EXHIBIT 4.21
EXHIBIT C
To
INVENTORY PURCHASE AGREEMENT
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (the "Agreement"), dated as of January 26, 2007_
is made by and among INTERACTIVE VENDING CORP., a corporation organized under
the laws of the State of Nevada ("Buyer") and uWINK, INC. a corporation
organized under the laws of the State of Utah, ("Seller") and Xxxxx Xxxxxxxx
("Shareholder"). For purposes of this Agreement, Seller, its affiliates and the
Shareholder are collectively referred to together as "Sellers". Sellers and
Buyer are referred to as the "Parties".
RECITALS
A. Pursuant to a License Agreement of even date herewith, Seller has licensed to
Buyer the exclusive worldwide rights to certain of Seller's Intellectual
Property (as defined in such License Agreement), which Buyer intends as of this
date to use in its own business of manufacturing and distributing interactive
vending machines;
B. Shareholder is an officer and shareholder of Seller.
C. The agreement of Sellers not to engage in a Competing Business in accordance
with the terms of this Agreement is valuable and necessary and a condition
precedent to the consummation of the transactions contemplated by the License
Agreement and the accompanying Inventory Purchase Agreement; and
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and the consideration paid by Buyer to Seller under the
License Agreement and the Inventory Purchase Agreement, the receipt and
sufficiency of which is hereby acknowledged by Sellers, and intending to be
legally bound, the Parties hereto hereby agree as follows:
1. DEFINITIONS. In this Agreement, the following terms have the following
meanings unless inconsistent with the context. Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings ascribed to such
terms in the License Agreement,.
"License Agreement" means the License Agreement of even date herewith by and
among Buyer and Seller
"Competing Business" means the designing, manufacturing, distributing, selling,
importing, and/or marketing of interactive vending or interactive vending
software, other than in the restaurant industry if such interactive vending and
its software are integrated into and comprise a necessary and integral part of
the business operations of the restaurant establishment.
An example of a Competing Business hereunder would be an interactive vending
machine(s) placed in a fast food franchise like McDonalds.
Intellectual Property" means the Marks, Invention, Patents and Copyrights, as
those terms are defined in the License Agreement.
"IPA" means the Inventory Purchase Agreement of even date herewith by and among
Buyer and Seller.
"Restricted Period" means the three (3) year period commencing on the Closing
Date in the case of Shareholder and means for as long as Buyer is obligated to
make royalty payments under the License Agreement, in the case of the remaining
Seller uWink, Inc.
2. NON-COMPETITION BY SELLERS
2.1. Sellers each acknowledge that: (i) the agreements and covenants
contained in this Agreement are essential to protect the rights that are being
acquired by Buyer pursuant to the IPA and License Agreement; (ii) Buyer would
not consummate the transactions contemplated by the IPA and the License
Agreement but for such agreements and covenants; and (iii) Sellers have received
substantial consideration from the Buyer in connection with the IPA and the
License Agreement.
2.2 Accordingly, each of Seller and Shareholder, jointly and severally:
(i) covenants, agrees and stipulates that, because of the unique nature of the
technology, the market and the competitive environment in which the Sellers'
Intellectual Property has been exploited and in which Buyer will exploit the
Intellectual Property, any competitive activities by the Sellers from and after
the date of this Agreement in any geographic location throughout the world would
have an adverse effect upon Buyer's use of the Intellectual Property; and (ii)
covenants and agrees that, for the Restricted Period, Sellers shall not,
directly or indirectly, whether or not for and whether or not as an shareholder,
agent, consultant, investor, lender, adviser or employee, at any location
worldwide, in any form or manner (a) engage, for any of Seller's own accounts or
for the account of any affiliate of any of Sellers, in any Competing Business;
(b) except with the prior written consent of Buyer, render any services to, any
Person engaged in a Competing Business, or (c) become interested in any such
Competing Business in any capacity including, without limitation, as a partner,
shareholder, officer, director, principal, agent, or consultant.
2.3 Seller's and Shareholder's covenant hereunder shall be interpreted
as a series of separate covenants for each state of the United States, Mexico,
Canada, and for each nation of each continent outside of North America.
2.4 This agreement shall terminate immediately upon termination of the
License Agreement.
3. ENFORCEMENT
3.1. Injunctive Relief. Sellers each acknowledge and agree that any
breach of any of the provisions of this Agreement by Sellers or any of its
affiliates will cause irreparable injury to Buyer, the exact amount of which may
be difficult or impossible to ascertain, and that money damages would not
provide an adequate remedy to Buyer and, in recognition of this fact, agree that
in the event of such breach or threatened breach, and in addition to any
remedies at law it may have, Buyer, without posting any bond, shall be entitled
to apply in any court of competent jurisdiction for equitable relief in the form
of specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy that may be available.
2.2 Remedies Cumulative. All of the remedies expressly provided for in
this Agreement are cumulative of any and all other remedies that Buyer might
have at law or in equity. In addition to the remedies provided for in this
Agreement, Buyer and any of its affiliates shall be entitled to avail themselves
of all such other remedies as might now or hereafter exist at law or in equity
for compensation and for the specific enforcement of the covenants and
agreements of Sellers contained herein. Resort to any remedy provided for in
this Agreement or by law shall not prevent the concurrent or subsequent use of
any other appropriate remedy or remedies and shall not preclude recovery by
Buyer or any of its affiliates of monetary damages.
2.3. Necessity of Restrictions. The Parties acknowledge and agree that
the covenants and agreements contained in this Agreement have been negotiated in
good faith by the Parties, are reasonable and are not more restrictive or
broader than necessary to protect the interests of the Parties hereto, and would
not achieve their intended purpose if they were on different terms or for
periods of time shorter than the periods of time provided herein or applied in
more restrictive geographical areas than are provided herein. Each Party further
acknowledges that Buyer would not have entered into the License Agreement and
IPA on the date hereof in the absence of the covenants and agreements contained
in this Agreement and that such covenants and agreements are essential to
protect Buyer's business including, but not limited to, the Intellectual
Property licensed by the Buyer as part of the License Agreement.
2.4. Severability of Provisions. Sellers each expressly understand and
agree that although the parties hereto consider the covenants and agreements
contained in this Agreement to be reasonable, if a final judicial determination
is made by a court of competent jurisdiction that either the time restriction or
the territory restriction contained in this Agreement is an unenforceable
provision or restriction against Sellers, the provisions and restrictions of
this Agreement shall not be rendered void but shall be deemed amended to apply
as to such maximum time and territory and to such maximum extent as such court
may judicially determine or indicate to be enforceable. Alternatively, if any
court of competent jurisdiction finds that any provision or restriction
contained in this Agreement is unenforceable, and such provision or restriction
cannot be amended so as to make it enforceable, such finding shall not affect
the enforceability of any of the remaining provisions and restrictions contained
in this Agreement, which remaining provisions and restrictions shall be
severable from the unenforceable provision or restriction and shall remain in
full force and effect.
3. GENERAL
3.1 Modification. This contract may not be modified, altered or amended
in any manner unless such modification, alteration or amendment shall be reduced
in writing and executed by all parties to this Agreement.
3.2 Entire Agreement. This Agreement represents the entire agreement of
the parties hereto and no representations or warranties, express or implied,
have been made by any party, except as contained herein.
3.3 Benefit. This Agreement shall inure to the benefit of and be
binding upon the Parties hereto and their respective successors and assigns;
nothing in this Agreement, express or implied, is intended to confer on any
Person other than the parties hereto and their respective successors and assigns
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
3.4 Counterparts. This Agreement maybe executed simultaneously in one
(1) or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
3.5 Incorporation by Reference. All schedules and exhibits referred to
in this Agreement are by this reference incorporated herein as an integral part
hereof.
3.6 Attorney Fees. In the event that any litigation or other proceeding
is commenced between the Parties, their successors, or assigns concerning the
enforcement or interpretation of any provision of this Agreement or the rights
and duties of any Party in relation thereto, the Party or Parties prevailing in
such litigation, arbitration, or other proceeding shall be entitled, in addition
to such other relief as may be granted, to a reasonable sum as and for attorney
fees which sum shall be determined by the court in such litigation or by
separate legal action brought for that purpose.
3.7 Headings. The headings of this Agreement are for convenience
purposes only, and shall have no effect on its construction or interpretation.
a. 3.8 Waiver; Remedies Cumulative TC. The rights and remedies of the
Parties to this Agreement are cumulative and not alternative. Neither any
failure nor any delay by any Party in exercising any right, power or privilege
under this Agreement or any of the documents referred to in this Agreement will
operate as a waiver of such right, power or privilege, and no single or partial
exercise of any such right, power or privilege will preclude any other or
further exercise of such right, power or privilege or the exercise of any other
right, power or privilege. To the maximum extent permitted by applicable law,
(a) no claim or right arising out of this Agreement or any of the documents
referred to in this Agreement can be discharged by one Party, in whole or in
part, by a waiver or renunciation of the claim or right unless in writing signed
by the other party; (b) no waiver that may be given by a Party will be
applicable except in the specific instance for which it is given; and (c) no
notice to or demand on one Party will be deemed to be a waiver of any obligation
of that party or of the right of the Party giving such notice or demand to take
further action without notice or demand as provided in this Agreement or the
documents referred to in this Agreement. 3.9 Notices. All notices and other
communications to be made pursuant to this Agreement shall be in writing and
shall be deemed to have been duly given on the date of service, if served
personally on the Party to whom service is given, or on the third day after
mailing, if mailed to the Party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid and properly addressed as
follows:
Buyer: Interactive Vending Corporation
0000 Xxxx Xxxx Xxxxxxx Xx.
Xxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
With copies to: Xxxxx X. Xxxxxxxx, Esq.
XXXXXXXX & XXXXXX
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Sellers: UWINK, Inc.
00000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
3.10 Jurisdiction and Venue. The Parties acknowledge and understand
that the making and performing of this Agreement is in Los Angeles CA. Any suit,
arbitrations, mediation or other remedial process shall be filed and maintained
in Los Angeles, CA.
3.11 Interpretation. This Agreement shall be interpreted according to
the laws of the State of California. The Parties agree that each has
participated in the drafting of this Agreement and that any ambiguities shall
not be interpreted against either Party as the drafter hereof.
3.12 Counterparts. This Agreement maybe executed simultaneously in one
(1) or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
3.13 Representation. The firm of Xxxxxxxx & Gilles has represented
Buyer in the negotiations leading to this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first set forth above.
SELLER BUYER
uWINK, Inc., An Utah Corporation INTERACTIVE VENDING CORPORATION,
A Nevada Corporation
By: ___________________________ By: ____________________________
Name: Name: Xxxxxx Xxxxxxxxx
Title. Title: President
SHAREHOLDER
-------------------------------
XXXXX XXXXXXXX
