EXHIBIT 10.4
MANAGEMENT SERVICES AGREEMENT
MANAGEMENT SERVICES AGREEMENT entered into this 12th day of May, 2003
(hereinafter "Effective Date") by and between Win Win, Inc. (Win Win), a Nevada
corporation, and Golden Win Win Cambodia, Inc. (Golden Win Win), a Delaware
corporation.
WHEREAS, Golden Win Win has a license in The Kingdom of Cambodia
(Cambodia) to operate a lottery; and
WHEREAS, Win Win is an experienced operator and manager of lotteries
around the world; and
WHEREAS, Golden Win Win wishes to engage Win Win's management and
operational expertise to operate a lottery in Cambodia;
NOW, THEREFORE, in consideration of the representations, warranties,
mutual covenants and agreements set forth herein, the parties agree as follows:
1. SCOPE OF SERVICES FOR WIN WIN.
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a. DUTIES AND PERFORMANCE. Win Win agrees to manage and operate the
lottery in Cambodia, licensed to Golden Win Win by The Kingdom of Cambodia, with
such services to include but not be limited to the printing and shipping of
lottery tickets, all advertising, and the marketing, distribution and sales of
said tickets within Cambodia (hereinafter referred to as the "Initial Start-up
Costs") as well as the collection of all revenues generated by such sales and
subsequent distribution of revenues in accordance with the terms herein. Win Win
will be responsible for any and all direct costs related to the above.
b. INDEPENDENT CONTRACTOR STATUS. The parties agree that Win Win is an
independent contractor hereunder. Nothing herein or in the performance hereof
shall imply a joint venture or principal and agent relationship between the
parties.
c. NONPERFORMANCE. Should Win Win fail to provide sufficient management
and operational expertise to generate a profit on the lottery within a twelve
month period, such will be deemed as nonperformance by Win Win, allowing Golden
Win Win to have the option to terminate this agreement and select a new lottery
manager and operator. However, this clause is inapplicable in
the event that Win Win's nonperformance hereunder is caused in whole or in part
by a failure of Golden Win Win to have performed its obligations herein or as a
result of problems Golden Win Win knew or should have known about but failed to
advise Win Win of same.
2. SCOPE OF SERVICES FOR GOLDEN WIN WIN.
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a. DUTIES AND PERFORMANCE. Golden Win Win will provide a valid, legal
license by which to operate a lottery in Cambodia and be responsible for
ensuring Win Win can provide the services herein unfettered and in compliance
with all other aspects of Cambodian law.
b. INDEPENDENT CONTRACTOR STATUS. The parties agree that Golden Win Win
is an independent contractor hereunder. Nothing herein or in the performance
hereof shall imply a joint venture or principal and agent relationship between
the parties.
2. COMPENSATION
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a. FOR WIN WIN.
(1) PERCENTAGE OF NET PROFITS. In consideration for the
services herein, Win Win will be entitled to receive Fifty-one Percent (51%) of
net profits.
(2) INITIAL START-UP COSTS. Win Win will also be entitled to
be fully reimbursed for all its Initial Start-up costs as set forth in Para. 1a
above out of the first revenues generated by the sale of lottery tickets, before
distribution of net profits are made to any other party. In order to ensure both
parties participate in all distributions, it is agreed that these costs will be
reimbursed to Win Win in accordance with the following formula: After the
payment of all monthly operating expenses, the first Ten (10%) of net profits of
every disbursement will be applied to reimburse Win Win for its Initial Start-up
Costs, with the balance to be distributed to the parties according to their
respective ownership percentage as set forth herein. Distributions will be made
in this manner until Win Win has been fully reimbursed for all its Initial
Start-up Costs, at which time distributions will be made strictly in accordance
with each respective parties' ownership percentage after payment of all monthly
operating expenses.
b. FOR GOLDEN WIN WIN. In consideration for the services herein, Golden
Win Win will be entitled to receive Forty-nine Percent (49%) of net profits,
after the application of Para. 2a(2) above.
3. OPERATIONS ACCOUNT. The parties agree that an operations account for the
lottery will be established at a bank in Phnom Penh with the
account to be registered under the name of LUCKY WIN WIN CAMBODIA, INC. (LUCKY
WIN WIN). It is agreed that this the sole purpose and use of the corporate name
of LUCKY WIN WIN is to provide a vehicle by which funds collected from the sale
of lottery tickets can be deposited and subsequently disbursed by WIN WIN. It is
agreed too that the aforementioned lottery license will remain under the control
of GOLDEN WIN WIN and will not be transferred to LUCKY WIN WIN. Disbursements
from this operational account will only be effected by WIN WIN after providing
GOLDEN WIN WIN with a full accounting of income and expenses prior to said
distribution.
4. TERM AND TERMINATION. The term of this Agreement shall become effective
immediately upon execution by both parties, i.e. the Effective Date, and shall
continue in force for a term of one (1) year thereafter. It will be
automatically renewed for an additional one year term each year upon the
anniversary of the Effective Date unless a party provides written notice thirty
days before said annual anniversary otherwise.
5. MISCELLANEOUS.
a. NOTICE. All notices and other communications hereunder shall be in
writing and delivered by certified mail, return receipt requested, Federal
Express or any other generally recognized overnight delivery service, or by
hand, to the appropriate party at the address stated above for such party or to
such other address as a party indicates in a notice to the other party delivered
in accordance with this Section. All notices shall be effective upon receipt by
the recipient.
b. SEVERABILITY. Should one or more provisions of this Agreement be
held enforceable, for whatever cause, the validity of the remainder of this
Agreement shall remain unaffected. The parties shall; in such event, attempt in
good faith to agree on new provisions which best correspond to the object of
this Agreement. In the event the parties cannot agree to the appropriate new
provision(s), either party may ask the court and upon such request, the court
shall specify new provisions which best correspond to the object of this
Agreement.
c. ENTIRE AGREEMENT. The parties have entered into the present
Agreement after negotiations and discussions, an examination of its text, and an
opportunity to consult counsel; the parties shall be considered to have had
equal roles in preparing this Agreement. This Agreement constitutes the entire
understanding between the parties regarding to specific subject matter covered
herein. Neither party shall be bound by any statements or representations made
by either party not embodied in this Agreement. No provisions herein contained
shall be waived, modified or altered, except by an instrument in writing, duly
executed by the parties hereto.
d. GOVERNING LAW. This Agreement and the rights and liabilities of the
parties hereunder shall be governed by and determined in accordance with the
laws of the United States, and specifically of the State of Nevada, without
giving effect to any choice of law or conflict of law provision or rule whether
such provision or rule is that of the State of Nevada or any other jurisdiction.
Each of the parties irrevocably consents to the exclusive personal jurisdiction
of the State of Nevada courts situated in Xxxxx County or the applicable United
States District Court in connection with any actions, suit or proceeding
relating to or arising out of this Agreement. Each of the parties hereto, to the
maximum extent permitted by law, hereby waives any objection that such party may
now have or hereafter have to the jurisdiction of such courts on the basis of
inconvenient forum or otherwise. Notwithstanding the foregoing, any action for
injunctive relief may be brought in any court having proper jurisdiction. The
prevailing party in any action shall be entitled to reimbursement of expenses
and costs including reasonable attorneys' fees.
e. NO IMPLIED WAIVERS. No delay or omission by either party to exercise
its rights and remedies in connection with the breach or default of the other
shall operate as or be construed as a waiver of such rights or remedies as to
any subsequent breach.
f. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, but all counterparts hereof shall together constitute but one
agreement. In proving this Agreement, it shall not be necessary to produce or
account for more than one counterpart signed by both of the parties. A facsimile
signature shall be acceptable as a valid original signature.
g. ASSIGNMENT. Neither party will have the right to assign, pledge or
transfer all or any part of this Agreement without the prior written consent of
the other, and any such purported assignment, pledge or transfer by a party
without such prior written consent shall be void.
h. CAPACITY. Each party represents one to the other that it is under no
incapacity to enter into or perform this Agreement and that each person signing
this Agreement on its behalf has the authority to do so, and each shall never
otherwise assert.
i. CAPTIONS. The captions appearing in this Agreement are inserted only
as a matter of convenience and for reference and in no way define, limit or
describe the scope and intent of this Agreement or any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the Effective Date.
Win Win, Inc.
By: /s/ Xxxxxxx Xxxxxx
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Title: President
Golden Win Win, Inc.
By: /s/ signature
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Title: President
