ASSET PURCHASE AGREEMENT Dated as of July 5, 2005 Between WinWin Gaming, Inc. and Bijou Studios, Inc.
Exhibit
10.1
Dated
as of July 5, 2005
Between
WinWin
Gaming, Inc.
and
Bijou
Studios, Inc.
ASSET
PURCHASE AGREEMENT dated as of July 5, 2005 (this “Agreement”) between WinWin
Gaming, Inc., a Delaware corporation, with an address at 0000 Xxxxxx Xxxx.,
Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000 (the “Purchaser”), and Bijou Studios, Inc., a
Delaware corporation, with an address at 00000 Xxxxxxxxx Xxxxx Xx. Xxx Xxxxx,
XX
00000 (the “Seller”).
ARTICLE
I
(a)
The
following terms, when used in this Agreement, shall have the respective meanings
ascribed to them below:
“ACTION”
means any claim, action, suit, inquiry, hearing, investigation or other
proceeding.
“AFFILIATE”
means, with respect to a Person, any other Person that, directly or indirectly,
through one or more intermediaries, Controls, is controlled by or is under
common Control with, such Person. For purposes of this definition, “CONTROL”
(including, with correlative meanings, the terms “Controlled by” and “under
common Control with”) means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of stock, as trustee or executor, by Contract
or
credit arrangement or otherwise.
“AGREEMENT”
has the meaning set forth in the preamble hereto.
“ANCILLARY
AGREEMENTS” means the Xxxx of Sale and the IP Assignment.
“ASSETS”
has the meaning set forth in Section 2.1.
“XXXX
OF
SALE” has the meaning set forth in Section 3.2(b).
“BUSINESS
DAY” means any day other than Saturday, Sunday or any day on which banks in Las
Vegas, Nevada are required or authorized to be closed.
“CLAIM
NOTICE” means written notification pursuant to Section 7.2(a) of a Third-Party
Claim as to which indemnity under Section 7.1 is sought by an Indemnified
Party,
enclosing a copy of all papers served, if any, and specifying the nature
of and
basis for such Third-Party Claim and for the Indemnified Party’s claim against
the Indemnifying Party under Section 7.1, together with the amount or, if
not
then reasonably ascertainable, the estimated amount, determined in good faith,
of the Indemnified Party’s Losses in respect of such Third-Party
Claim.
“CLOSING”
has the meaning set forth in Section 3.1.
“CLOSING
DATE” has the meaning set forth in Section 3.1.
“COMPETITIVE
PRODUCT” means any product that competes directly with the use, potential use,
or expected use of the Assets, or any part thereof.
“CONTRACT”
means any agreement, lease, debenture, note, bond, evidence of Indebtedness,
mortgage, indenture, security agreement, option or other contract or commitment
(whether written or oral).
“DISPUTE
NOTICE” means a written notice provided by any party against which
indemnification is sought under this Agreement to the effect that such party
disputes its indemnification obligation under this Agreement.
“DISPUTE
PERIOD” means the period ending thirty calendar days following receipt by an
Indemnifying Party of either a Claim Notice or an Indemnity Notice.
“GAAP”
means United States generally accepted accounting principles as in effect
from
time to time, consistently applied throughout the specified period and all
prior
comparable periods.
“GOVERNMENTAL
ENTITY” means any government or political subdivision thereof, whether foreign
or domestic, federal, state, provincial, county, local, municipal or regional,
or any other governmental entity, any agency, authority, department, division
or
instrumentality of any such government, political subdivision or other
governmental entity, any court, arbitral tribunal or arbitrator, and any
nongovernmental regulating body, to the extent that the rules, regulations
or
orders of such body have the force of Law.
“INDEBTEDNESS”
means, as to any Person: (i) all obligations, whether or not contingent,
of such
Person for borrowed money (including, without limitation, reimbursement and
all
other obligations with respect to surety bonds, letters of credit and bankers’
acceptances, whether or not matured), (ii) all obligations of such Person
evidenced by notes, bonds, debentures, capitalized leases or similar
instruments, (iii) all obligations of such Person representing the balance
of
deferred purchase price of property or services, (iv) all interest rate and
currency swaps, caps, collars and similar agreements or hedging devices under
which payments are obligated to be made by such Person, whether periodically
or
upon the happening of a contingency, (v) all indebtedness created or arising
under any conditional sale or other title retention Contract with respect
to
property acquired by such Person (even though the rights and remedies of
the
seller or lender under such Contract in the event of default are limited
to
repossession or sale of such property), (vi) all indebtedness secured by
any
Lien on any property or asset owned or held by such Person regardless of
whether
the indebtedness secured thereby shall have been assumed by such Person or
is
non-recourse to the credit of such Person, and (vii) all indebtedness referred
to in clauses (i) through (vi) above of any other Person that is guaranteed,
directly or indirectly, by such Person.
“INDEMNIFIED
PARTY” means any Person claiming indemnification under any provision of Article
VII.
“INDEMNIFYING
PARTY” means any Person against whom a claim for indemnification is being
asserted under any provision of Article VII.
“INDEMNITY
NOTICE” means written notification pursuant to Section 7.2(b) of a claim for
indemnification under Article VII by an Indemnified Party, specifying the
nature
of and basis for such claim, together with the amount or, if not then reasonably
ascertainable, the estimated amount, determined in good faith, of the
Indemnified Party’s Losses in respect of such claim.
“INTELLECTUAL
PROPERTY” means: all (i) discoveries and inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all United States, international, and foreign patents, patent applications
(either filed or in preparation for filing), patent disclosures and statutory
invention registrations, including all reissuances, divisions, continuations,
continuations in part, extensions and reexaminations thereof, all rights
therein
provided by international treaties or conventions, (ii) trademarks, service
marks, trade dress, logos, trade names, corporate names, and other source
identifiers (whether or not registered) including all common law rights,
all
registrations and applications for registration (either filed or in preparation
for filing) thereof, all rights therein provided by international treaties
or
conventions, and all renewals of any of the foregoing, (iii) all copyrightable
works and copyrights (whether or not registered), all registrations and
applications for registration thereof, all rights therein provided by
international treaties or conventions, and all data and documentation relating
thereto, (iv) confidential and proprietary information, trade secrets, know-how
(whether patentable or nonpatentable and whether or not reduced to practice),
processes and techniques, research and development information including
patent
and/or copyright searches conducted by Seller and/or any third party, ideas,
technical data, designs, drawings and specifications, (v) Software, (vi)
coded
values, formats, data and historical or current databases, whether or not
copyrightable, (vii) domain names, Internet websites or identities used or
held
for use by the Seller, (viii) other proprietary rights relating to any of
the
foregoing (including without limitation any and all associated goodwill and
remedies against infringements thereof and rights of protection of an interest
therein under the laws of all jurisdictions), and (ix) copies and tangible
embodiments of any of the foregoing.
“IP
ASSIGNMENT” has the meaning set forth in Section 3.2(c).
“KNOWLEDGE”
means the actual or constructive knowledge after due inquiry of any current
officer of the Seller.
“LAWS”
means all laws, statutes, rules, regulations, ordinances and other
pronouncements having the effect of law of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision or of any Governmental Entity.
“LIABILITY”
means all Indebtedness, obligations and other Liabilities of a Person, whether
absolute, accrued, contingent, fixed or otherwise, and whether due or to
become
due (including for Taxes).
“LIEN”
means any mortgage, pledge, assessment, security interest, lease, lien, adverse
claim, levy, charge or other encumbrance of any kind, whether voluntary or
involuntary (including any conditional sale Contract, title retention Contract
or Contract committing to grant any of the foregoing).
“LOSS”
means any and all damages, fines, fees, penalties, deficiencies, losses and
expenses (including, without limitation, all interest, court costs, fees
and
expenses of attorneys, accountants and other experts or other expenses of
litigation or other proceedings or of any claim, default or
assessment).
“MATERIAL
ADVERSE EFFECT” means any material adverse effect on the condition, operations,
business, prospects or results of sales of the Seller; PROVIDED, HOWEVER,
that
any adverse effect arising out of or resulting from the entering into of
this
Agreement or the consummation of the transactions contemplated hereby, shall
be
excluded in determining whether a Material Adverse Effect has
occurred.
“ORDER”
means any writ, judgment, decree, injunction or similar order of any
Governmental Entity (in each case whether preliminary or
final).
“PERSON”
means any individual, partnership, limited liability company, corporation,
association, joint stock company, trust, estate, joint venture, unincorporated
organization, Governmental Entity or any other entity of any kind.
“PURCHASE
PRICE” has the meaning set forth in Section 2.1.
“PURCHASER”
has the meaning set forth in the preamble hereto.
“PURCHASER
INDEMNIFIED PARTIES” has the meaning set forth in Section 7.1(a).
“REPRESENTATIVES”
means, with respect to any Person, the directors, officers, employees, counsel,
accountants and other authorized representatives of such Person.
“RESOLUTION
PERIOD” means the period ending thirty days following receipt by an Indemnified
Party of a Dispute Notice.
“SELLER”
has the meaning set forth in the preamble hereto.
“SELLER
INDEMNIFIED PARTIES” has the meaning set forth in Section 7.1(b).
“SOFTWARE”
means all computer software, including source code, object code,
machine-readable code, HTML or other markup language, program listings,
comments, user interfaces, menus, buttons and icons, web applications and
all
files, data, manuals, design notes, research and development documents, and
other items and documentation related thereto or associated
therewith.
“SOLVENT”
means, with respect to the Seller, that (a) the Seller is able to pay its
Liabilities, as they mature in the normal course of business, and (b) the
fair
value of the assets of the Seller is greater than the total amount of
Liabilities of the Seller.
“TAX
RETURNS” means all returns and reports (including elections, claims,
declarations, disclosures, schedules, estimates, computations and information
returns) required to be supplied to a tax authority in any jurisdiction relating
to Taxes.
“TAXES”
means all federal, state, local and foreign income, profits, franchise, license,
social security, transfer, registration, estimated, gross receipts,
environmental, customs duty, capital stock, severance, stamp, payroll, sales,
employment, unemployment, disability, use, property, withholding, excise,
production, value added, occupancy and other taxes, duties or assessments
of any
nature whatsoever together with all interest, penalties, fines and additions
to
tax imposed with respect to such amounts and any interest in respect of such
penalties and additions to tax.
“THIRD-PARTY
CLAIM” has the meaning set forth in Section 7.2(a).
“TRANSFER
TAXES” means all sales, use, value added, excise, registration, documentary,
stamps, transfer, real property transfer, recording, gains, stock transfer
and
other similar Taxes and fees.
(b)
For
purposes of this Agreement, except as otherwise expressly provided herein
or
unless the context otherwise requires: (i) words using the singular or plural
number also include the plural or singular number, respectively, and the
use of
any gender herein shall be deemed to include the other genders; (ii) references
herein to “Articles”, “Sections”, “subsections” and other subdivisions without
reference to a document are to the specified Articles, Sections, subsections
and
other subdivisions of this Agreement; (iii) a reference to a subsection without
further reference to a Section is a reference to such subsection as contained
in
the same Section in which the reference appears, and this rule shall also
apply
to other subdivisions within a Section or subsection; (iv) the words “herein”,
“hereof”, “hereunder”, “hereby” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and (v) the words
“include”, “includes” and “including” are deemed to be followed by the phrase
“without limitation”. All accounting terms used herein and not expressly defined
herein shall have the meanings given to them under GAAP.
ARTICLE
II
(a)
At
the Closing, as hereinafter defined, Purchaser shall pay Seller for the Assets
the price of four hundred thousand ($400,000.00) (the “PURCHASE PRICE”) payable
as follows: (i) ten thousand ($10,000) upon execution of this Agreement,
(ii)
ninety thousand ($90,000.00) in cash at the Closing; (iii) sixty-five thousand
dollars ($65,000.00) in cash within thirty (30) days of the Closing; (iv)
fifty
thousand dollars ($50,000.00) cash within sixty (60) days of the Closing;
and
(v) the balance of one hundred eighty-five thousand dollars ($185,000.00)
shall
be paid to Seller by the issuance of common stock of Purchaser, with the
public
market value of one hundred eighty-five thousand dollars ($185,000.00), within
ninety (90) days of the Closing. The number of shares of said common stock
shall
be determined in accordance with the market price of the day immediately
preceding the execution date of this Agreement.
(b)
In
consideration of the payment by the Purchaser of the PURCHASE PRICE, the
Seller
hereby agrees to sell, convey, transfer, assign, grant and deliver to the
Purchaser, and the Purchaser hereby agrees to purchase, acquire and accept
from
the Seller, at the Closing, all of the Seller’s right, title and interest in and
to all of the Assets, free and clear of all Liens. The term “ASSETS” means: (a)
the software assets set forth on Schedule 2.1 attached hereto; (b) all
Intellectual Property as set forth on Schedule 2.1 attached hereto; (c) all
rights to causes of action, lawsuits, judgments, claims and demands of any
nature available to or being pursued by the Seller with respect to (a) above,
whether arising by way of counterclaim or otherwise; and (d) a list of any
end-users of the Assets that have licensed such products or received such
products from Seller, which list shall include the product received, the
platform on which it is used and the term of the license.
ARTICLE
III
(a)
a
certificate, duly executed by an authorized officer of the Seller, certifying
the satisfaction of the conditions set forth in Sections 6.1(c), (d), (e)
and
(g);
(b)
a
Xxxx of Sale and General Assignment for the Assets, duly executed by the
Seller,
in the form attached hereto as EXHIBIT A (the “XXXX OF SALE”);
(c)
an
intellectual property assignment, duly executed by the Seller, in the form
attached hereto as EXHIBIT B (the “IP ASSIGNMENT”); and
(d)
such
other documents and instruments as the Purchaser may reasonably
request.
(a)
a
certificate duly executed by the authorized officer of the Purchaser, certifying
the satisfaction of the conditions set forth in Sections 6.2(c) and
(d);
(b)
such
other documents and instruments as the Seller may reasonably
request.
ARTICLE
IV
As
an
inducement to the Purchaser to enter into this Agreement, the Seller represents
and warrants to the Purchaser as follows:
(a)
Neither the execution, delivery or performance of this Agreement or the
Ancillary Agreements nor the consummation of the transactions contemplated
hereby or thereby will, with or without the giving of notice or the lapse
of
time or both, (i) violate any provision of the certificate of incorporation
or
bylaws of the Seller, (ii) violate any Law or Order or other restriction
of any
Governmental Entity to which the Seller may be subject or (iii) conflict
with,
result in a breach of, constitute a default under, result in the acceleration
of
any right or obligation under, create in any party the right to accelerate,
terminate, modify, cancel, require any notice under or result in the creation
of
a Lien on any of the Assets under, any Contract to which the Seller is a
party
or by which it is bound and to which any of its Assets is subject.
(b)
The
execution and delivery of this Agreement and the Ancillary Agreements by
the
Seller do not, and the performance of this Agreement and the Ancillary
Agreements by the Seller and the consummation of the transactions contemplated
hereby and thereby will not, require any consent, approval, authorization
or
permit of, or filing with or notification to, any Governmental
Entity.
(a)
SCHEDULE 4.6 contains a list of all patent and/or copyrights applications
therefor filed by Seller with respect to the Assets and all licenses, if
any,
relating to the foregoing patent and/or copyrights applications therefor.
SCHEDULE 4.6 identifies the owner of each item listed thereon and, in the
case
of registrations and applications, the application or registration number
and
date. The Seller has not taken any action that could result in any of the
registrations and applications for registration for the Assets not being
valid
and in full force and effect.
(b)
Except as disclosed on SCHEDULE 4.6, the Seller is the sole and exclusive
owner
of, and has good and marketable title to, all of the Intellectual Property
in
and to the Assets, including the Intellectual Property set forth on SCHEDULE
4.6, free and clear of all Liens. Except as disclosed on SCHEDULE 4.6, the
Seller has sole and exclusive right to develop, perform, use, create derivative
works of, operate, reproduce, market, sell, license, display, distribute,
publish and transmit the Intellectual Property in and to the Assets. Upon
the
Closing, except as disclosed on SCHEDULE 4.6, the Purchaser will have sole
and
exclusive right, title and interest in and to the Intellectual Property in
and
to the Assets, such that the Purchaser shall thereafter have sole and exclusive
rights to perform, reproduce, create derivative works of, develop, use, operate,
market, sell, license, display, publish, transmit and distribute the Assets,
free of all encumbrances. The Seller has taken reasonable measures to protect
the proprietary nature of the Intellectual Property in and to the Assets
and to
maintain in confidence the trade secrets and confidential information that
it
owns or uses. Except as disclosed on SCHEDULE 4.6, no other Person has any
rights to any of Intellectual Property in and to the Assets and, to the
knowledge of the Seller, no other Person is infringing, violating or
misappropriating any of the Intellectual Property in and to the
Assets.
(c)
With
respect to the Seller’s Intellectual Property contributed to the Assets, such
Intellectual Property does not infringe upon, violate or constitute a
misappropriation of any Intellectual Property or other right of any other
Person. In addition, to Seller’s knowledge, none of the activities or business
presently conducted by the Seller with respect to the Assets infringes or
violates, or constitutes a misappropriation of, any Intellectual Property
or
other right of any other Person. Neither the Seller nor any Affiliate of
the
Seller has received any written complaint, claim or notice alleging any such
infringement, violation or misappropriation. Further, neither the Seller
nor any
Affiliate of the Seller has disclosed to any Person, any source code, or
any
portion or aspect of any source code, which is part of the Assets, including
the
Intellectual Property.
ARTICLE
V
As
an
inducement to the Seller to enter into this Agreement, the Purchaser represents
and warrants to the Seller as follows:
(a)
Neither the execution, delivery or performance of this Agreement or the
Ancillary Agreements, nor the consummation of the transactions contemplated
hereby or thereby will, with or without the giving of notice or the lapse
of
time or both, (i) violate any provision of the certificate of incorporation
or
bylaws of the Purchaser or (ii) violate any Law or Order or other restriction
of
any Governmental Entity to which the Purchaser may be subject.
(b)
The
execution and delivery of this Agreement and the Ancillary Agreements by
the
Purchaser do not, and the performance of this Agreement and the Ancillary
Agreements by the Purchaser and the consummation of the transactions
contemplated hereby and thereby will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Entity.
ARTICLE
VI
(a)
The
representations and warranties of the Seller set forth in this Agreement
shall
be true and correct in all material respects, with respect to representations
and warranties not qualified by materiality, or in all respects, with respect
to
representations and warranties qualified by materiality, as of the date of
this
Agreement and as of the Closing Date as though made on and as of the Closing
Date.
(b)
The
Seller shall have performed in all material respects the covenants required
to
be performed by it under this Agreement at or prior to the Closing
Date.
(c)
The
board of directors of the Seller shall have approved this Agreement and the
Ancillary Agreements and the transactions contemplated hereby and
thereby.
(d)
The
Seller shall have executed and delivered each of the Ancillary
Agreements.
(e)
There
shall be no effective or pending Law or Order that would prohibit the Closing,
and the Seller shall have obtained all necessary approvals of any Governmental
Entities in connection with the transactions contemplated hereby and by the
Ancillary Agreements.
(f)
The
Seller shall have delivered each of the items described in Section
3.2.
(g)
The
Seller shall have delivered to the Purchaser a duly completed and executed
certification pursuant to Section 1.445-2(b)(2) of the Treasury regulations
certifying that the Seller is not a foreign person.
(h)
Purchaser shall have until the end of the thirtieth (30th))
day
following the date of this Agreement to conduct such investigations and studies
of the Assets as Purchaser shall determine to be necessary or appropriate.
Seller agrees that Purchaser and Purchaser’s agents shall have access to the
Assets (including the Intellectual Property) at all reasonable times during
this
due diligence period for the purpose of conducting its feasibility and other
studies and investigations of the Assets. Within three (3) days after the
date
of this Agreement, Seller shall provide to Buyer any and all documents requested
by Purchaser and relating to the Assets including the Intellectual Property.
If
requested by Purchaser, Seller shall cooperate with Purchaser to facilitate
meetings between Buyer and its Representatives and Seller and its
Representatives regarding such investigations and studies of the Assets
including the Intellectual Property. If Purchaser is not satisfied with the
Assets or the feasibility of purchasing the Assets, for any reason whatsoever,
then Purchaser shall have the absolute and unconditional right to terminate
this
Agreement. If Purchaser elects to terminate this Agreement, the Purchaser
shall
deliver written notice to Seller of its intention within seven (7) days after
the expiration of the due diligence period of thirty (30) days from the date
of
this Agreement. Should Purchaser issue such notice, then this Agreement shall
automatically terminate whereupon the parties shall be relieved of any and
all
further obligations hereunder. If Purchaser does not issue such notice, then
Purchaser will have deemed to have elected to go forward with the acquisition
of
the Assets pursuant to this Agreement.
(a)
The
representations and warranties of the Purchaser set forth in this Agreement
shall be true and correct in all material respects, with respect to
representations and warranties not qualified by materiality, and in all
respects, with respect to representations and warranties qualified by
materiality, in each case as of the date of this Agreement and as of the
Closing
Date as though made on and as of the Closing Date.
(b)
The
Purchaser shall have performed in all material respects the covenants required
to be performed by it under this Agreement at or prior to the Closing
Date.
(c)
The
Purchaser shall have executed and delivered each of the Ancillary
Agreements.
(d)
There
shall be no effective or pending Law or Order that would prohibit the Closing,
and the Purchaser shall have obtained all necessary approvals of any
Governmental Entities in connection with the transactions contemplated hereby
and by the Ancillary Agreements.
(e)
The
Purchaser shall have delivered each of the items described in Section
3.3.
ARTICLE
VII
(a)
Seller shall indemnify the Purchaser and its officers, directors, employees,
agents and Affiliates (collectively, the “PURCHASER INDEMNIFIED PARTIES”) in
respect of, and hold each harmless from and against, any and all Losses
suffered, incurred or sustained by any of them or to which any of them becomes
subject, resulting from, arising out of or relating to (i) any misrepresentation
or breach of representation or warranty on the part of the Seller contained
in
this Agreement, (ii) any nonfulfillment of or failure to perform any covenant
or
agreement on the part of the Seller contained in this Agreement, and (iii)
any
Liabilities of the Seller.
(b)
Purchaser shall indemnify the Seller and its officers, directors, employees,
agents and Affiliates (collectively, the “SELLER INDEMNIFIED PARTIES”) in
respect of, and hold each harmless from and against, any and all Losses
suffered, incurred or sustained by it or to which it becomes subject, resulting
from, arising out of or relating to (i) any misrepresentation or breach of
representation or warranty on the part of the Purchaser contained in this
Agreement and (ii) any nonfulfillment of or failure to perform any covenant
or
agreement on the part of the Purchaser contained in this Agreement.
(c)
For
purposes of indemnification under this Article VII only, all qualifications
as
to materiality and/or Material Adverse Effect contained in any representation
or
warranty shall be disregarded.
(a)
THIRD-PARTY CLAIMS. In the event that any claim or demand in respect of which
an
Indemnified Party might seek indemnification under Section 7.1 in respect
of,
arising out of or involving a claim or demand made by any Person not a party
to
this Agreement against an Indemnified Party (a “THIRD-PARTY CLAIM”), the
Indemnified Party shall deliver a Claim Notice to the Indemnifying Party
within
sixty (60) days after receipt by such Indemnified Party of written notice
of the
Third Party Claim. If the Indemnified Party fails to provide the Claim Notice
within such time period, the Indemnifying Party will not be obligated to
indemnify the Indemnified Party with respect to such Third-Party Claim to
the
extent that the Indemnifying Party’s ability to defend is actually prejudiced by
such failure of the Indemnified Party. The Indemnifying Party will notify
the
Indemnified Party as soon as practicable within the Dispute Period whether
the
Indemnifying Party accepts or disputes its liability to the Indemnified Party
under Section 7.1 and whether the Indemnifying Party desires, at its sole
cost
and expense, to defend the Indemnified Party against such Third-Party
Claim.
(i)
DEFENSE BY INDEMNIFYING PARTY. If the Indemnifying Party notifies the
Indemnified Party within the Dispute Period that the Indemnifying Party desires
to defend the Indemnified Party with respect to the Third-Party Claim pursuant
to this Section 7.2, then the Indemnifying Party will have the right to defend,
with counsel reasonably satisfactory to the Indemnified Party, at the sole
cost
and expense of the Indemnifying Party, such Third-Party Claim by all appropriate
proceedings, which proceedings will be vigorously and diligently prosecuted
or
defended by the Indemnifying Party to a final conclusion or will be settled
at
the discretion of the Indemnifying Party (but only with the consent of the
Indemnified Party in its sole discretion in the case of any settlement that
provides for any relief other than the payment of monetary damages or that
provides for the payment of monetary damages as to which the Indemnified
Party
will not be indemnified in full pursuant to Section 7.1). Subject to the
immediately preceding sentence, the Indemnifying Party will have full control
of
such defense and proceedings, including any compromise or settlement thereof;
PROVIDED, HOWEVER, that the Indemnified Party may, at the cost and expense
of
the Indemnifying Party, at any time prior to the Indemnifying Party’s delivery
of notice to assume the defense of such Third Party Claim, file any motion,
answer or other pleadings or take any other action that the Indemnified Party
reasonably believes to be necessary or appropriate to protect its interests.
The
Indemnifying Party shall not be liable to the Indemnified Party for legal
expenses incurred by the Indemnified Party in connection with the defense
of
such Third Party Claim after the Indemnifying Party’s delivery of notice to
assume the defense. In addition, if requested by the Indemnifying Party,
the
Indemnified Party will, at the sole cost and expense of the Indemnifying
Party,
provide reasonable cooperation to the Indemnifying Party in contesting any
Third-Party Claim that the Indemnifying Party elects to contest.
(ii)
DEFENSE BY INDEMNIFIED PARTY. If the Indemnifying Party fails to notify the
Indemnified Party within the Dispute Period that the Indemnifying Party desires
to assume the defense of the Third-Party Claim, or if the Indemnifying Party
fails to give any notice whatsoever within the Dispute Period, then the
Indemnified Party will have the right to defend, at the sole cost and expense
of
the Indemnifying Party, the Third-Party Claim by all appropriate proceedings,
which proceedings will be prosecuted by the Indemnified Party in good faith
or
will be settled at the discretion of the Indemnified Party. The Indemnified
Party will have full control of such defense and proceedings, including any
compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by
the
Indemnified Party, the Indemnifying Party will, at the sole cost and expense
of
the Indemnifying Party, provide reasonable cooperation to the Indemnified
Party
and its counsel in contesting any Third-Party Claim which the Indemnified
Party
is contesting. Notwithstanding the foregoing provisions of this Section 7.2,
if
the Indemnifying Party has notified the Indemnified Party within the Dispute
Period that the Indemnifying Party disputes its liability hereunder to the
Indemnified Party with respect to such Third-Party Claim and if such dispute
is
resolved in all respects in favor of the Indemnifying Party in the manner
provided in clause (iii) below, the Indemnifying Party will not be required
to
bear the costs and expenses of the Indemnified Party’s defense pursuant to this
Section 7.2 or of the Indemnifying Party’s participation therein at the
Indemnified Party’s request. The Indemnifying Party may participate in, but not
control, any defense or settlement controlled by the Indemnified Party pursuant
to this Section 7.2, and the Indemnifying Party will bear its own costs and
expenses with respect to such participation.
(iii)
ACCEPTANCE BY INDEMNIFYING PARTY. If the Indemnifying Party notifies the
Indemnified Party that it accepts its indemnification liability to the
Indemnified Party with respect to the Third-Party Claim under Section 7.1,
the
Loss identified in the Claim Notice, as finally determined, will be conclusively
deemed a liability of the Indemnifying Party under Section 7.1 and the
Indemnifying Party shall pay the amount of such Loss to the Indemnified Party
on
demand. If the Indemnifying Party timely disputes its liability with respect
to
such Third-Party Claim or fails to notify the Indemnified Party within the
Dispute Period whether the Indemnifying Party disputes its liability to the
Indemnified Party with respect to such Third-Party Claim, the Indemnifying
Party
and the Indemnified Party will proceed in good faith to negotiate a resolution
of such dispute, and if not resolved through negotiations with the Resolution
Period, such dispute shall be resolved by litigation in a court of competent
jurisdiction.
ARTICLE
VIII
(a)
The
Seller acknowledges that reasonable limits on its ability to engage in
activities competitive with the Purchaser are warranted to protect the
Purchaser’s substantial investment in the Assets. The Seller further
acknowledges that Purchaser’s operations (to include the use and utilization of
the Assets) involve conducting business with, and/or exploiting business
opportunities in, countries throughout the world, and on worldwide wireless
networks and the worldwide internet web. As a consequence, Seller acknowledges
and agrees that a geographical limitation to this non-compete covenant would
be
ineffectual and harmless to Purchaser, and Seller waives any right to challenge
or contest same. Accordingly, the Seller shall not, and shall cause its
Affiliates not to, directly or indirectly, develop, co-develop, publish,
co-publish, sell, license or distribute any Competitive Product of the Assets
during the period commencing on the Closing Date and ending five (5) years
thereafter. Seller’s ownership of stock of any corporation listed on a national
securities exchange shall not be deemed a violation of this Section 8.2,
provided that Seller and its Affiliates collectively do not own more than
five
percent (5%) of the voting stock of such corporation.
(b)
Should any portion of Section 8.1(a) be declared by a court of competent
jurisdiction to be unreasonable, unenforceable or void for any reason or
reasons, the involved court shall modify Section 8.1(a) so as to be reasonable
or as is otherwise necessary to make that Section enforceable and
valid.
ARTICLE
IX
IF
TO
SELLER,
TO: Xxxx
Zain
0000
Xxxxxx Xxxx. Xxxxx 000
Xxx
Xxxxx, Xxxxxx, 00000
ATTN:
Xxxx Zain
WITH
A
COPY TO:
___________________________
___________________________
___________________________
IF
TO
PURCHASER, TO: WinWin
Gaming, Inc.
0000
Xxxxxx Xxxx., Xxxxx 000
Xxx
Xxxxx, Xxxxxx 00000
ATTN:
Xxx
Xxxxxx
WITH
A
COPY TO:
Attorney
Xxxxx Xxxxxx
000
X. Xxxxxxxx Xxxxxx
Xxxxxxxxxx,
Xxxx 00000
Any
party
hereto may change the address to which notices, requests, demands, claims
and
other communications hereunder are to be delivered by giving the other parties
hereto notice in the manner set forth herein.
9.8
GOVERNING LAW. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Nevada, without giving effect to any choice
of
law or conflict of law provision or rule that would cause the application
of the
Laws of any jurisdiction other than the State of Nevada.
9.9
CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH OF THE PARTIES HERETO
CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN
THE
COUNTY OF XXXXX IN THE STATE OF NEVADA AND IRREVOCABLY AGREES THAT ALL ACTIONS
OR PROCEEDINGS RELATING TO THIS AGREEMENT, THE ANCILLARY AGREEMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE LITIGATED IN SUCH COURTS.
EACH OF THE PARTIES HERETO ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
AGREEMENT, THE ANCILLARY AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR
THEREBY. EACH OF THE PARTIES HERETO FURTHER IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO SUCH PARTY AT THE ADDRESS SPECIFIED IN THIS AGREEMENT,
SUCH
SERVICE TO BECOME EFFECTIVE 15 CALENDAR DAYS AFTER SUCH MAILING. NOTHING
HEREIN
SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF EITHER PARTY HERETO TO
SERVE
ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER OR TO BRING ACTIONS,
SUITS OR PROCEEDINGS AGAINST THE OTHER PARTY HERETO IN SUCH OTHER JURISDICTIONS,
AND IN SUCH MANNER, AS MAY BE PERMITTED BY ANY APPLICABLE LAW.
___________________________
___________________________
|
WINWIN
GAMING, INC.
By: /s/
Xxxxxxx
Xxxxxx
Its:
|
___________________________
___________________________
|
BIJOU
STUDIOS, INC.
Its:
|