be exported according to the format
in attached Excel spreadsheet.
34. Each communication transaction will be exported on a separate line.
35. Message text between the members will be exported. A message from member A
to member B will be exported on one line. A reply or message from member B
to member A will be exported on another line. Each line will include the
sender's subscode, the recipient's subscode, the time and date on which it
was sent and the text of the message.
36. Message content will be represented in 4 columns: Text message, Phone number
(as string), Photo, Email address. That is, the export of a message record
will include the attached contact information (if such was included with
the message) in plain text in addition to the message text itself.
37. A channel of communication table will be exported representing who paid or
sponsored the communication channel. This will help in resolving money
issues if they arise. The Subspend table will be exported according to the
format in the attached Excel spreadsheet.
38. "Tease" data will be exported according to the format in the attached Excel.
39. SMS communication data will be exported.
40. All other communication data will be exported as well.
41. TRANSFER FORMAT
42. Data will be exported in the form of a Microsoft SQL Server 2000 database
file.
43. Both Hebrew and English characters will be represented in Unicode. Database
format NVARCHAR of appropriate length.
44. Date and time data will be represented in long date format: YYYY-MM-DD
hh:mm:ss for example 2003-02-25 13:45:03 will represent February 25, 2003 at
1:45 pm + 3 seconds. This format will be used regardless of the accuracy to
which Pointmatch currently saves dates. If minutes and seconds are not
stored then 00:00 will be represented.
45. 0 length strings will be represented as null values. Strings containing
nothing but white space will be considered 0 length strings.
46. Only valid values will be represented. Values which are out of range or not
valid within the fields format or set of meaningful values will be
represented as null.
47. Numeric values will be represented as follows:
i. Integers will include digits only. Example: 1234
ii. Fractions will include a single period (.) as decimal separator.
Example: 3.14
iii. Negative numbers will be preceded by the minus sign (-).
48. Boolean values, regardless of how they were stored in the original database,
will be represented in 1 or 0. 1 shall mean true, and 0 representing false.
49. Encrypted values will be represented in decrypted plain text.
50. Columns which are not in use by Cupidon will not be exported.
51. Whenever "As is" is mention in Excel, the data will be represented according
to the data formatting guidelines herein.
52. In addition to the specific format specified for export, and
non-withstanding any other specification herein, the full database will be
provided in SQL Server 2000.
53. AFFILIATE SUPPORT
54. List of known search banners / search form hosts will be exported.
55. List of landing pages, the supported URL's given to third parties and the
nature of the content and functionality they support will be provided.
56. List of co-branded sites supported (Portals), along with any special
functionality they provide will be documented and provided.
<PAGE>
11/27/2003 5:08 PM
57. EXTRA DICTIONARIES
58. Country list will be exported with corresponding country ID's used by
Cupidon
59. State list in US and Canada will be exported with corresponding state ID's
used by Cupidon
60. PROTOCOLS AND SPECS
61. SMS
62. A fully documented SMS API will be delivered. It will include both design
specs and the actual communication protocol with the SMS provider (Shamir)
63. Any other data regarding SMS will be delivered.
64. PELEPHONE
65. A fully documented API will be delivered.
66. The full spec of the "mini website", which is the set of web pages built
specifically to support the InfoGin appliance and the Pelephone initiative
will be provided.
67. ORANGE
68. A fully documented API will be delivered, representing the most up to date
specifications and API in development for that initiative.
69. CELLCOM
70. A fully documented API will be delivered, representing the most up to date
specifications and API in development for that initiative.
71. EXPECTED TRANSFER PROCESS
72. Upon signing, all proprietary data and specs relating to site operations,
user data and processes, which were withheld as proprietary will be released
to Matchnet.
73. A full schedule of delivery will be developed jointly by Matchnet and
Pointmatch personel.
74. After signing, Pointmatch will deliver sample data according to the
specifications in the attached Excel spreadsheet and the methods specified
in this document. Such sample should be substantial in size and allow
testing on a large scale the impact and spectrum of Pointmatch membership
data in Matchnet sites.
75. Sample data will be processed by Matchnet and any corrections of
modification will be communicated and resolved with Pointmatch personel.
76. Before closing, and upon completion of Matchnet integration work of
substantial scale data, a full export of then current Pointmatch databases
will be provided, including photo files.
77. Upon closing, the remainder of new or approved files which were not exported
initially will be provided.
78. Upon closing, the remainder of data accumulated or modified since the
previous data export will be provided to Matchnet.
<PAGE>
Export the following data in 1 row per subscode.
CUPIDON FIELD MATCHNET FILED EXPORT SPEC
SUBSCODE int as is
USER NAME LoginName As is login user name not for
PASSWORD Password As is
CURRPOINTS TokenBalance As is
SUBS.DATE InsertDate DateTimeFormat
LASTVISIT LastLogonDate DateTimeFormat
EDATE SubscriptionEndDate DateTimeFormat
PORTALCODE portalcode as is
UPDATETEXTMESS NeedsEssayTextApprovalFlag as is flag essays need approv
UPDFREETEXTDATE NeedsShortTextApprovalFlag as is flag short texts need app
CURRSMS SMSBalance as is
WHOISCELLTELL WhichPhoneisCell As is integer
FIRSTNAMEENG FirstNameEN As is
FIRSTNAMEHEB FirstNameHE As is
LASTNAMEENG LastNameEN As is
LASTNAMEHEB LastNameHE As is
BCOUNTERCODE BirthCountryRegionID As is integer
BIRTHDATE BirthDate DateTimeFormat
COUNTRYCODE Country As is integer
STATECODE StateUSCanada As is integer US Canada state
CITY City Name in English of city outside of Israel
CITYCODE CityID As is integer
CITYHEB israelCityHE Name of Place in Israel in Hebrew
ISRAEL CITY ENGLISH israelCityEN Name of Place in Israel in English
ZIP ZipCode As string
EMAIL Email As is
FAMSTATCODE MaritalStatus Integer according to mapping below
NOCHILDCODE ChildrenCount Integer according to mapping below
RELIGIONCODE Religion Integer according to mapping below
RELIGCODE JDateReligoin Integer according to mapping below
BODYSTRUCTCODE BodyType Integer according to mapping below
HEALTHCODE Health Integer according to mapping below
GENLOOKSCODE Looks Integer according to mapping below
HEIGHT Height as is integer in CM
<PAGE>
EXECUTION COPY
Exhibit 6.7
Compliance certificate
Attached
Page 18 of 28
<PAGE>
COMPLIANCE CERTIFICATE
December __, 2003
To:
MatchNet (Israel) Ltd.,
22 Maskit St.,
Herlzelia 46733
Israel
Ladies and Gentlemen:
Pursuant to Section 6.7 of that certain Asset Purchase Agreement (the "PURCHASE
AGREEMENT") by and among Match Point Ltd. (the "SELLER") and MatchNet (Israel)
Ltd., (the "PURCHASER") dated November __,2003, the undersigned hereby
certifies to the Purchaser that as of the date of Closing (as defined in the
Purchase Agreement):
1. The representations and warranties made by the Seller in Section 12 in the
Purchase Agreement are true and correct on the date of the Closing, and there
was no material adverse effect in the Seller business results.
2. All covenants, agreements and conditions contained in the Purchase
Agreement to be performed or complied with by the Seller at or prior to Closing
have been performed or complied with in all respects.
Very truly yours,
_____________________________
Zion Madmon
Chief Executive Officer
<PAGE>
EXECUTION COPY
Exhibit 6.8
Power of Attorney - Domain Names
To be attached prior to signing
Page 19 of 28
<PAGE>
Appendix # ____
IRREVOCABLE POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT We the undersigned Point Match Ltd. company
organized and existing under the laws of Israel (company number 51-287406-6),
having its principal place of business at Raoul Wallenberg 2, Tel Aviv, Israel,
hereby make, constitute and appoint, irrevocably:
ADVOCATE EITAN SHMUELI AND/OR ADVOCATE UDI
HACKER AND/OR ADVOCATE EFI ZILBER OF: TWINS
TOWERS 1, 33 JABOTINSKI ST. RAMAT-GAN 52511
AND OR ADVOCATE ADAM KRAVITZ AND/OR
ADVOCATE DAN RHODES
Acting solely with full power of substitution, for it and in its name, place
and stead to do all or any of the following matters or things:
(1)To apply before the proper Registrar of Trademarks Registry, in Israel and/or
any other state, to act in My name in order to execute and complete all
necessary action to the purposes as follows:
i. To assign all our trademarks in the area of Online Dating, ("THE
TRADEMARKS", as listed below), Exclusively and perpetually for and on
behalf of MatchNet (Israel) Ltd., a company organized and existing
under the laws of Israel (company number 51-3458273), having its
principal place of business at 22 Maskit St., Herlzelia 46733 Israel
("MATCHNET"), singly. To that end, to apply for the recordal of
transfer of title and ownership, and/or change of name and address and
to take any steps necessary in order to affect the transfer of the
Trademarks to MatchNet.
ii. To act in our name in order to execute and complete all necessary
action to grant of a perpetual, exclusive license to utilize the
Trademarks in the area of Online Dating on the name of MatchNet.
iii. To assign all our trademarks in the area of dating via cellular
phones, ("THE CELLULAR TRADEMARKS") for and on behalf of MatchNet,
jointly with as. To that end, to apply for the recordal of transfer of
title and ownership, and/or change of name and address and to take any
steps necessary in order to affect the transfer of the Cellular
Trademarks to MatchNet, jointly with as.
iv. To act in our name in order to execute and complete all necessary
action to grant of a perpetual, non-transferable, limited,
non-exclusive license to utilize the Cellular Trademarks on the name
of MatchNet.
(2)To apply before the proper Registrar of Domain Names, in Israel and/or any
other state, and/or the Israel Internet Association and/or any other
association, to act in My name in order to execute and complete all necessary
action to assign the domains name "Cupid.co.il" and "cupidon.co.il" and
"kupid.co.il" and "Cupidmail.co.il" and "Cupidonmail.co.il" and
"Kupidmail.co.il" (all: "THE DOMAINS NAMES") for and on behalf of MatchNet.
To that end, the grantee is empowered to apply for the recordal of transfer
of title and ownership, and/or change of name and address and to take any
steps necessary in order to affect the transfer of the domain names to
MatchNet.
1
<PAGE>
Appendix # ____
(3) To apply before the proper Registrar of data bases, in Israel and/or any
other state, to act in My name in order to execute and complete all
necessary action to assign the ownership of all the Database as such term
defined below for and on behalf of MatchNet. To that end, the grantee is
empowered to apply for the recordal of transfer of title and ownership,
and/or change of name and address and to take any steps necessary in order
to affect the transfer of the domain names to MatchNet.
(4) To demand, sue for, collect, and receive all right, money, debts, accounts,
legacies, bequests, interest, dividends, annuities, and demands, as detailed
in the Asset Purchase Agreement between MatchNet (Israel) Ltd. and Point
Match Ltd. dated November 27, 2003 and transfer them to MatchNet, as are now
or shall hereafter become due, payable, or belonging to principal, and take
all lawful means, for the recovery thereof and to compromise the same and
give discharges for the same.
(5) Definitions:
i. "ONLINE DATING" means the provision of services via the Internet or
other interactive media (other than IVR - Interactive Voice Response,
other than data displayed profile), whereby persons can create a
profile (generally a classified ad-type listing populated with data
provided by such person) in a database and search and contact other
persons with profiles in that database, with the intent of meeting
those other persons for romantic relationships.
ii. "DATABASE" means the database containing all of the data of the Members
and Subscribers in the Website (including profiles, pictures and
billing information).
iii. "TRADEMARKS" any of the following:
1. Cupid, word and device in Class 9 Reg. No 149348
2. CUPIDON, word only in class 35 Reg. No 143106
3. CUPIDON, word only in class 42 Reg. No 143107
4. Jcupid, word and device in class 42 Reg. No 149347
In witness whereof, this document is subscribed at ____________________, on the
____ day of the month of ___________, two thousand and three.
For:
2
<PAGE>
EXECUTION COPY
Exhibit 6.9.1A
a signed application to the Trade Mark Registrar to amend the
specifications of all the Trademarks to exclude any use of the
Trademarks by Point Match for Online Dating.
To be attached within 14 days of the Signing.
Page 20 of 31
<PAGE>
EXECUTION COPY
Exhibit 6.9.1B
a Letter of Consent to use and register the Trademark for Online Dating
To be attached within 14 days of the Signing.
Page 21 of 31
<PAGE>
EXECUTION COPY
Exhibit 6.9.2
License to use the Trademarks under the relevant classification for Online
Dating and an application for a license to be filed with the Registrar of
Trademarks
Attached
Page 22 of 32
<PAGE>
EXCLUSIVE TRADEMARK LICENSE AGREEMENT
This Exclusive Trademark License Agreement ("AGREEMENT") is effective as of
the [ ] day of December, 2003 ("EFFECTIVE DATE") and is entered into by and
between:
1. Point Match Ltd. company organized and existing under the laws of
Israel (company number 51-287406-6), having its principal place of
business at Raoul Wallenberg 2, Tel Aviv, Israel ("Point Match"), and
2. MatchNet (Israel) Ltd., a company organized and existing under the
laws of Israel (company number 51-3458273), having its principal place
of business at 22 Maskit St., Herlzelia 46733 Israel ("MatchNet")
WHEREAS
A. Point Match owns and uses the names and/or trademarks and any
applications or registrations therefore as listed on Exhibit A
attached hereto (collectively referred to as the "Marks"), in
connection with its Internet-related services;
B. MatchNet is in the business of offering global online dating services;
C. MatchNet desires to use the trademarks listed in Exhibit A on the
Online Dating area (Online Dating means the provision of services via
the Internet or other interactive media (other than IVR - Interactive
Voice Response, provided, however, that IVR shall not include data
displayed profile), whereby persons can create a profile (generally a
classified ad-type listing populated with data provided by such
person) in a database and search and contact other persons with
profiles in that database, with the intent of meeting those other
persons for romantic relationships);
D. Match Point is willing to permit such use of the Marks under the terms
and conditions set forth in this Agreement.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. GRANT OF LICENSE.
1.1 GRANT OF LICENSE.
1.1.1 Point Match hereby grants to MatchNet an exclusive,
perpetual, non-revocable, non-transferable, world wide
license to use the Marks in the title set forth solely for
use for Online Dating.
1.2 REPRESENTATIONS AND WARRANTIES BY POINT MATCH. Point Match hereby
represents and warrants to MatchNet that it has the right to grant the license
under Section 1.1 and that such grant does not infringe any third parties claims
or rights to the Marks and that the Marks are licensed free and clear of any
liens, encumbrances or any other charges.
1.3 RESERVATION OF RIGHTS. Point Match hereby reserves any and all rights for
the use of the Marks in connection with any goods and services that are not
Online Dating.
2. LICENSE CONSIDERATION. For the rights granted to MatchNet herein, MatchNet
shall pay Point Match the consideration specified in more detail in the Asset
Purchase Agreement the parties have entered into on 27 November 2003 (the
"APA").
Page 1 of 5
<PAGE>
3. USE OF THE MARKS. Point Match agrees and consents to the use and
registration of the Marks by MatchNet under the Point Match's ownership in
classes 9, 35, 43 and 45 anywhere in the world with respect to Online Dating.
The provisions of this paragraph shall survive the expiration or termination of
this Agreement.
4. PROTECTION OF THE MARKS.
4.1 MATCHNET PROPER USE. MatchNet agrees that use of the Marks shall only occur
in connection with the online dating service and shall be in strict compliance
with the terms of this Agreement. MatchNet may use the Marks as set forth in
Section 1.1 as well as in connection with the promotion of the Online Dating
existing in the world. MatchNet may not use the Mark in connection with, or for
the benefit of, any third party's products or services.
4.2 MATCHNET ENFORCEMENT RIGHTS. Point Match hereby grants a non exclusive
right and power of attorney to bring legal proceedings in its own name without
prior notice to Point Match for any infringement of the Marks.
5. [DELETED]
6. TERMINATION
6.1 TERM AND TERMINATION.
This Agreement shall terminate upon one of the following:
(i) Upon MatchNet's safe registration of the Marks in its own name under the
international classification in Israel under classes 9, 35, 42 and 45; or
(ii) MatchNet's written notice sent that MatchNet wish to terminate this
Agreement.
(iii) Upon the issuance of Certificates by the Registrar of Trademarks
confirming the amendments made to the specification of the Marks to
exclude online dating services.
7. GENERAL
7.1 GOVERNING LAW. This Agreement will be interpreted, construed and enforced
in all respects in accordance with the laws of the State of Israel. The Parties
irrevocably consent to the in-personam jurisdiction of the courts for the area
of Tel Aviv-Yafo, and consent to service of process by certified mail at its
respective address or addresses set forth in Section 7.4, below.
7.2 ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement and
understanding between the parties and integrates all prior discussions between
them related to its subject matter. No modification of any of the terms of this
Agreement shall be valid unless in writing and signed by an authorized
representative of each party.
7.3 ASSIGNMENT. MatchNet may assign any of its rights or delegate any of its
duties under this Agreement, or otherwise transfer this Agreement (by merger,
operation of law or otherwise) without the prior written consent of Point Match.
Any attempted assignment, delegation or transfer in derogation hereof shall be
null and void.
8.4 NOTICES. Any notice required or permitted to be delivered pursuant to this
Agreement shall be in writing and shall be deemed delivered: (a) upon delivery
if delivered in person; (b)
Page 2 of 5
<PAGE>
three business days after deposit in registered or certified mail, return
receipt requested, postage prepaid; (c) upon transmission if sent via telecopy,
with a confirmation copy sent via overnight mail, provided that confirmation of
such overnight delivery is received by the sender; (d) one business day after
deposit with a national overnight courier, provided that confirmation of such
overnight delivery is received by the sender; or (e) upon transmission if sent
via e-mail, with a confirmation copy sent via overnight mail same day, provided
that confirmation of such overnight delivery is received by the sender.
NOTICES TO SELLER SHALL BE DELIVERED TO: NOTICES TO PURCHASER SHALL BE DELIVERED TO:
Point Match Ltd MatchNet plc
2 Raoul Wallenberg St. 8383 Wilshire Blvd., Suite 800
Tel Aviv 69719, Israel Beverly Hills, CA 90211 USA
Attn: Zion Madmon or Nadav Palti Attn: Joe Shapira
Fax: 972-3-7684142 Fax: +1 323 836-3333
E-mail: zion@pointmatch.com E-mail: joe@matchnet.com
nadav@mapal.co.il
With a copy to: With a copy to:
Adv. Shy Baranov Eitan Shmueli, Advocates
Zysman, Ahroni, Gayer - Law Office 33 Jabotinsky Street
Hayarkon 52A Ramat Gan, Israel
Tel Aviv 52511 Israel
Fax: 03-8955510 Fax: 03-6128632
E-mail: shyb@zag-law.co.il E-mail: Eitan@shaylaw.co.il
8.5 WAIVER. Any waiver, either expressed or implied, by either party of any
default by the other in the observance and performance of any of the
conditions, covenants of duties set forth herein shall not constitute or be
construed as a waiver of any subsequent or other default.
8.6 HEADINGS. The headings to the Sections and Subsections of this Agreement
are included merely for convenience of reference and shall not affect the
meaning of the language included therein.
8.8 SURVIVAL. The provisions of Section 1.3 (Reservation of Rights), 4
(Ownership of Marks), and 8 (General) will survive any termination of this
Agreement.
8.7 INDEPENDENT CONTRACTORS. The parties acknowledge and agree that they are
dealing with each other hereunder as independent contractors. Nothing contained
in the Agreement shall be interpreted as constituting either party the joint
venture or partner of the other party or as conferring upon either party the
power of authority to bind the other party in any transaction with third
parties.
8.9 ATTORNEY'S FEES. In the event of any action, suit, or proceeding brought
by either party to enforce the terms of this Agreement, the prevailing party
shall be entitled to receive its costs, expert witness fees, and reasonable
attorneys fees and expenses, including costs and fees on appeal.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
POINT MATCH LTD.: MATCHNET [ISRAEL] LTD:
By: By:
----------------------- ------------------------
Page 3 of 5
<PAGE>
Name: Name:
--------------------------- ---------------------------
Title: Title:
--------------------------- ---------------------------
Exhibit A: Licensed Point Match Trademarks
Page 4 of 5
<PAGE>
EXHIBIT A
LICENSED POINT MATCH TRADEMARKS (the "Marks")
Cupid, word and device in Class 9 Reg. No 149348
Cupid, word and device in Class 42 Reg. No 149349
Jcupid, word and device in class 9 Reg. No 149346
Jcupid, word and device in class 42 Reg. No 149347
CUPIDON, word only in class 9 Reg. No 143105
CUPIDON, word only in class 35 Reg. No 143106
CUPIDON, word only in class 42 Reg. No 143107
Page 5 of 5
<PAGE>
EXECUTION COPY
EXHIBIT 6.9.3A
Licence to utilise the Trademarks, together with Seller, in the area
of dating via cellular phones.
To be attached within 14 days of the Signing.
Page 23 of 32
<PAGE>
EXECUTION COPY
EXHIBIT 6.9.3B
An application for the registration of the co-ownership of Seller and
Purchaser in the Trademarks in the Registrar of Trademarks in the area
of dating via cellularphones.
To be attached within 14 days of the Signing.
Page 24 of 32
<PAGE>
EXECUTION COPY
Exhibit 6.10
A Power of Attorney empowering with respect to the Trademarks Registry
Office
See Exhibit 6.8
Page 25 of 32
<PAGE>
EXECUTION COPY
Exhibit 6.11
Assignment forms
To be provided 14 days from signing
Page 26 of 32
<PAGE>
EXECUTION COPY
Exhibit 6.12
An application to the Registrar of Data Bases;
To be attached within 14 days of the Signing.
and
A Power of Attorney in connection with the transfer of the ownership of the
Database.
See Exhibit 6.8
Page 27 of 32
<PAGE>
Execution Copy
Exhibit 6.13
Guarantee from Mapal
Attached
Page 28 of 32
<PAGE>
exhibit #___
__th December 2003
To:
MatchNet (Israel) Ltd.,
22 Maskit St.,
Herlzelia 46733
Israel
Dear Sirs,
Re: LETTER OF GUARANTEE
With regard to the ASSET PURCHASE AGREEMENT, between you and Point Match Ltd
(PM) dated ____ November 2003 (the "APA AGREEMENT"), we hereby agree and
undertake as follows:
1. If either one of the following events occurs during the period of 90 days,
commencing on Closing Date, as defined in the APA Agreement (the "EVENTS"):
i. PM becomes insolvent, or
ii. PM have a receiver or administrator appointed, or
iii. A petition of bankruptcy, voluntarily or involuntarily, will be filed
against PM, and the circumstances giving rise to the filing of such a
petition were not cured within thirty days.
2. And if in consequences of the occurrence of any of the Events, PM will not
be able to execute its obligations under the APA AGREEMENT, we agree and
undertake to defend, indemnify and hold you harmless from and against any
and all damage, claims, costs, expenses, liabilities or losses, including
attorneys' fees and court costs incurred by the occurrence of the Events.
3. In the event payments due under this guarantee are not paid upon demand,
then we shall pay all reasonable costs and solicitors fees necessary for
the collection and enforcement of this guarantee.
4. We warrant and represent that we have full authority to enter into this
guarantee.
5. This guarantee shall be binding upon and inure to the benefit of you, your
successors and assigns.
IN WITNESS whereof we have signed this guarantee on the date and year
first above written
_________________________
Mapal Communications Ltd.
an Israeli company
(company number ________)
1
<PAGE>
EXECUTION COPY
--------------
Exhibit 10.1
Escrow Agreement
Attached
Page 29 of 32
<PAGE>
November 2003
-----
To: Adv. Erez Aharoni, Adv. And/or Adv. Shy Baranov
52A Hayarkon Street
Tel Aviv, Israel
Dear Sirs
Asset Purchase Agreement - Point Match Ltd., and MatchNet (Israel) Ltd.
Escrow Account: Account Number
This letter relates to the Escrow Account referred to in the agreement of the
same date as this letter made between Point Match Ltd. (the "SELLER") and
MatchNet (Israel) Ltd. (the "PURCHASER") (the "AGREEMENT"). Words defined in the
Agreement shall have the same meaning in this letter unless the context
otherwise requires.
1. The Seller and the Purchaser have agreed pursuant to the Agreement that
the Purchaser will pay into a bank account with the bank mentioned in
clause 2(i) below the sum of US$2,000,000 (the "ESCROW AMOUNT") subject to
the terms of this letter. This letter sets out the instructions to you as
Escrow Agent ("ESCROW AGENT") in relation to the Escrow Amount.
2. The Seller and the Purchaser hereby irrevocably instruct you:
(?) to open an interest bearing account at [ ] (the "BANK")
to be designated
' ' ("ESCROW ACCOUNT"); and
-----------------------
(?) upon receipt in the Escrow Account of the Escrow
Amount, to act as Escrow Agent upon the terms set out
in this letter.
3. You shall not deal with the funds held at any time and from time to time
in the Escrow Account including any interest accrued thereon except
pursuant to this letter.
4. You shall instruct the Bank to credit all interest earned from time to
time on the funds held in the Escrow Account to the Escrow Account.
5. The funds credited to the Joint Account from time to time are referred to
in this letter as the "ESCROWED ASSETS".
6. You shall pay the Escrowed Assets as follows:
6.1 To Seller, on the Closing Date, only after receiving from Purchaser;
6.1.1 An executed confirmation from Purchaser that the due diligence regarding
the Due Diligence Representations has been satisfactory; and
6.1.2 An executed confirmation from Purchaser that Seller has delivered all of
its Closing obligations as set forth in Section 6 of the Agreement.
6.1.3 If both documents set forth under Sections 6.1.1 and 6.1.2 are not
received by you, as Escrow Agent, then under no circumstances, unless
directed to by written instructions executed by the Seller
Page 1 of 6
<PAGE>
and the Purchaser, or ordered by a court of competent jurisdiction,
shall you pay any Escrowed Assets to Seller.
6.2 To Purchaser, no later than 7 business days after receipt of a written
request from Purchaser, stating that either:
6.2.1 Seller's Due Diligence Representations were breached; or
6.2.2 Seller has not delivered all of its Closing obligations as set forth in
Section 6 of the Agreement.
6.3 In the event that within such 7 business days you receive a written
notice, from Seller, stating that there is a dispute as to the
occurrence (or non-occurrence) of the conditions set forth in Section
6.2.1 or 6.2.2, then you shall not pay the Escrowed Assets to the
Purchaser unless directed to by written instructions executed by the
Seller and the Purchaser, or ordered to do so by a court of competent
jurisdiction.
6.4 All responsibilities and obligations of the Escrow Agent under the terms
of this Agreement shall terminate at such time as you shall have
delivered to the Seller or the Purchaser the Escrow Amount pursuant to
this Section 6. Such termination of the Escrow Agent's responsibilities
and obligations shall not prejudice in any way or manner the your rights
hereunder.
7. You shall not be bound in any way by any agreement between the Seller and
the Purchaser to which you are not a party (whether or not you have
knowledge of such agreement) nor shall you be bound to enquire into or
examine the merit of any claim or statement by the Purchaser or the
Seller and your only duties and responsibility shall be to hold the
Escrowed Assets and to invest and dispose of them in accordance with the
terms of this letter and any instructions given in accordance with such
letter or as may be ordered by a court of competent jurisdiction.
8. You may (without checking the authority of such signature) rely on and
shall be protected in acting or refraining from acting in accordance
with any written notice, instruction or request furnished to you by the
Purchaser and the Seller if signed on behalf of the Purchaser by any of
the officers whose names and specimen signatures are set out on Exhibit
1 to this letter under the heading "Purchaser's Signatories" and on
behalf of the Seller by any of the persons whose names and specimen
signatures are set out on the annexure to this letter under the heading
"Seller's Signatories", and it shall not be necessary for you to enquire
into the authority of any such signatory.
9. This letter may be modified or amended only with the prior written consent
of the Purchaser and the Seller which modification or amendment shall
take effect accordingly unless the effect of such modification or
amendment is to impose upon either of you any duty, obligation or
liability (whether actual or prospective) to which you would not
otherwise be subject, in which case such modification or amendment shall
also require the consent of each of you. If the Purchaser and the Seller
attempt to change this letter in a manner which either of you, in your
sole discretion, deem undesirable, you may resign as Escrow Agent by
notifying the Purchaser and the Seller in writing; otherwise, you may
resign as Escrow Agent at any time upon 30 days' prior written notice to
the Purchaser and the Seller. The Purchaser and the Seller may remove
you as Escrow Agent at any time upon 30 days' prior written notice to
you signed by them jointly. If you resign or are removed, your only
duty, until a successor Escrow Agent shall have been appointed and shall
have accepted such appointment, shall be to hold, invest and dispose of
the Escrowed Assets in accordance with the provisions of this letter
(but without regard to any notices, requests, instructions or demands
received by you from either or both of the Purchaser and Seller after
your notice of resignation shall
Page 2 of 6
<PAGE>
have been given, unless the same shall be a direction by both the
Purchaser and the Seller that the entire Escrowed Assets be paid or
delivered out of escrow).
10. Any notice required to be given by you shall be in writing and effective
when delivered by messenger, or sent by registered or certified mail, or
facsimile transmission, to the Purchaser or Seller (as appropriate) at
its address for service as specified in the Agreement or such other
address as such person may have furnished to you and to the other party
in writing. Any notice sent or delivered other than by registered or
certified mail shall also be sent by registered or certified mail.
11. Your respective fees as Escrow Agent shall be your standard hourly rate of
charge from time to time for the persons having conduct of the subject
matter of this letter within your organisation plus disbursements
including (without limitation) all bank charges and VAT (if applicable).
Each of the Seller and Purchaser undertakes to pay half of your ongoing
fees and expenses for running the Escrow Account and in connection with
this letter. You shall bill the Seller and Purchaser directly for the
fees and expenses chargeable to it. In case you shall be a party to any
court or arbitration proceedings in connection with this letter
(including in the case when you initiated such proceedings), each of the
Seller and Purchaser shall reimburse you for half of all your legal
expenses, except if you have acted in gross negligence or in bad faith.
It is hereby clarified that in such case you shall be entitled to
nominate Zysman, Aharoni, Gayer & Co to act as your own counsel, and that
Zysman, Aharoni, Gayer & Co. shall be entitled to charge according to
their standard hourly rate.
12. You shall not be liable for any action taken or omitted by you in good
faith and the Seller and the Purchaser jointly and severally undertake to
indemnify you and keep you fully and effectively indemnified on demand
against any loss, damage, cost, expense or liability whatsoever suffered
or incurred by you as a result of you carrying out your functions under
the terms of this letter, except in so far as the same results from your
own gross negligence or bad faith. You shall not be responsible for any
loss to the Escrowed Assets resulting from the investment delivery or
payment thereof in accordance with the terms of this letter. You shall in
no event be obliged to enquire as to the facts or circumstances set out
in any notice sent to you in connection with this letter or the Agreement
or pursuant to its terms and shall be entitled to rely on such facts or
circumstances as set out therein as if they were for all purposes true
and accurate.
13. Each of the Seller and the Purchaser warrant to and agree with you that,
unless otherwise expressly set forth in this letter, (i) there is no
security interest in the Escrowed Assets or any part thereof and (ii) you
shall have no responsibility at any time to ascertain whether any
security interest exists in the Escrowed Assets or any part of the
Escrowed Assets or to produce or file any statement with respect to the
Escrowed Assets or any part of the Escrowed Assets and if at any time any
third party purports to assert an interest in the Escrowed Assets or any
part of the Escrowed Assets you shall be entitled to retain the Escrowed
Assets in the Escrow Account (notwithstanding any other terms of this
letter) pending final resolution of the validity of such third party
interest.
14. The Purchaser and the Seller will provide to you from time to time such
information as you or either of you may reasonably require in connection
with the arrangements the subject of this letter.
15. If any instructions from the Seller and the Purchaser are, in the
reasonable opinion of either of you, manifestly wrong or unclear then you
may withhold making any payment (but you will immediately notify the
relevant person in writing that you have done so and the reason for so
doing) and, in such circumstances, you shall have no liability to the
Seller or the Purchaser by virtue of so doing.
Page 3 of 6
<PAGE>
16. This letter and its validity, construction and performance shall be
governed by the laws of Israel, and the parties irrevocably submit to the
exclusive jurisdiction of the Israeli courts for the area of Tel Aviv-Yafo
and shall be binding upon you and the Purchaser and the Seller and your and
their respective legal representatives, successors and permitted assigns;
provided, that any assignment or transfer by either the Purchaser or the
Warrantors of its rights under this letter or with respect to the Escrowed
Assets shall be void as against both of you unless (a) written notice of
such assignment or transfer, and appropriate documentation indicating the
identity of the assignee or transferee, shall be given to each of you, and
(b) the assignee or transferee shall agree in writing, in form and
substance satisfactory to each of you, to be bound by the provisions of
this letter, and (c) each of you and the other party shall have consented
to such assignment or transfer.
17. Waiver of Conflict. The Purchaser hereby acknowledges that the Seller has
been and continue to be represented by Zysman, Aharoni, Gayer & Co., and by
executing this letter gives its informed written consent to appointing
Zysman, Aharoni, Gayer & Co., as the Escrow Agent under this Agreement.
Please sign and return the copy of this letter in acknowledgement and acceptance
of its terms.
Page 4 of 6
<PAGE>
Yours faithfully
MATCHNET (ISRAEL) LTD. POINT MATCH LTD.
By: By:
------------------------ ------------------------
Joe Y. Shapira, CEO [?]
We accept appointment upon the terms of the above letter.
ZYSMAN, AHARONI, GAYER & CO.
By
------------------------
[ ], Partner
PAGE 5 OF 6
<PAGE>
Exhibit 1
PURCHASER'S SIGNATORIES
----------- -----------
-------------------------
JOE Y. SHAPIRA
SELLER' SIGNATORIES
------- -----------
-------------------------
[]
PAGE 6 OF 6
<PAGE>
EXECUTION COPY
--------- ----
EXHIBIT 11.2
NON-COMPETE UNDERTAKING
ATTACHED
PAGE 31 OF 32
<PAGE>
exhibit # ____
__th November 2003
To:
MatchNet (Israel) Ltd.,
22 Maskit St.,
Herlzelia 46733
Israel
Dear Sirs,
Re: NON-COMPETITION WARRANTY
In consideration for the Purchase Price paid for certain assets by the
Purchaser, as detailed in the ASSET PURCHASE AGREEMENT, dated __ November 2003
(the "APA USA AGREEMENT") we, the undersigned, severally and not jointly, agree
and undertake as follows:
1. Not to compete, directly or indirectly, with you, nor your business and its
successors and assigns, in the area of Online Dating on the Internet that is
targeted for Israelis and/or Jewish users ("THE COMPETITION FIELD") during
and for a period of three (3) years commencing on the Closing Date, unless
otherwise agreed between the Parties or their affiliates in writing.
2. Each of the undersigned, severally, approves that he/it acknowledges and
agrees that because of the worldwide access of the Internet and World Wide
Web, the provisions of this NON-COMPETITION WARRANTY are reasonable with
respect to the scope of restriction, duration and the geographic scope and
are reasonably necessary to protect the value of the Assets which be given
in detail in the APA USA AGREEMENT.
3. By signing on this NON-COMPETITION WARRANTY, we Undertake to avoid from
investing in the Competition Field in excess of 5%, or more, of the
beneficial interest of any company or venture. For the avoidance of doubt,
our obligation above shall not include investing in the Competition Field of
up to 5%, or less, of the beneficial interest of any company or venture, or
investment in any amount in MatchNet, or Mapal's indirect investment of 7.5%
in Ami Channels Ltd.
4. This NON-COMPETITION WARRANTY shall be binding upon and inure to the benefit
of you and us, our successors and assigns.
5. Terms, which are used in this warranty and are not defined, will have the
meaning as in the APA USA AGREEMENT.
________________________ ________________________
Mapal Communications Ltd Madmon Rami
________________________ ________________________
Zion Madmon Nimrod Lev
1
<PAGE>
EXECUTION COPY
--------- ----
EXHIBIT 18
PRESS RELEASE
ATTACHED
PAGE 32 OF 32
<PAGE>
[MATCHNET PLC LOGO]
PRESS RELEASE (NOVEMBER 27, 2003)
MatchNet(R) plc Signs Agreement to Purchase Cupidon.co.il and JCupid.com
LOS ANGELES, CA- MatchNet plc (MHJG: Frankfurt Stock Exchange - Prime Standard),
one of the largest providers of online personals worldwide, today announced that
it had signed agreements with Point Match Ltd., of Tel Aviv, Israel, to purchase
certain assets, including Cupidon(R).co.il, the leading Internet personals
service in Israel, and JCupid(R).com, which is a competitor of MatchNet's
JDate(R).com.
"This deal cements MatchNet's leadership position in the Jewish online
personals market," said Joe Shapira, Chairman and CEO of MatchNet, "and is an
important step in our strategy, is to spread our success in the Jewish
community with JDate and expand it outside the English speaking world."
"JDate is unique in the online personals industry in its market penetration in
the US, "added Shapira," and has provided MatchNet with a solid foundation to
enable the growth of AmericanSingles(R) into one of the world's largest
personals sites. This transaction will allow us to consolidate our base and
expand in both the Jewish and general markets."
ABOUT MATCHNET PLC:
MatchNet plc is one of the world's largest providers of online dating services.
The MatchNet network includes AmericanSingles(R).com, FaceLink(R).com,
MatchNet.de, MatchNet.co.uk, and MatchNet.com.au. In addition, the Company
operates JDate(R).com & JDate.co.il, the dominant Jewish dating services
worldwide; Glimpse(TM).com, & online dating community for relationship-minded
gay men and women; and CollegeLuv(TM).com, an online destination for the
college-age demographic. MatchNet was incorporated in England in 1998. More
information is available at www.MatchNet.com
For More Information:
Media: Gail Laguna
+ 1 323 836 3000 ext. 815
Gail@MatchNet.com
Investors: Elmar Bob
+ 49 69 74 09 37 88
Elmar@MatchNet.com
# # # #
MATCHNET PLC
Registered in England - Company Number 3628907
8383 Wilshire Boulevard, Suite 800 - Beverly Hills, CA 90211 USA
Telephone: + 1 323 836 3000 - Fax: + 1 323 836 3333
<PAGE>
EXECUTION COPY
EXHIBIT 12.1
REPRESENTATIONS
ATTACHED
PAGE 30 OF 32
<PAGE>
CUPID.CO.IL JCUPID.COM
----------- ----------
Number of subscribers with expiration date after 12/25/2003 (as of 11/25/2003) 2,666 1,740
Revenue of May 2003 including vat (Cupid-NIS, Jcupid-$) 557,262 54,737
Number of points in effect (as of 11/26/2003) 32,826
Registered 2/2003-7/2003 (see note1) 144,998 33,912
Revenues 2/2003-7/2003 (see note1) (Cupid-NIS, Jcupid-$) 3,420,939 316,463
AFFILIATES REGISTRATION
Registered through affiliates 2/2003-10/2003 (see note2) 86,071
Registered total 2/2003-10/2003 (see note2) 178,058
Note1: About 9000 profiles were imported to Jcupid on 5/2003
Note2: Since we do not keep deleted profiles in cupid.co.il, the numbers
represented here are lower than the calculation of registered users in the other
table, which was based on member id sequence. However, these numbers
represent accurately the ratio between the total registration number and the
number of registrations through affiliates.
Note3: The data in this spreadsheet is based on the systems' databases as of
November 25, 2003
<PAGE>
Cupid.co.il Jcupid.com
---------------------------------------------------- ---------------------------
03-???? 03-???? 03-???? 03-???? 03-???? 03-????
-------------------------------------------------------------------------------------------------------------------------------
Number of new subscriptions - total 2,723 2,397 2,373 1,085 1,003 1,063
Number of new subscriptions - 1 month 1,570 1,370 1,321
Number of new subscriptions - 3 months 1,032 922 928
Number of new subscriptions - 6 months 121 105 124
Revenue from New Subscriptions (including
SMS) 354,423 312,282 332,547 42,087 40,784 44,254
Number of points purchases 838 840 950
Revenue from Points 56,055 55,830 63,220
Number of renewals 3,607 3,647 3,885 983 987 1,074
Revenue from renewals 233,890 237,460 256,305 19,309 19,347 20,860
Number of sole SMS purchases (not
including SMS purchase as part of
subscription) 240 224 275
Revenue from sole SMS purchases (not
including SMS purchase as part of
subscription) 3,660 3,420 4,385
Revenue from SMS included in new
subscriptions 4,145 4,920 3,400
Revenue from SMS - total 7,805 8,340 7,785
Revenue from Advertising 106,796 81,968 72,846
Number of active subscriptions as of Nov
24, 2003 9,050 3,482
Number of paying points holders 8,556
Number of free subscription as of Nov 24,
2003 17,236 20,988
Number of members with good email address We do not validate emails, so we 41,062
that have subscribed ever do not have absolute number of
good emails. The represented
numbers are of all emails (good
and bad)
Revenue in Checks 9,900
Revenue in Deposits 12,055
Revenue in Cash 360
Note: The data in this spreadsheet is based on the systems' databases as of November 25, 2003
<PAGE>
Cupid.co.il Jcupid.com
03-?????? 03-????? 03-?????? 03-?????? 03-?????? 03-??????
MEMBERSHIP:
Number of new members 25,563 22,721 23,049 4,298 3,980 4,224
Number of registered We do not keep record of 278,897 119,360 122,705 126,366
members at the end of each number of registered users
period in the past, so we can
provide only the number of
registered users as of
current date. The active
database contains records
of members that were
active after January 1,
2003 and members that were
subscribers in the past
regardless if they are
active in 2003. An
inactive database contains
members that were active
in 2002 and not active in
2003.
Number of registered 103,852 none
members in non-active
database
Number of members with We do not validate 225,330 115,730 119,075 122,736
good external email emails, so we do not have
address as of October 31, absolute number of good
2003 emails. The represented
numbers are of all emails
(good and bad)
Number of unique members 86,082 30,017
(including newly
registered members) that
have logged in in October
Number of unique logins in 133,519 44,324
the last 90 days
Number of unique logins in 188,115 63,964
the last 180 days
Number of gay members Information is provided 7,460 2,665
from the active database
and from the inactive
database (see above).
Number of lesbians Information is provided 5,730 1,218
from the active database
and from the inactive
database (see above).
Number of heterosexual Information is provided 105,249 47,699
females from the active database
and from the inactive
database (see above).
Number of heterosexual Information is provided 21,208 11,777
females with photos from the active database
and from the inactive
database (see above).
Number of heterosexual Information is provided 160,458 77,345
males from the active database
and from the inactive
database (see above).
number of heterosexual Information is provided 44,590 16,109
males with photos from the active database
and from the inactive
database (see above).
Number of members under Information is provided 10,240 68
the age of 18 from the active database
and from the inactive
database (see above).
FINANCIAL DATA: (CUPID -
NIS INCLUDING VAT, (CUPID
- $)