EXHIBIT 10.3
EXCLUSIVE LICENSE AGREEMENT
EXCLUSIVE LICENSE AGREEMENT dated as of October 5, 1999 (this
"Agreement"), by and among Lady Luck Gaming Corporation, a Delaware corporation
("Licensor"), and Gemini, Inc., a Nevada corporation ("Gemini") and Xxxxxx X.
Xxxxxxxx ("Xxxxxxxx", and together with Gemini, "Licensee").
RECITALS
WHEREAS, Licensor will acquire certain rights in the Property at the
First Closing, as defined in the Amended and Restated Purchase Agreement (as
such terms are defined below).
WHEREAS, pursuant to that certain Purchase Agreement dated as of August
19, 1999, as amended and restated as of August 31, 1999, effective as of August
19, 1999 (as so amended and restated, and as further amended and/or restated
from time to time, the "Amended and Restated Purchase Agreement"), by and among
the Licensor, Gemini, International Xxxxx Xxxx'x Services, Inc. ("IMPS") and
Xxxxxxxx, the Licensor desires to grant, and Licensee desires to obtain, free
and clear of any threat of litigation or loss of the goodwill built up in its
business, an exclusive perpetual license for the use of the Property in the
Territory (as defined below), subject to termination as provided herein.
WHEREAS, pursuant to that certain Agreement and Plan of Merger dated as
of the date hereof (the "Merger Agreement"), by and among Isle of Capri Casinos,
Inc., a Delaware corporation ("Isle of Capri"), Isle Merger Corp., a Delaware
corporation and a wholly-owned subsidiary of Isle of Capri ("Merger Sub"), and
Licensor, Merger Sub shall be merged with and into Licensor, the separate
corporate existence of Merger Sub shall cease and Licensor shall continue as the
surviving corporation and as a wholly-owned subsidiary of Isle of Capri (the
"Merger").
NOW THEREFORE, in consideration of the foregoing premises and the
representations, warranties, covenants and agreements contained herein,
intending to be legally bound hereby, the parties hereto agree as follows:
1. Exclusive License.
x. Xxxxx. Licensor hereby grants to Licensee, and Licensee
accepts, an exclusive fully paid license to use the Property (the "License") in
perpetuity (the "Term") within the Territory, provided, however, that Licensee
may only use the License in Downtown Las Vegas in connection with the Lady Luck
Casino & Hotel (including any expansion of Licensee's business in Downtown Las
Vegas), and further provided that this Agreement shall terminate upon the
consummation of the sale of all of the capital stock of Gemini and the Lady Luck
Casino & Hotel located in Las Vegas, Nevada to Licensor as contemplated by the
Amended and Restated Purchase Agreement. Licensor acknowledges that such sale
may never occur. Such uses shall be limited to use in connection with
(i) the operation of and services provided by hotels, clubs, restaurants and
casinos located in Downtown Las Vegas (the "Operations"), (ii) the advertising,
publicity and promotion (in any and all media and signage now known or hereafter
devised) of the Operations and (iii) the manufacturing, distribution, marketing,
advertising, publicity, promotion and sale of products under or referencing any
of the names, logos, or other items included within the Property (the uses
described in (i) through (iii) are referred to hereinafter as the "Permitted
Uses"). Nothing herein contained shall be construed as an assignment or grant to
Licensee of any right, title, or interest in or to the Property. All rights
relating to the Property, except for the License, are reserved by Licensor;
provided, that it is expressly understood that such reservation of rights
permits each of Licensor, Isle of Capri and its respective affiliates to use or
license others to use(only in a manner substantially similar to the Permitted
Uses), the Property only outside the State of Nevada; provided, further, that
the Gemini Names (as hereafter defined) may not be used by Licensor, or licensed
by Licensor to be used, even outside the State of Nevada (the "Reserved
Rights").
For purposes of this Agreement, "Property" means any of the
following, whether presently existing or hereafter created (A) all registered
and unregistered trade names, trademarks, service marks, copyrights, and rights
under or related to copyrights of Licensor, including without limitation, those
listed on Schedule 1(a) hereto and derivatives thereof; (B) the Internet domain
names of Licensor listed on Schedule 1(a) hereto; (C) all designs, patterns,
colors, symbols, art work, logos, indicia, trade names, corporate names, company
names, business names, trade dress, trade styles, and other source or business
identifiers of the Licensor related to the trademarks, service marks, copyrights
and rights under or related to copyrights of Licensor described in Clause (A)
above; (D) all unpatented secret formulas or processes known to a limited number
of affiliates of Licensor who use such formulas or processes, to a competitive
advantage, with respect to business of the Licensor, including, without
limitation, odds making, player tracking systems and, subject to the last
sentence of this paragraph, the mailing list ("Mailing List") which currently
consists of over five million (5,000,000) casino patrons from within and without
the United States (as updated and expanded from time to time during the term of
this Agreement)(the "Trade Secrets"), and (E) all common law and other rights
therein which relate to the business of the Licensor and including, without
limitation, those listed in Schedule 1(a) hereto. In addition, "Property"
includes, without limitation, any derivations or variations of any of the
foregoing. However, "Property" does not include any names of persons on the
Mailing List who are not customers of, and which are not used in connection with
the marketing of, the Lady Luck Casino & Hotel in Las Vegas, Nevada (the names
included in the Property being called "Gemini Names" and the names not included
in the Property being called "Excluded Names").
b. Territory. For purposes of this Agreement, "Territory" means
Downtown Las Vegas; provided that in the event a Permitted Use by the Licensee
relating to advertising, publicity, promotion, marketing or distribution shall
occur outside Downtown Las Vegas (whether through any on-line service, worldwide
or other computer network (e.g., the Internet), etc., or any other form of
advertising, publicity, promotion, marketing or distribution), each such use
shall not be deemed a breach of this Agreement and is expressly permitted.
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c. Royalty. Licensee shall pay to the Licensor a one-time license fee
of $100, and, from and after the date hereof, Licensee shall have a fully
paid-up License to use the Property as described above.
2. Covenants.
a. Compliance with Laws. Each party agrees to comply in all material
respects with the provisions of applicable law, including without limitation,
the notice provisions of the copyright and trademark law of the United States
and other jurisdictions in the Territory. Each party agrees to place appropriate
notice of any applicable trademark, service xxxx or copyright with respect to
the Property.
b. Ownership and Goodwill.
i. Each party recognizes the value of the goodwill associated with
the Property and acknowledges that all rights based upon or derived from the
Property, including all rights therein and goodwill pertaining thereto, belong
to Licensor, subject to the License, and that the Property has a secondary
meaning in the mind of the public associated with Licensor and, as used subject
to the License, with Licensee. Each party agrees that it will not, during the
Term, do or permit to be done any act that will invalidate, attack or affect in
any manner whatsoever Licensor's rights based upon or derived from the Property
as well as the goodwill associated therewith.
ii. Each party recognizes and acknowledges that any intellectual
property developed by the Licensee or on its behalf ("Developments") that is not
similar to, variations of or derivatives from the Property, whether or not used
in conjunction with any of the Property and/or the Operations, shall belong
exclusively to the Licensee (the "Licensee Property"); provided, however, that
the Licensee shall only own the Developments and not the Property. Licensor
agrees that it will not do or permit to be done any act that will invalidate,
attack or affect in any manner whatsoever Licensee's rights based upon or
derived from the Licensee Property as well as the goodwill associated therewith.
c. Quality. Each party agrees that it shall use, and shall authorize
the use of, the Property with such style, appearance and quality as to be
adequate and suited for exploitation to the best advantage and to the protection
and enhancement of the Property and the goodwill pertaining thereto, and that
such uses shall in no manner reflect adversely upon the Property; provided,
however, that the foregoing does not require that the Lady Luck Casino & Hotel
located in Las Vegas, Nevada, be operated in a different manner than it is
currently operated. Licensee shall submit to Licensor a sample of all uses of
the Property to approve the design and quality of such use of the Property,
which approval shall not be unreasonably withheld, conditioned or delayed and
which approval shall be (i) deemed given, and the submission of a sample shall
not be required, if the uses of the Property by the Licensee are the same as or
similar to (x) the Licensor's past or future practices, (y) the Licensee's past
practices, or (z) uses previously approved by the Licensor, or (ii) evidenced by
written notice executed by Licensor. Licensor's failure to approve or disapprove
any
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such sample by written notice within thirty (30) days of receipt of such sample
shall be deemed approval of such sample.
d. Advertising and Promotion. Each party agrees that it shall not
engage, participate or otherwise become involved in any activity or course of
action including, without limitation, advertising and promotion, that diminishes
and/or tarnishes the image and/or reputation of the Property.
e. Consultation. The parties agree to consult with each other whenever
either party reasonably deems it necessary regarding all new logos and designs
or any other substantive changes with respect to the Property, which would
materially adversely affect the rights, obligations and benefits of either party
to this Agreement.
f. Noninterference; No Encumbrances. Licensor agrees that it shall not
create, incur or suffer to exist any claim, lien, charge or encumbrance upon the
Property or the Excluded Names.
g. Cooperation. Each party agrees to cooperate with the other in
obtaining and enforcing copyright, service xxxx, trade name, trade dress and
trademark protection for the Property, including without limitation, in
connection with suits and claims for infringement of the Property.
h. No Conflicts. The Licensor shall not grant to any third party a
license relating to the Property within the State of Nevada, or authorize or
permit any violation of the rights granted to the Licensee hereunder. The
Licensor shall not, under any circumstances, use or authorize the use of any of
the Reserved Rights within the State of Nevada, or beyond the Permitted Uses.
i. Trade Secrets. Each Party shall not use, disclose or make accessible
the Trade Secrets to any third party, except that each party may disclose the
Trade Secrets only to its personnel and agents that have a need to know the
Trade Secrets and to IMPS (provided IMPS first agrees to be bound by the
foregoing confidentiality covenants). The Licensor shall fully disclose to
Licensee any Trade Secrets, whether now known or hereafter created.
3. Protection of the Property.
a. Enforcement of Property Rights. Each party agrees to assist the
other in protecting the intellectual property rights with respect to the
Property as follows:
i. Registration. Licensor agrees that it shall seek to obtain and
maintain, with counsel reasonably satisfactory to the Licensee, a registration
from the United States Patent and Trademark Office, the United States Register
of Copyrights, appropriate state agencies within the United States, or any other
comparable agencies in other jurisdictions outside of the United States with
respect to uses of the Property by either the Licensee or Licensor or any
modifications thereto or derivations thereof (the "Registrations") and shall
renew all such registrations, as required,
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maintain notices of allowance and otherwise take all appropriate action relating
to the Registrations, including, without limitation, the filing of Statements of
Use, Requests for Extensions of Time to File Statements of Use, Affidavits of
Use and Affidavits of Incontestability. Licensee shall have the right to take
all necessary steps to obtain and maintain the Registrations and take all action
relating to such Registrations as described above where Licensor shall have
failed to do so in a manner satisfactory to Licensee and Licensor shall
reimburse Licensee for its out-of-pocket costs and the fees and expenses of
counsel and other professionals incurred in obtaining and maintaining any
Registration on the Property. All registrations shall be obtained and maintained
in Licensor's name. Each party shall furnish the other with copies of each
registration application filed and registration certificate so obtained, as well
as copies of all other papers relating to the Registration including, without
limitation, correspondence to and from government agencies and third parties
contesting any claim to the Property.
ii. Infringement. Licensor may commence or prosecute any claims or
suits with respect to any infringements or possible infringement of the Property
in its own name. If Licensor elects to prosecute any such claim or suit,
Licensor shall notify Licensee of such election and bear all costs and expenses,
including legal fees, incurred in connection with any such suits and Licensee
shall not institute any suit or take any action on account of any infringements
or possible infringements of the Property without first notifying and consulting
with Licensor. If Licensor elects not to prosecute any such claim or suit within
fourteen (14) days after the receipt of written notice of Licensee requesting it
to do so, then Licensee shall have the right to prosecute any such infringement
or possible infringement. If Licensee elects to do so, costs and expenses,
including legal fees, incurred in connection with any such suits shall be borne
by Licensee (subject to paragraph 4, to the extent applicable). If either party
institutes a suit for infringement pursuant to this Agreement, the other party
shall have the right to participate and represent its interest through other
counsel of its own choosing and at its cost and expense, including legal fees,
incurred in connection with such participation.
iii. Remedies. In the event that either party obtains any recovery
as a result of any claims or suits commenced, prosecuted or settled, the
allocation of such recovery (net of the cost and expenses, including legal fees,
reasonably incurred in connection with any such suit or claim) shall be
allocated as follows: (i) in the event that either party bears all costs and
expenses, including legal fees, incurred in connection with any such claims or
suit, such party shall receive one hundred percent (100%) of any such recovery,
or (ii) in the event that the Licensor and Licensee each bear a portion of the
costs and expenses, including legal fees, incurred in connection with any such
claims or suits, then such recovery shall be allocated between the Licensor and
Licensee in proportion to costs and expenses so incurred.
b. Damages for Failure to Protect the Property. Neither party shall
have any rights against the other for damages or other remedy by reason of
failure to prosecute, or the settlement of, any alleged infringements by others
of the Property; provided, however, that neither party shall enter into a
settlement of any alleged infringements by others of the Property which in
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any way may adversely affect the Property, the License, the Licensor's rights in
the Property or the Licensee's rights granted under the License.
c. Notice of Infringement. Each party agrees to notify the other
promptly in writing of any adverse use of the Property or other designation
similar to the Property of which such party is or becomes aware.
4. Indemnification.
a. Infringement. Licensor covenants and agrees to indemnify and hold
harmless, and to reimburse within thirty (30) days after demand, Licensee and
each subsidiary and affiliate or sub-licensee of Licensee and their respective
successors, assigns, members, partners, stockholders, directors, officers,
agents and employees against any and all liabilities, damages, costs and
expenses (including reasonable attorneys' fees) incident to, arising out of,
resulting from or incurred in connection with any claim that Licensee's use of
the Property in accordance with the terms of this Agreement infringes on the
rights of any third party.
b. Misrepresentation by Licensor. Licensor also agrees to indemnify and
hold harmless Licensee, its subsidiaries, sublicensees and their respective
officers, directors and employees from and against any and all damages, costs
and expenses (including reasonable attorney's fees) incurred by any of them
arising out of or in connection with (i) any misrepresentation or inaccuracy of
Licensor or any of its officers, directors or employees (the "Licensor
Affiliates"), whether contained in the representations and warranties in this
Agreement or otherwise communicated in writing to Licensee, (ii) any breach of
any covenant or agreement of the Licensor or the Licensor Affiliates with the
Licensee, whether contained in this Agreement or otherwise reduced by writing,
and (iii) any use of the Property by the Licensor during the Term.
5. Remedies Upon Breach.
a. Breach. In the event of any breach of this Agreement, the party
alleging such breach shall give written notice of the breach to the breaching
party and shall specify a reasonable period of time (not less than ninety (90)
days) within which the breaching party is to cure the breach.
b. Remedies. In the event that such breach has not been cured within
the specified period, (i) the exclusive remedies of the Licensor shall be as
follows: (x) in the event of a breach of (a) the quality control provisions set
forth in paragraph 2(c) or (b) the territorial use of the Property provisions
set forth in paragraph 1(b) by the Licensee, then the Licensor shall have the
right to obtain an injunction against the Licensee from any court having
jurisdiction over the matter restraining any further breach of such quality
control provisions or of such territorial use provisions with respect to the
particular service or product involved, the granting of which the Licensee shall
not oppose on the grounds that monetary damages are sufficient or to terminate
this Agreement as provided in paragraph 6(iii) and (y) in the event of any
breach by the Licensee, the Licensor shall have the right to seek and receive
monetary damages for breach of contract from the breaching party;
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provided, that it is expressly agreed that in no event shall the Licensor have
the right to terminate or rescind this Agreement or obtain equitable relief,
except as expressly provided herein; and (ii) Licensee shall have the right to
pursue any remedies it may have in law or equity, including, without limitation,
the right to seek to obtain an injunction against the Licensor from any court
having jurisdiction over the matter restraining any further breach, the granting
of which the Licensor shall not oppose on the grounds that money damages are
sufficient.
6. Termination
Licensor may terminate this Agreement upon written notice given to
Licensee in the event of any one of the following:
i. dissolution of Licensee, other than in connection with a
corporate reorganization; and
ii. filing by Licensee of a voluntary petition in bankruptcy,
filing of an involuntary petition in bankruptcy against Licensee (which petition
remains unlifted or unstayed for sixty (60) days), appointment by a court of a
temporary or permanent receiver, trustee or custodian for Licensee's business or
a general assignment by Licensee for the benefit of Licensee's creditors; and
iii. in the event that within a one (1) year period Licensee has
failed to cure at least three (3) material breaches of any agreement, covenant
or obligation contained in paragraph 2(c) within the time period provided in
Section 5(a) of this Agreement. A breach shall be deemed material only if it
results in a material diminution of the value of the Property. For the purposes
of this paragraph 6(iii), a continuing breach shall only be considered a single
breach.
7. Effect of Termination
a. Within sixty (60) days after the termination or expiration of this
Agreement, Licensee shall cease all use of the Property, except that in the case
of signs and other media which cannot reasonably practicably be replaced within
such sixty (60) day period Licensee shall have up to one (1) year from such
termination or expiration to cease such use of the Property.
b. After termination of this Agreement, all rights granted herein shall
revert to Licensor who may continue to license others to use the Property in any
way whatsoever.
c. Licensee acknowledges that its failure to cease all use of the
Property at the termination or expiration of this Agreement as provided in
paragraph 7(a) will result in immediate and irreparable damage to Licensor.
Licensee acknowledges and admits that there is no adequate remedy at law for
failure to cease use of the Property and agrees that in the event of such
failure, Licensor shall be entitled to seek equitable relief by way of
injunctive relief and such other relief as any court with jurisdiction may deem
just and proper.
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8. Representations and Warranties of Gemini. Gemini hereby represents and
warrants as follows:
a. Organization; Authority; Enforceability. Gemini is a corporation,
duly organized, validly existing and in good standing under the laws of the
State of Nevada, and has all requisite power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Gemini, has been duly authorized by all
necessary corporate action, and constitutes the legal, valid and binding
obligation of Gemini enforceable in accordance with its terms.
b. No Conflict or Breach. The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby, and the fulfillment of
the terms hereof, will not (i) constitute, with or without the giving of notice
or passage of time, or both, a breach of any of the terms or provisions of, or a
default under any agreement, indenture or other instrument to which Gemini is a
party or by which it or any of its property is bound, (ii) cause, or give any
person grounds to cause, with or without the giving of notice or passage of
time, or both, the maturity of any material liability or obligation of Gemini to
be accelerated, increased or otherwise affected, or (iii) conflict with Gemini's
Articles of Incorporation or By-laws, or any judgment, decree, order or award of
any court, governmental body or arbitrator binding upon Gemini, or any law,
rule, or regulation applicable to it.
c. Approvals. No consent, action, approval or authorization prescribed
by any law, rule or regulation, or by any agreement to which Gemini is a party,
is required in order to permit the consummation of the transactions contemplated
by this Agreement.
d. No Legal Bar. Gemini is not prohibited by any order, writ,
injunction or decree from consummating the transactions contemplated by this
Agreement, and no action or proceeding is pending or, to the best of Gemini's
knowledge, threatened against Gemini which questions the validity of this
Agreement or any of the actions which the parties hereto have taken in
connection herewith or which it is contemplated they shall take in connection
herewith.
9. Representations and Warranties of Xxxxxxxx. Xxxxxxxx hereby represents
and warrants as follows:
a. No Conflict or Breach. The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby, and the fulfillment of
the terms hereof, will not (i) constitute, with or without the giving of notice
or passage of time, or both, a breach of any of the terms or provisions of, or a
default under any agreement, indenture or other instrument to which Xxxxxxxx is
a party or by which he or any of his property is bound, (ii) cause, or give any
person grounds to cause, with or without the giving of notice or passage of
time, or both, the maturity of any material liability or obligation of Xxxxxxxx
to be accelerated, increased or otherwise
8
affected, or (iii) conflict with any judgment, decree, order or award of any
court, governmental body or arbitrator binding upon Xxxxxxxx, or any law, rule,
or regulation applicable to him.
b. Approvals. No consent, action, approval or authorization prescribed
by any law, rule or regulation, or by any agreement to which Xxxxxxxx is a
party, is required in order to permit the consummation of the transactions
contemplated by this Agreement.
c. No Legal Bar. Xxxxxxxx is not prohibited by any order, writ,
injunction or decree from consummating the transactions contemplated by this
Agreement, and no action or proceeding is pending or, to the best of Xxxxxxxx'
knowledge, threatened against Xxxxxxxx which questions the validity of this
Agreement or any of the actions which the parties hereto have taken in
connection herewith or which it is contemplated they shall take in connection
herewith.
10. Licensor. Licensor represents and warrants as follows:
a. Organization and Authority. Licensor is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. This Agreement
has been duly executed and delivered by Licensor, has been duly authorized by
all necessary corporate action on the part of Licensor, and constitutes the
legal, valid and binding obligation of Licensor, enforceable in accordance with
its terms.
b. No Conflict or Breach. The execution and delivery of this Agreement,
the consummation of the transactions contemplated hereby and the fulfillment of
the terms hereof will not (i) constitute, with or without the giving of notice
or passage of time, or both, a breach of any of the terms or provisions of, or a
default under, any agreement, indenture or other instrument to which Licensor is
a party or by which Licensor or any of its property is bound, (ii) cause, or
give any person grounds to cause, with or without the giving of notice or
passage of time, or both, the maturity of any material liability or obligation
of Licensor to be accelerated, increased or otherwise affected, or (iii)
conflict with Licensor's Certificate of Incorporation or By-Laws, or any
judgment, decree, order or award of any court, governmental body or arbitrator
binding upon Licensor, or any law, rule or regulation applicable to Licensor. To
the Licensor's knowledge, after due inquiry, there are no license agreements,
arrangements or understandings with respect to the Property other than this
Agreement, and Licensor has no obligation to grant a License to or enter into an
agreement, arrangement or understanding with any third party with respect to the
Property.
c. Approvals. No consent, action, approval or authorization prescribed
by any law, rule or regulation or any agreement to which Licensor is a party is
required in order to permit the consummation of the transactions contemplated by
this Agreement.
d. No Legal Bar. Licensor is not prohibited by any order, writ,
injunction or decree from consummating the transactions contemplated by this
Agreement, and no action or proceeding is pending or, to the best of Licensor's
knowledge, threatened against Licensor which
9
questions the validity of this Agreement or any of the actions which the parties
hereto have taken in connection herewith, or which it is contemplated they shall
take in connection herewith. To the Licensor's knowledge, after due inquiry,
there is no action or proceeding relating to the Property, or any legal,
administrative or other proceeding that may adversely affect the License or the
Property.
e. Solvency; Fraudulent Conveyance. The liabilities of the Licensor do
not exceed its assets. Immediately after giving effect to the License pursuant
to the terms of this Agreement, the Licensor will not (i) be rendered insolvent,
(ii) be left with unreasonably small capital with which to engage its business
or (iii) have incurred indebtedness beyond its ability to pay such indebtedness
as it matures. No transfer of property is being made and no obligation is being
incurred in connection with the transactions contemplated by this Agreement with
the intent to hinder, delay or defraud either present or future creditors of the
Licensor.
11. Miscellaneous.
a. Effectiveness. As a condition precedent to the effectiveness of any
of the terms of this Agreement, Licensor shall have consummated the Merger in
accordance with the terms of the Merger Agreement. If the Merger is not
consummated in accordance with the terms of the Merger Agreement, the terms of
this Agreement shall be given no effect. This Agreement shall become effective
on the First Closing Date (as defined in the Amended and Restated Purchase
Agreement).
b. No Waiver. No action taken by any party hereto shall be deemed to
constitute a waiver by such party of compliance with any covenant or agreement
contained in this Agreement; no course of dealing between the parties hereto and
no failure or delay on the part of any party hereto in exercising any right,
power, or privilege hereunder shall operate as a waiver thereof and no single or
partial exercise of any right, power or privilege shall preclude any other or
future exercise thereof or the exercise of any other right, power or privilege.
c. Entire Agreement; Amendments. This Agreement along with the
Schedules hereto constitute the entire agreement, and supersedes all prior and
contemporaneous agreements and understandings, whether oral or written, between
the parties hereto with respect to the subject matter hereof. No modification,
amendment or waiver of any provision of this Agreement shall be effective unless
in writing and signed by the party or parties against whom enforcement thereof
is sought, and any such waiver or consent shall be effective only in the
specific instance and for the purpose for which given.
d. Assignment. The parties may assign the License or any of their
respective rights hereunder; provided, however, that (i) the Licensee may only
assign the License to a party who is purchasing the Lady Luck Casino & Hotel
located in Las Vegas, Nevada, or to any of its affiliates, and (ii) any such
assignment shall not become effective until such time as (1) the assignee
executes an instrument binding it to the terms of this Agreement, (2) the
assigning party provides written notice of such assignment to the other party,
and (3) in the event of an assignment by the
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Licensor, the Licensor provides an opinion of counsel (reasonably satisfactory
to the other party) stating that any such assignment includes all of the
goodwill associated with the Property, that all of the Property shall be
assigned and that any such transaction shall not constitute an "assignment in
gross" or might otherwise adversely affect the Property or the License.
e. Power of Attorney. Licensor hereby makes, constitutes and appoints
Licensee its true and lawful attorney, in its name, place and stead, to execute
documents, and take actions on behalf of the Licensor for the limited purpose of
carrying out the terms and conditions of this Agreement, which permit Licensee
to act on behalf of Licensor.
f. Specific Performance; Jurisdiction. Licensor and Licensee each
acknowledge that the License is unique and that Licensor and/or Licensee may
have no adequate remedy at law for the failure by either of them to perform
their respective obligations hereunder. Accordingly, Licensor and Licensee each
agrees that, subject to the provisions of paragraph 5(a), in the event of any
such failure, the non breaching party shall have the right to obtain an
injunction as set forth in paragraph 5(b).
g. Notices. Any notice, demand, request, waiver, or other communication
under this Agreement shall be in writing (including facsimile or similar
writing) and shall be deemed to have been duly given (i) on the date of service
if personally served, (ii) on the third day after mailing if mailed to the party
to whom notice is to be given, by first class mail, registered, return receipt
requested, postage prepaid, or (iii) on the date sent if sent by telecopier, to
the parties at the following addresses or facsimile numbers (or at such other
address or facsimile number for a party as shall be specified by like notice):
If to Licensor to:
Lady Luck Gaming Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
With a copy to:
Isle of Capri Casinos, Inc.
711 Xx. Xxxxxx Xxxxxx Xxxx, Xx. Blvd.
Biloxi, Mississippi 39530
Attention: Chief Financial Officer
Fax No.: (000) 000-0000
Xxxxx, Xxxxx & Xxxxx
000 Xxxxx Xx Xxxxx Xxxxxx
00
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx, Esq.
Fax No.: (000) 000-0000
If to Gemini, Inc., to:
Gemini, Inc.
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Fax No.: (000) 000-0000
If to Xxxxxxxx, to:
Xxxxxx X. Xxxxxxxx
c/o Lady Luck Casino Hotel
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Fax No.: (000) 000-0000
With a copy in the case of Gemini and Xxxxxxxx to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Fax No.: (000) 000-0000
and a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
1700 Bank of America Plaza
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax No.: (000) 000-0000
h. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of and be enforceable by the parties hereto and their respective
successors, assigns, heirs and legal representatives.
i. Severability. The invalidity of all or part of any paragraph of this
Agreement shall not render invalid the remainder of such paragraph or of this
Agreement. If any provision of
12
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
j. Headings. The headings of this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this Agreement.
k. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
taken together shall be deemed to constitute a single instrument.
l. Choice of Law and Venue; Jury Trial Waiver. The validity of this
Agreement, its construction, interpretation, and enforcement, and the rights of
the parties hereto with respect to all matters arising hereunder or related
hereto shall be determined under, governed by, and construed in accordance with
the laws of the State of Nevada, without giving effect to its conflict of law
principles. The Licensor and the Licensee waive their respective rights to a
jury trial of any claim or cause of action based upon or arising out of this
Agreement or any of the transactions contemplated therein, including contract
claims, tort claims, breach of duty claims, and all other common law or
statutory claims. The Licensor and the Licensee represent that each has reviewed
this waiver and each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. Any and all service of process shall
be effective against any party if given personally or by registered or certified
mail, return receipt requested, or by any other means of mail that requires a
signed receipt, postage prepaid, mailed to such party as herein provided.
Nothing herein contained shall be deemed to affect the right of any party to
serve process in any manner permitted by law.
m. Franchise. The parties acknowledge and agree that this Agreement is
an intellectual property rights license agreement and does not constitute, and
shall not be construed as, a franchise agreement. The parties further
acknowledge and agree that state and federal franchise laws do not and will not
apply to this Agreement or to the relationship between Licensee and Licensor and
their respective rights and obligations hereunder.
n. Further Assurances. The parties hereto hereby agree to execute and
deliver any further instruments, certificates and documents as may be reasonably
requested from each such party by any of the parties hereto in order to carry
out the terms and conditions of this Agreement.
o. Construction. Neither party shall assert that the other is the
drafting party for purposes of interpretation of this Agreement.
p. Attorneys' Fees. In any legal action or other proceeding brought to
enforce or interpret the terms of this Agreement, the prevailing party or
parties shall be entitled to reasonable attorneys' fees.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered, or
have caused this Agreement to be executed and delivered by their duly authorized
representative, as of the date first above written.
LADY LUCK GAMING CORPORATION
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
GEMINI, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxx
14
Schedule 1(a)
PROPERTY
The term "Property" as used in this Agreement shall include the
following applications, registrations and Internet domain names:
--------------------------------------------------------------------------------
Xxxx Registration No. Issued Renewal/8&15 Due
---- ---------------- ------ ----------------
LADY LUCK 1,165,866 8/18/81 Renewal Due 8/18/2001
--------------------------------------------------------------------------------
LADY LUCK & Design 1,165,867 8/18/81 Renewal Due 8/18/2001
--------------------------------------------------------------------------------
LADY LUCK & Design 1,165,868 8/18/81 Renewal Due 8/18/2001
--------------------------------------------------------------------------------
LUCKY LADY 1,528,853 3/7/89 Renewal Due 3/7/2009
--------------------------------------------------------------------------------
LADY LUCK 1,530,253 3/14/89 Renewal Due 3/14/2009
--------------------------------------------------------------------------------
LADY LUCK 1,650,606 7/16/91 Renewal Due 7/16/2001
--------------------------------------------------------------------------------
XXXXX XXXX'X 1,726,344 10/20/92 Renewal Due
10/20/2002
--------------------------------------------------------------------------------
LADY LUCK 1,613,796 9/18/90 Renewal Due 9/18/2000
--------------------------------------------------------------------------------
BLUSHING LADY 1,636,938 3/5/91 Renewal Due 3/5/2001
--------------------------------------------------------------------------------
LADY LUCK 1,847,065 7/26/94 8 & 15 Due 7/26/2000
--------------------------------------------------------------------------------
MAD MONEY 1,535,814 4/18/89 Renewal Due 4/18/2009
--------------------------------------------------------------------------------
MAD MONEY & Design 1,535,808 4/18/89 Renewal Due 4/18/2009
--------------------------------------------------------------------------------
LADY LUCK 2,166,197 6/16/98 8 & 15 Due 6/16/2004
EXPERIENCE
--------------------------------------------------------------------------------
LADY LUCK 2,238,666 4/13/99 8 & 15 Due 4/13/2005
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Xxxx Serial No. Filed Status
--------------------------------------------------------------------------------
XXXXX XXXX 75/486,489 5/18/98 Cancellation Pending
--------------------------------------------------------------------------------
THE PLAYER'S PLACE 75/578,185 10/26/98 Application Pending
--------------------------------------------------------------------------------
Schedule 1(a)(cont.)
Internet domain names:
1. xxxxxxxx.xxx
2
