EXHIBIT 4.19
INVENTORY PURCHASE AGREEMENT
THIS INVENTORY PURCHASE AGREEMENT ("IPA" or "Agreement") is dated as of January
26, 2007 by and between Interactive Vending Corporation, a Nevada Corporation,
("Buyer") and uWink, Inc. an Utah corporation ("Seller"). Buyer and Seller are
collectively referred to as the "Parties".
The Parties agree as follows:
1. DEFINITIONS
"Machine" means any Bear Express interactive vending machine whether assembled
and completed, or the aggregation of all components, including without
limitation the proprietary software and parts necessary to complete the Machine
so that Buyer can make it fully functional and merchantable for the United
States market;
"Completion" means all actions reasonably taken by Buyer to render any Machine
fully functional and merchantable for the United States market,
"Information" means all data and records related to the Bear Express Machines
and Products, including client and customer lists and records, referral sources,
operating guides and manuals, software codes, creative materials, advertising
materials, promotional materials, studies, reports, correspondence and other
similar documents and records
"Inventory" means the Products and Machines.
"Products" means all of Seller's inventories of Bear Express products besides
the Machines. Products include plush skins, accessories, point of sale systems
and storage and display units.
2. PURCHASE AND SALE.
2.1 Seller sells and Buyer purchases approximately thirty-eight (38)
Machines as well as the Products and Information. Buyer assumes no obligations
or liabilities of Seller of any type.
2.2 Purchase Price for Products. Buyer will pay Seller Seller's factory
cost FOB for the Products Inventory as stated in Schedule 1 on receipt of such
Products, plus transportation costs to Buyer's designated receiving point.
2.3 Purchase Price for Machines. The purchase price for the Machines
will be Two Thousand Dollars per Machine, payable in Initial Payments and Final
Payment as follows (the "Purchase Price") plus transportation costs to Buyer's
designated receiving point:
2.3.1 Initial Payments. Buyer will pay an Initial Payment of One
Thousand Dollars per Machine, and the cost of transportation to Buyer's
designated receiving point, payable as follows:
2.3.1.1 On Buyer's receipt of the first 14 Machines from
Seller's warehouse, Buyer will pay an Initial Payment of Fourteen Thousand
Dollars ($14,000.00);
2.3.1.2 On Buyer's receipt of the next 14 Machines, Buyers
will pay another Initial Payment of Fourteen Thousand Dollars ($14,000.00)
2.3.1.3 On Buyer's receipt of the remaining Machines, Buyer
will pay an Initial Payment of One Thousand Dollars ($1,000.00) per Machine.
2.3.2 Nine months after receipt of the final Machine purchase
hereunder, Buyer will pay Seller the balance of the Purchase Price for the
Machines, adjusted for the actual number of accepted Machines, and further
adjusted by the amount of any costs incurred by Buyer for the Completion of the
Machines, and the release of the Machines from any lien holders. Said costs are
subject to prior approval of Seller and in no event may costs charged back for a
single machine exceed the balance of the per Machine Purchase Price for that
Machine. Together with this payment, Buyer will render an accounting of all such
amounts deducted by Buyer.
2.4 Buyer shall have no obligation to purchase any Products that are
not merchantable or fit for their intended purpose, nor for any Machines not
capable of Completion by Buyer within the per Machine Purchase Price.
2.5 If, in the course of effecting Completion, Buyer determines that
any Machine is not capable of completion within the per Machine Purchase Price,
Buyer may reject this Machine and return it to Seller.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby represents and
warranties as follows:
3.1 Inventory.
3.1.1 Schedule 1 is a complete list of the Products and each
Product's factory cost FOB. All items included in the Products are the property
of Seller, and no items included in the Products have been pledged as collateral
(other than pursuant to a promissory note held by Xxx Xxxxxxxx) or are held by
Seller on a consignment by others. Seller has good and marketable title to all
Products free and clear of all liens, encumbrances and charges.
3.1.2 Schedule 2 is a complete list of Machines, held by or for
Seller, and the location at which they are held. Seller will convey to Buyer
good and marketable title to all Machines and components sold hereunder free and
clear of all liens, encumbrances and charges.
3.2 Authorization. The execution, delivery and performance by Seller of
this Agreement are within the power of Seller, have been duly authorized by all
necessary action, and do not contravene or constitute a default under any
agreement, order, lease, or other instrument to which Seller is bound. This
Agreement constitutes a valid and binding agreement of Seller, enforceable
against Seller in accordance with its terms.
4. PERFORMANCE BY SELLER.
4.1 Further Documents. Seller herewith executes and delivers or causes
to be delivered to Buyer or his designee or designees the following
4.1.1 A xxxx of sale for all the Products and Information that are
tangible personal property in the form of Exhibit A, executed by Seller;
4.1.2 A License Agreement for the use of Seller's Intellectual
Property as therein defined, in the form of Exhibit B, executed by Seller.
4.1.3 A Non Competition Agreement in the form of Exhibit C,
executed by Seller and Xxxxx Xxxxxxxx.
4.2 Products. On signing this Agreement, Seller will ship the Products
to Buyer; FOB Buyer's designated shipping point on the West Coast, at Buyer's
cost.
4.3 Information. On signing this Agreement, Seller will ship all
tangible forms of the Information to Buyer. Seller will convey all electronic
data carrying the Information by e-mail or disc, as directed by Buyer.
4.4 Machines. Seller will ship the Machines, assembled in so far as
practicable, and, for those machines not fully assembled, Seller will provide
Buyer with all necessary components and parts to the extent that the same are in
Seller's possession or control. Seller will prepare the Machines, including the
components and parts for shipment to Buyer, FOB shipping point, free and clear
of all liens and encumbrances to Buyer, FOB Buyer's designated shipping point on
the West Coast. On shipment to Buyer, Seller will execute and deliver to Buyer a
Xxxx of Sale for all the Machines in the form of Exhibit A.
5. SURVIVAL AND INDEMNIFICATION. Seller will hold harmless and indemnify Buyer
from all claims from suppliers, contractors, warehouse, and other third party
vendors incurred by Seller in relation to the Machines and Inventory or
components thereof that are sold by this Agreement to the extent such claims
arose prior to the date of sale.
6. GENERAL
6.1 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.
6.2 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.
6.3 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.
6.4 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.
6.5 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.
6.6 Headings. The headings of this Agreement are for convenience
purposes only, and shall have no effect on its construction or interpretation.
6.7 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. 6.8 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
Seller: uWINK, Inc.
00000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
6.9 Jurisdiction and Venue. The Parties acknowledge and understand that
the making and performing of this Agreement is in Los Angeles, California. Any
suit, arbitrations, mediation or other remedial process shall be filed and
maintained in Los Angeles, California.
6.10 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.
6.11 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 INTERACTIVE VENDING
Corporation CORPORATION, a Nevada Corporation
By: ___________________________ By: ______________________________
Name: Name:
Title: Title:
