ASSET PURCHASE AGREEMENT by and between DIGITAL ANGEL CORPORATION and MGT CAPITAL INVESTMENTS, INC. April 10, 2013 TABLE OF CONTENTS

1.2           Interpretation.  Unless the context otherwise requires, the terms defined in Section 1.1 shall have the meanings herein specified for all purposes of this Agreement, applicable to both the singular and plural forms of any of the terms defined herein.  Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.”  The use of the neuter gender herein shall be deemed to include the masculine and feminine genders wherever necessary or appropriate, the use of the masculine gender herein shall be deemed to include the neuter and feminine gender wherever necessary or appropriate and the use of the feminine gender herein shall be deemed to include the neuter and masculine genders wherever necessary or appropriate.

2.1           Conduct of the Business.  During the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Closing:

2.2           Offers of Employment.  At any time prior to, on or after the Closing Date, the Purchaser may offer at-will employment to any of the Employees.  The Purchaser is hereby permitted to hire and offer to hire such Employees effective on or after the Closing Date on such terms and conditions as the Purchaser shall in its sole discretion deem appropriate.  The Employees who accept and commence employment with the Purchaser are hereinafter collectively referred to as the “Transferred Employees.”  DIGA will not take, and will cause each of its Affiliates not to take, any action which would impede, hinder, interfere or otherwise compete with the Purchaser’s effort to hire any Transferred Employees.  The Purchaser shall assume no liability for any obligations of DIGA or any other person to any Employee unless and until such Employee becomes a Transferred Employee, and in that case, only to the extent agreed in writing by the Purchaser.  The parties agree that the failure of any or all Transferred Employees to accept offers of employment with Purchaser shall not constitute a Material Adverse Effect.

 

2.3           Additional Listing Application.  The Purchaser shall promptly, and in any event no later than April 15, 2013, file an Additional Listing Application with the NYSE MKT (“NYSE MKT”) with respect to the MGT Shares.

3.1           Purchase and Sale of Purchased Assets.  Upon the terms and subject to the conditions set forth herein, effective as of the Closing, DIGA hereby irrevocably sells, assigns, grants, transfers and delivers to the Purchaser and its successors and assigns, and the Purchaser hereby accepts, free and clear of all Liens whatsoever, the Purchased Assets (the “Asset Purchase”).  The “Purchased Assets” shall mean the following:

3.3           Cash Payment; Issuance of Common Stock.  At the Closing, in connection with the Asset Purchase described in Section 3.1 above, the Purchaser shall (i) pay to DIGA in cash an amount equal to $136,630 (the “Cash Payment”) and (ii) issue to DIGA 50,000 shares of Common Stock in the Purchaser (the “MGT Shares”).  The stock certificates representing the MGT Shares shall bear a legend stating that they have not been registered under the Securities Act of 1933, as amended (the “Securities Act”), and such other restrictions described in Section 6.4(d) hereof.

3.4           Purchase Price; Allocation of the Purchase Price.  The purchase price for the Purchased Assets shall be the sum of the Cash Payment and the value of the MGT Shares issued to DIGA pursuant to Section 3.3 (which value shall be determined by multiplying (i) the closing price on the NYSE MKT of shares of MGT Common Stock on the day prior to the Closing Date by (ii) 50,000) (the “Purchase Price”).  The Purchase Price shall be allocated in accordance with Schedule 3.4, to be provided by Purchaser to DIGA within 30 days of the Closing Date.  Each of DIGA and the Purchaser shall report the purchase and sale of the Purchased Assets for all tax purposes in a manner consistent with such allocation, and neither of them shall take a position inconsistent with such allocation on any tax return, before any taxing authority or in any judicial proceeding that is, in any manner, inconsistent with such allocation without the consent of the other unless specifically required pursuant to a determination by an applicable taxing authority.

4.1           Closing.  Unless this Agreement is earlier terminated in accordance with Section 4.5, the closing of the transactions contemplated by this Agreement (the “Closing”) shall take place on April 30, 2013, or on such earlier date when each of the conditions set forth in this Article 4 have been satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), or at such other time as the Parties may agree (the “Closing Date”).  The Closing shall take place at the offices of Dickstein Shapiro LLP located at 1633 Broadway, New York, NY or at such other location as the Parties hereto agree.

4.4           Effect of Closing.  All transactions contemplated herein and by the other Transaction Agreements to occur on and as of the Closing Date shall be deemed to have occurred simultaneously and to be effective as of the close of business on the Closing Date; provided, however, that none of such transactions shall be deemed to have occurred unless and until all of the conditions to closing described in Section 4.2 and each of the deliverables and actions referenced in Section 4.3 shall have been delivered and taken in accordance therewith.

4.5           Termination.  At any time prior to the Closing, this Agreement may be terminated and the transactions contemplated hereby abandoned by authorized action taken by the terminating Party:

4.6           Effect of Termination.  In the event of termination of this Agreement as provided in Section 4.5, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of the Purchaser, DIGA, or their respective officers, directors, stockholders or Affiliates; provided, however, that (a) the provisions of this Section 4.6 (Effect of Termination), Section 7.2 (Public Announcements), Section 7.3 (Confidentiality), and Article 9 (Miscellaneous) shall remain in full force and effect and survive any termination of this Agreement, (b) nothing herein shall relieve any Party hereto from liability in connection with any breach of such Party’s representations, warranties or covenants contained herein, and (c) if (i) MGT shall terminate this Agreement for any reason other than pursuant to Section 4.5(a), 4.5(c) or 4.5(d), then MGT shall be obligated to pay to DIGA the Cash Payment, and (ii) if DIGA shall terminate this Agreement for any reason other than pursuant to Section 4.5(a), 4.5(c) or 4.5(e), then DIGA shall be obligated to pay to MGT all expenses incurred by MGT in connection with the Asset Purchase.

5.           REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.  The Purchaser hereby represents and warrants to DIGA as follows:

5.1           Incorporation; Authority.  The Purchaser (i) is a duly incorporated and validly existing corporation in good standing under the laws of the State of Delaware and is duly qualified as a foreign corporation in any other jurisdiction in which it does business; and (ii) has all requisite power and authority to own, lease and operate the Purchased Assets and to carry on its business as presently conducted and to execute, deliver and perform its obligations under this Agreement and each other Transaction Agreement to which the Purchaser is a party.

 

5.2           Execution; Validity of Agreement; Due Authorization. This Agreement and each other Transaction Agreement to which the Purchaser is a party has been duly executed and delivered by the Purchaser and this Agreement and each other Transaction Agreement to which the Purchaser is a party constitutes a legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its respective terms.  The execution and delivery of this Agreement by the Purchaser and the performance by the Purchaser of its obligations hereunder have been duly authorized by all necessary corporate action on the part of the Purchaser.

5.3           Consents and Approvals; No Violations.  Except as set forth in Schedule 5.3, none of the execution, delivery or performance of this Agreement or any other Transaction Agreement by the Purchaser, the consummation by the Purchaser of the transactions contemplated hereby or thereby, or the compliance by the Purchaser with any of the provisions hereof or thereof will (a) require (i) any filing with or notice to any Governmental Authority or other Person, (ii) the obtaining of any Permit or (iii) the expiration or termination of any statutory or regulatory waiting period, (b) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration or require any payment) under, any of the terms, conditions or provisions of any material note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which the Purchaser is a party or by which the Purchaser or any of the Purchaser’s properties or assets is bound, (c) violate any Applicable Laws, or (d) result in the creation of any Lien upon any of the Purchased Assets.

5.4           MGT Shares.  The MGT Shares, when issued and paid for in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and nonassessable securities of the Purchaser.

5.5           Broker’s Fee.  No agent, broker, investment banker, firm, or other Person, acting on behalf of the MGT Parties or any of their Affiliates, or under the authority of the MGT Parties or any of their Affiliates, is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee or expense, directly or indirectly, in connection with any of the transactions contemplated by this Agreement or any of the other Transaction Agreements.

6.1           Incorporation; Authority.  DIGA (i) is a duly incorporated and validly existing corporation in good standing under the laws of the State of Delaware and is duly qualified as a foreign corporation in any other jurisdiction in which it does business; and (ii) has all requisite power and authority to own, lease and operate its property and to carry on its business as presently conducted and to execute, deliver and perform its obligations under this Agreement and each other Transaction Agreement to which DIGA is a party.  A true and correct copy of the Certificate of Incorporation of DIGA, as amended to date, has been delivered to MGT and is in full force and effect as of the date hereof.

 

6.2           Execution; Validity of Agreement; Due Authorization. This Agreement and each other Transaction Agreement to which DIGA is a party has been duly executed and delivered by DIGA and this Agreement and each other Transaction Agreement to which DIGA is a party constitutes a legal, valid and binding obligation of DIGA, enforceable against DIGA in accordance with their respective terms.  The execution and delivery of this Agreement by DIGA and the performance by DIGA of its obligations hereunder have been duly authorized by all necessary corporate action on the part of DIGA.

6.3           Consents and Approvals; No Violations.  Except as set forth on Schedule 6.3, none of the execution, delivery or performance of this Agreement or any other Transaction Agreement by DIGA, the consummation by DIGA of the transactions contemplated hereby or thereby, or the compliance by DIGA with any of the provisions hereof or thereof will (a) require (i) any filing with or notice to any Governmental Authority or other Person, (ii) the obtaining of any Permit or (iii) the expiration or termination of any statutory or regulatory waiting period, (b) result in a violation or breach of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration or require any payment) under, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement or other instrument or obligation to which DIGA is a party or by which DIGA or any of DIGA’s properties or assets is bound, (c) violate any Applicable Laws, or (d) result in the creation of any Lien upon any of the Purchased Assets.

6.6           Litigation.  Except as set forth on Schedule 6.6 hereto, there are no actions, lawsuits, judgments, claims, investigations or legal or administrative proceedings, pending or threatened against DIGA.  There is no judgment, order, injunction, decree or award (whether rendered by a court, administrative agency or by arbitration) to which DIGA is a party.

6.8           Contracts. Schedule 6.8 contains a complete and correct list of all contracts, agreements and commitments, whether written or oral, of DIGA used in the business of developing video games.  DIGA has previously delivered to Purchaser a correct and complete copy of each written agreement and contract of DIGA (as amended to date) and a written summary setting forth the material terms and conditions of each oral agreement of DIGA.  Each such agreement is legal, valid, binding, enforceable, and in full force and effect; no party is in breach or default under such agreements, and no event has occurred which with notice or lapse of time would constitute a breach or default of such agreements, or permit termination, modification, or acceleration, under such agreements.  Each such agreement will continue to be legal, valid and binding, enforceable and in full force and effect on identical terms following the consummation of the transactions contemplated hereby.

 

6.9           Bankruptcy. None of DIGA or any U.S. Affiliate of DIGA has committed or currently intends to commit any act of bankruptcy, is insolvent, has proposed or currently intends to propose a compromise or arrangement to its creditors generally, has had or currently intends to have any petition for a receiving order in bankruptcy filed against it, has made or currently intends to make a voluntary assignment in bankruptcy, has initiated or currently intends to initiate any proceeding with respect to a compromise or arrangement, has initiated or intends to initiate any proceeding to have itself declared bankrupt or wound-up, has initiated or intends to initiate any proceeding to have a receiver appointed to any part of its assets, has had any creditor take or currently anticipates that any creditor will take possession of any of its property, or has had any of the foregoing become enforceable or currently anticipates that any of the foregoing will become enforceable upon any of its property or the Purchased Assets.

6.10           Consents and Approvals.  No Consents or notices to, or filings, registrations, or qualifications with any Person or Governmental Authority and no Consents or waivers from, or notices to, any other party are required for the consummation by DIGA of the transactions contemplated by this Agreement and the other Transaction Agreements.

6.11           Broker’s Fee.  No agent, broker, investment banker, firm, or other Person, acting on behalf of DIGA or any of its Affiliates, or under the authority of DIGA or any of its Affiliates, is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee or expense, directly or indirectly, in connection with any of the transactions contemplated by this Agreement or any of the other Transaction Agreements.

6.12           Material Disclosure; No Omission.  No representation or warranty of DIGA contained in this Agreement or in any other Transaction Agreement and no statement by or on behalf of DIGA contained in any exhibit, certificate, schedule, attachment or other instrument specified in this Agreement or in any other Transaction Agreement contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements contained herein or therein not misleading.

7.1           DIGA Noncompete and Non-Solicit.  From and for four (4) years after the Closing Date, DIGA will not, directly or indirectly: (a) own, manage, operate, join, control, or be connected in any manner with any business or activity which is competitive with the business of developing, marketing and selling video games, as conducted by DIGA immediately prior to the Closing (and as said business may evolve in the ordinary course thereafter), or (b) cause or encourage any Transferred Employee or to discontinue their relationship with the Purchaser.

7.2           Public Announcements.  DIGA shall not issue any press release or other public statement with respect to this Agreement or the transactions contemplated hereby without the prior approval of MGT, except as disclosure may be required by law.  MGT shall use commercially reasonable efforts to consult with DIGA before issuing any press release or other public statement with respect to this Agreement or the transactions, except as may be required by Applicable Law.

 

7.3           Confidentiality.  Except for any press release or public announcement previously issued or issued in accordance with Section 7.2, all terms of this Agreement, the other Transaction Agreements and the transactions contemplated hereby and thereby shall remain confidential, except as disclosure may be required by law.  No Party hereto shall disclose to anyone the negotiations, any information concerning the contemplated transactions, or anything contained herein, except to their accountants, employees, bankers and attorneys in connection with the transactions contemplated by this Agreement, without the approval of the other Parties.  DIGA agrees that from and after the Closing Date, DIGA will, and will cause its Affiliates to, keep secret and retain in the strictest confidence, and will not use for the benefit of itself or others, any proprietary information with respect to the Purchased Assets.

7.4           Further Assurances.   The Purchaser and DIGA shall, at any time and from time to time after the date hereof, do or to cause to be done all such further acts, and to execute, acknowledge, deliver and file, or cause to be executed, acknowledged, delivered or filed, all such deeds, transfers, conveyances, assignments or assurances as may be reasonably requested by another Party for: (i) transferring, conveying and assigning the Purchased Assets to the Purchaser; and (ii) otherwise effectuating the transactions contemplated by this Agreement.  To the extent related to the Purchased Assets, the Purchaser and DIGA shall, at any time and from time to time after the date hereof, provide such information or documentation as is reasonably requested by another Party in connection with completing any tax returns or audits.

7.5           Legend Removal.  MGT shall use commercially reasonable efforts to cause its transfer agent to issue certificates without the legend referenced in Section 3.3: (i) in connection with a sale of the MGT Shares by DIGA after the required holding period under Rule 144 of the Securities Act has expired, in compliance with Rule 144, or (ii) in the event the MGT Shares have been registered under the Securities Act, upon a resale of the MGT Shares pursuant to an effective registration statement.  MGT agrees to use commercially reasonable efforts to maintain its listing status with the NYSE MKT.  MGT agrees to use commercially reasonable efforts to cooperate with DIGA in connection with any resales of the MGT Shares pursuant to Rule 144 after the applicable holding period under Rule 144 has expired.

8.1           Survival of Representations, Warranties and Covenants.  Each statement contained in any exhibit, schedule, or certificate delivered pursuant to this Agreement constitutes a representation and warranty by the Person who delivered it or on whose behalf it was delivered.  All representations and warranties set forth or made in this Agreement and any other Transaction Agreement shall survive the Closing indefinitely.  All covenants and agreements of the Parties set forth in this Agreement and the other Transaction Agreements to be performed after the Closing shall survive the Closing in accordance with their respective terms.  Any claim pending on the expiration date of any applicable survival period for which a notification of claim has been made pursuant to Section 8.4 below on or before such expiration date may continue to be asserted and indemnified against until finally resolved.

 

8.2           Indemnification Obligations of DIGA.  DIGA agrees to indemnify, defend and hold harmless MGT and its shareholders, officers, directors, managers, representatives, agents, employees and Affiliates (collectively, the “MGT Indemnitees”) from and against any claim, suit, action, liability, loss, damage, deficiency, fee, cost or expense of any nature whatsoever (including, without limitation, any diminution in value of any shares of Common Stock and any interest, penalties, investigation expenses and fees through trial and appeals, and disbursements of counsel and accountants, but excluding incidental, consequential, special, or punitive and treble damages) (collectively, “Losses”) arising out of, based upon or resulting from: (i) the breach of any representation or warranty of DIGA which is contained in this Agreement, any other Transaction Agreement or any exhibits or schedules hereto or thereto; (ii) any breach or failure to perform any of the covenants, agreements or undertakings of DIGA contained in this Agreement, any other Transaction Agreement or any exhibit or schedule hereto or thereto; (iii) the matters set forth on any Schedules delivered pursuant to Article 5.5 hereof; (iv) any claims by Transferred Employees for compensation or benefits or other matters under an Employee Plan accrued prior to the Closing Date and any claims of any nature whatsoever (whether accruing before or after Closing) by any Employee who is not hired by the Purchaser; (v) any failure to comply with any “bulk sales,” “bulk transfer” or similar laws of any State, if applicable, (vi) any and all costs and expenses (including reasonable legal and accounting fees) incident to the enforcement of the indemnification rights of the MGT Indemnitees under this Section 8.2.

8.3           Indemnification Obligations of MGT.  MGT agrees to indemnify, defend and hold harmless DIGA and its shareholders, officers, directors, managers, representatives, agents, employees and Affiliates (collectively, the “DIGA Indemnitees”, and, together with the MGT Indemnitees, the “Indemnitees”) from and against any Losses arising out of, based upon or resulting from: (i) the breach of any representation or warranty of MGT which is contained in this Agreement, any other Transaction Agreement or any exhibits or schedules hereto or thereto; (ii) any breach or failure to perform any of the covenants, agreements or undertakings of MGT contained in this Agreement, any other Transaction Agreement or any exhibits or schedules hereto or thereto; and (iii) any and all costs and expenses (including reasonable legal and accounting fees) incident to the enforcement of the indemnification rights of the DIGA Indemnitees under this Section 8.3.

8.4           Notification of Claims. In the event that any Party asserts a claim for indemnification hereunder, such Party shall (a) provide the indemnifying Party (“Indemnifying Party”) with prompt written notice of the nature of such claim (an “Indemnification Notice”), (b) make available to the Indemnifying Party all relevant information which is material to the claim and which is in the possession of the Indemnitee and (c) otherwise reasonably cooperate with the Indemnifying Party with respect to such claim; provided, however, that the failure of an Indemnitee to deliver an Indemnification Notice under this Section 8.4 shall not relieve the Indemnifying Party of its indemnification obligations under this Article 8 unless and only to the extent that such Indemnifying Party is materially prejudiced by such failure.

8.5           Investigation.  The right to indemnification, payment of Losses or any other remedy based on the representations, warranties and the covenants hereunder will not be affected by any investigation conducted with respect to, or any knowledge acquired, or capable of being acquired at any time, whether before or after the Closing Date, with respect to the accuracy or inaccuracy of, or compliance with, any such representation, warranty or covenant.  Furthermore, no information or knowledge obtained in any investigation pursuant this Agreement or any other Transaction Agreement shall affect or be deemed to modify any representation, warranty or covenant contained herein or therein.

 

8.6           Third-Party Claims.           The obligations and liabilities of an Indemnifying Party under this Article 8, with respect to Losses resulting from a claim brought by any third party (a “Third-Party Claim”) shall be subject to the following terms and conditions:

9.1           Costs and Attorney’s Fees.  The Parties agree that in the event it becomes necessary for any Party to institute litigation or obtain the services of an attorney in order to enforce its rights under the provisions of this Agreement, then, in that event, the prevailing Party as determined by a court of competent jurisdiction, may be awarded reasonable attorney’s fees and costs expended in pursuit of such litigation, including appellate litigation.

9.2           Disclaimer of Warranties.  Except for the representations and warranties of DIGA expressly set forth in this Agreement, DIGA is not making any representation or warranty whatsoever, express, implied, at common law, statutory or otherwise and MGT is relying on its own examination of the Purchased Assets.  Without limiting the generality of the foregoing and except for the representations and warranties expressly set forth in this Agreement, MGT understands and agrees that DIGA expressly disclaims any representation or warranty of merchantability, usage, suitability or fitness for any particular purpose with respect to the Purchased Assets or any part thereof, or as to the workmanship thereof or the absence of any defects therein, whether latent or patent.

 

9.3           Notices.  All notices, requests, claims, demands, waivers, instructions, documents and other communications to be given pursuant to this Agreement shall be in writing and shall be delivered personally, faxed, or sent by nationally-recognized overnight courier to a Party at the address set forth below for such Party or to such other address as the Party to whom notice is to be given may have furnished to the other Parties hereto in writing in accordance herewith.  Any such notice or communication shall be deemed to have been delivered and received (a) in the case of personal delivery, on the date of such delivery, (b) in the case of faxing, on the date sent (or on the first Business Day following the date sent if the date sent is not a Business Day) if confirmation of successful transmission is received, and (c) in the case of a nationally-recognized overnight courier, on the first Business Day after the date when sent for overnight delivery:

9.4           Entire Agreement.   This Agreement (including the exhibits and schedules hereto), and the other Transaction Agreements constitute the entire agreement among the Parties with respect to the subject matter hereto and supersede all prior agreements and understandings, both oral and written, among the Parties with respect to the subject matter of this Agreement.

 

9.6           Binding effect.  This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, personal representatives, successors and permitted assigns.  This Agreement may not be assigned by any Party hereto without the prior written consent of the other Parties, which consent may be withheld at the discretion of each Party whose consent is requested and any purported assignment, unless so consented to, shall be void and without effect.

9.7           Waivers and Amendments.  This Agreement may be amended, superseded, cancelled, renewed or extended, and the terms hereof may be waived, only by a written instrument signed by the Parties hereto or, in the case of a waiver, by the Party waiving compliance.  Any Party may waive any misrepresentation by any other Party, or any breach of warranty by, or failure to perform any covenant, obligation or agreement by any other Party, provided that mere inaction or failure to exercise any right, remedy or option under this Agreement, or any delay in exercising the same, will not operate as nor shall be construed as a waiver, and no waiver will be effective unless set forth in writing and only to the extent specifically stated therein, and no single or partial exercise of any such right, power or privilege will preclude any further exercise thereof or the exercise of any such right, power or privilege will preclude any further exercise thereof or the exercise of any other such right, power or privilege.

9.8           Recitals, Exhibits and Schedules.  The recitals to this Agreement and all exhibits and schedules attached hereto are hereby incorporated by reference into, and made a part of, this Agreement.

9.9           Headings.  The descriptive headings in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

9.10         Severability.  If any provision of this Agreement is determined to be illegal or unenforceable, such provision will be deemed amended to the extent necessary to conform to Applicable Law, or, if it cannot be so amended without materially altering the intention of the Parties, it will be deemed stricken and the remainder of this Agreement will remain in full force and effect.

 

9.11           Specific Performance.  Each of the Parties hereto acknowledges and agrees that the other Parties hereto would be irreparably damaged in the event any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that there would be no adequate remedy at law or in monetary damages to compensate for any such breach.  Accordingly, each Party hereto agrees that, in addition to any remedy to which such Party may be entitled at law or in equity, they each shall be entitled to injunctive relief to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, in each case without being required to post a bond or other security.

9.12           Fees and Expenses.  Subject to Section 9.1, DIGA and MGT shall each pay their own expenses incidental to the preparation and negotiation of this Agreement and the consummation of the transactions contemplated hereby.

9.13           Legal Representation of the Parties.  Each of the Parties hereto has had the opportunity to have its own legal counsel independently advise such Party with respect to the transactions contemplated by this Agreement and the other Transaction Agreements.  The Parties expressly agree that the language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their mutual intent, and no provision of this Agreement should be construed against or interpreted to the advantage of any Party hereto by reason of such Party or its legal counsel having drafted or participated in the drafting thereof.

9.14           Payment of Transfer Costs and Expenses.  All stamp, transfer, documentary, sales, use, bulk, registration and other such Taxes and fees (including penalties and interest) which may be imposed in any jurisdiction in connection with, or arising from any of the transactions set forth herein shall be paid by the Purchaser.

9.15           No Third Party Beneficiaries.  This Agreement is solely for the benefit of the Parties hereto and their successors and permitted assigns and, except with respect to the rights of the MGT Indemnitees and DIGA Indemnitees under Article 8, this Agreement shall not be deemed to confer upon any third party any remedy, claim, reimbursement or other right in addition to those which may exist without regard to this Agreement.

9.16           Counterparts; Signatures.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together will constitute one and the same instrument.  This Agreement and any amendments hereto, to the extent executed and delivered by means of a facsimile machine or e-mail of a PDF file containing a copy of an executed agreement (or signature page thereto), shall be treated in all respects and for all purposes as an original agreement or instrument and shall have the same binding legal effect as if it were the original signed version thereof.