MUTUAL TERMINATION, RELEASE AND AGREEMENT
EXHIBIT 10
THIS MUTUAL TERMINATION, RELEASE AND AGREEMENT, made this 12th day of February, 2007 (this
“Agreement”), by and between Wireless Ronin Technologies, Inc., a Minnesota corporation (“WRT”),
and The Xxxxxxxx Special Assets Group, Inc., a Delaware corporation (“Xxxxxxxx”).
WHEREAS, WRT and Xxxxxxxx entered into a Strategic Partnership Agreement, dated as of May 28,
2004, as amended on September 29, 2004 and October 6, 2004 (the “Partnership Agreement”); and
WHEREAS, WRT and Xxxxxxxx desire to terminate the Partnership Agreement, provide for mutual
releases and set forth certain other agreements on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants, provisions and agreements made in
this Agreement, the parties hereto agree as follows.
1. Termination of Partnership Agreement. WRT and Xxxxxxxx hereby terminate the
Partnership Agreement, and each party waives any right to prior written notice of termination.
2. Termination Payment. On the date hereof, WRT will transfer cash to Xxxxxxxx in an
aggregate amount equal to the sum of (i) $500,000 and (ii) $153,994.52 (representing a return of
12% per annum accrued through the date hereof on amounts previously paid by Xxxxxxxx to WRT, as set
forth on Schedule A), in consideration of the termination of all of Xxxxxxxx’x rights under
the Partnership Agreement and in full satisfaction of any further obligations to Xxxxxxxx under the
Partnership Agreement.
3. Definitions. The defined terms used in this Agreement shall have the meanings
designated below or as set forth elsewhere herein:
(a) “End User” shall mean all customers, distributors or resellers who
purchase the WRT hardware and software to be used exclusively for the ultimate operation of
or use in a Lottery. “Lottery” means any lottery operated by any individual, entity,
governmental entity (including without limitation a state, provincial or national government
or any subdivision or authority thereof), Native American Sovereign Nation or Tribal
Community or any individual or other entity which provides infrastructure or technical
services with respect to any lottery, located anywhere in the world.
(b) “Gross Software Sales” shall mean the total amount of the Selling Prices
for all sales of the WRT Software to End Users.
(c) “Gross Hardware Sales” shall mean the total amount of the Selling Prices
for all sales of the WRT Hardware to End Users.
(d) “Selling Prices” shall mean the invoice price charged by WRT to an End
User, less the sum of actual discounts; sales or use taxes, tariff, import/export duties, or
other excise taxes; insurance and transportation charges; and bona fide allowances or
credits to End Users because of rejections or returns, all as shown on the invoice to an End
User. If a sale is made to a distributor or a reseller, then the Selling Price shall be the
such invoice price to the distributor or reseller.
(e) “WRT Hardware” shall mean the hardware sold to an End User to support and
use RoninCast Software at a particular installation.
(f) “WRT Software” shall mean software developed by WRT for the RoninCast®
system sold to an End User.
4. Other Payments.
(a) Gross Software Sales. WRT will pay to Xxxxxxxx 30% of all Gross Software
Sales collected by WRT on or before the fifth anniversary of this Agreement. Such payments
will be due and payable by WRT to Xxxxxxxx within ten (10) days following the month end of
receipt of amounts collected from the End User including amounts collected after the fifth
anniversary of this Agreement which were billed prior to such anniversary date.
(b) Gross Hardware Sales. WRT will pay to Xxxxxxxx 2% of all Gross Hardware
Sales collected by WRT on or before the fifth anniversary of this Agreement. Such payments
will be due and payable by WRT to Xxxxxxxx within ten (10) days following the month end of
receipt of amounts collected from the End User, including amounts collected after the fifth
anniversary of this Agreement which were billed prior to such anniversary date.
(c) Minimum Annual Payment. If applicable, within ten (10) days following
each of the first, second and third anniversaries of the date hereof, WRT shall make a
minimum annual payment to Xxxxxxxx in an amount equal to $50,000, less the aggregate amounts
paid or payable to Xxxxxxxx under Sections 4(a) and 4(b) for the twelve month period ending
on the applicable anniversary date.
(d) Test Installation Expenses. WRT and Xxxxxxxx shall each be responsible
for 50% of all costs and expenses incurred by WRT related to any test installations
involving sales or prospective sales to an End User. For the purposes of this section,
“costs and expenses” include costs and expenses incurred prior to customer acceptance, of a
test installation of the RoninCast system at the customer’s site including, but not limited
to: (i) the salary cost of WRT or Xxxxxxxx personnel directly involved in the test
installation project, including services for custom programming and development of the test
system; (ii) equipment and parts (whether from WRT’s inventory or specially purchased from
third parties); (iii) amounts paid to vendors for services and software to install, conduct
and maintain test installations; (iv) costs of transportation, shipping, insurance, sales,
use or excise taxes and related charges; and (v) travel, food and lodging of contractors and
WRT personnel related to the forgoing. WRT will prepare a budget (including any items to be
considered from Xxxxxxxx) of anticipated costs and expenses which shall be approved by both
parties prior to any expenditures by either party.
5. Mutual Release. WRT and Xxxxxxxx for themselves, their successors, affiliates and
assigns do mutually agree to, and hereby do, unconditionally release, acquit and forever discharge
each other and their respective officers, directors, representatives, present and former employees,
parent companies, subsidiaries, related and affiliated entities, successors and assigns from all
damages, actions or causes of action, claims or demands, of every kind, at law or in equity and
howsoever originating and existing from the beginning of time to the date hereof relating to or
arising out of the Partnership Agreement and any and all related agreements, with the exception
only of this Agreement, and any and all transactions contemplated thereby and any and all actions
taken in connection with any of the aforesaid agreements. The parties hereto further agree not to
institute, encourage or assist any lawsuit or other action regarding any matter which has been
released hereby and agree that any violation of this covenant shall constitute a breach of this
Agreement and shall entitle the party released hereby to any damages caused by the breach, together
with reasonable attorneys’ fees incurred in defending or otherwise responding to said suit or
claim, but it shall not invalidate the releases given.
6. Successors and Assigns. Each of the parties hereto makes the mutual promises and
agreements set forth in this Agreement on behalf of themselves and their successors and assigns and
this Agreement shall operate for the benefit of their successors and assigns.
7. Severability. In case any provisions of this Agreement are invalid, illegal or
unenforceable in any respect, the validity, legality or enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
8. Section Headings. The section headings used herein are for convenience of
reference only, are not part of this Agreement and shall not be taken into consideration in
interpreting this Agreement.
9. Governing Law. This Agreement shall be deemed to be a contract made under the laws
of the State of Minnesota and for all purposes shall be governed by and constituted in accordance
with the laws of such state applicable to contracts made and to be performed entirely within such
state.
10. Entire Agreement. This Agreement contains the entire agreement and understanding
between the parties and supersedes all prior agreements, written or oral.
11. Counterparts. This Agreement may be executed in counterparts, each of which shall
be deemed to be an original, but all of which shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective
officers thereunto duly authorized, as of the day and year first above written.
| WIRELESS RONIN TECHNOLOGIES, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxx | |||||
| Name: Xxxxxxx X. Xxxx | ||||||
| Title: Chairman, President and CEO | ||||||
| THE XXXXXXXX SPECIAL ASSETS GROUP, INC. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: Xxxxx X. Xxxxxxxx | ||||||
| Title: President | ||||||
SCHEDULE A
| Accrued interest through | ||||||||
| Date | Amount | February 12, 2007 | ||||||
May 28, 2004
|
$ | 300,000 | $ | 97,643.84 | ||||
October 8, 2004
|
$ | 200,000 | $ | 56,350.68 | ||||
