Exhibit 10.11(b)
FIRST AMENDMENT TO THE LICENSE AGREEMENT
First Amendment to the License Agreement (this "Amendment"), dated as
of July 1, 2003, by and among Interactive Systems Worldwide Inc. (formerly
known as International Sports Wagering Inc.) ("ISW"), a corporation organized
under the laws of the State of Delaware and Global Interactive Gaming Limited
(formerly known as Global Interactive Gaming AG, a Swiss Corporation) ("GIG"),
an English corporation.
RECITALS
WHEREAS, ISW and GIG are parties to a License Agreement, dated as of
March 17, 2000 (the "License Agreement"); and
WHEREAS, on July 31, 2002, ISW Acquisition Co., LLC, a Delaware limited
liability company and a wholly-owned subsidiary of ISW, acquired 100% of the
issued share capital of GIG (the "Acquisition"); and
WHEREAS, in connection with the Acquisition, (i) ISW and GIG terminated
(x) the Escrow Account and the Escrow Agreement established pursuant to Section
5.6 of the License Agreement and (y) the Software Escrow Agreement established
pursuant to Section 13.1 of the License Agreement and (ii) certain of the
warrants issued by ISW to GIG pursuant to that certain warrant agreement were
assigned by GIG at closing of the Acquisition to certain of its shareholders and
the remaining warrants held by GIG were subsequently cancelled; and
WHEREAS, ISW and GIG desire to amend the License Agreement as provided
herein.
Now therefore, in consideration of the mutual promises herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
(c) Amendment Effective Date
This Amendment is effective as of November 16, 2002 (the "Amendment
Effective Date") without any further action by the parties to this Amendment.
(d) Amendments to the License Agreement
The License Agreement is hereby amended as of the Amendment Effective
Date as follows:
(1) Paragraph D of Article One of the License Agreement is hereby
deleted in its entirety.
(2) The definition of "Territory" set forth in Section 2.1 of the
License Agreement is hereby deleted in its entirety and the following is placed
in its stead:
"Territory" shall mean the United Kingdom, the Republic of
Ireland and their respective territories.
(3) The following Defined Terms and their corresponding Section
References shall be deleted from Section 2.2 of the License Agreement:
"Acceptance"
"Acceptance Notice"
"Acceptance Testing"
"PRMs"
"Software Escrow"
"Warrant Agreement"
(4) Section 3.1(a) of the License Agreement is hereby deleted in its
entirety and the following is placed in its stead:
"Licensor hereby grants to Licensee, subject to the terms and
conditions of this Agreement, a non-exclusive license (the "License")
to use the Licensed Technology, in the Field of Use, within the
Territory and at the Designated Locations."
(5) The first sentence of Section 3.7 of the License Agreement is
hereby deleted in its entirety and the following is placed in its stead:
"Upon the express written consent of ISW which consent may be
granted or withheld by ISW in its sole discretion, Licensee shall be
permitted to sublicense the Licensed Technology to any person or entity
in the Territory, subject to the following conditions:"
(6) Section 4.4 of the License Agreement is hereby deleted in its
entirety.
(7) Section 4.5 of the License Agreement and all references thereto in
the License Agreement are hereby deleted in their entirety.
(8) Section 4.6 of the License Agreement and all references thereto in
the License Agreement are hereby deleted in their entirety.
(9) Section 4.8 of the License Agreement and all references thereto in
the License Agreement are hereby deleted in their entirety.
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(10) Section 7.1 of the License Agreement is hereby deleted in its
entirety and the following is placed in its stead:
"This Agreement shall commence on the Effective Date and shall
terminate upon expiration of the last to expire of the Patents (the
"Term"). Upon the expiration of the Term of this Agreement in
accordance with this Section 7.1, Licensee shall hold a fully paid up
non-exclusive license to the Licensed Technology in the Territory, in
the Field of Use."
(11) Section 8.6 of the License Agreement is hereby deleted in its
entirety.
(12) Article 13 of the License Agreement is hereby deleted in its
entirety.
(13) Section 15.15 of the License Agreement is hereby deleted in its
entirety and the following is placed in its stead:
"All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by any party to any
other party pursuant to this Agreement shall be in writing and shall be
mailed by first-class' registered or certified mail, return receipt
requested, postage prepaid, or transmitted by hand delivery (including
delivery by courier), telegram or facsimile, addressed as follows:
(i) If to Licensor:
Interactive Systems Worldwide Inc.
Two Xxxxxxx Drive, 2nd Floor
West Paterson, New Jersey 07424
United States of America
Attention: President
Fax: 000- 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxxxx Xxxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: 000-000-0000
(ii) If to Licensee:
Global Interactive Gaming Limited
Centre Point Tower
000 Xxx Xxxxxx Xxxxxx
Xxxxxx, XX0X 1 DD
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Attention: General Counsel
Fax: x00 (0) 00 0000 0000
(14) Section 15.17(b) the License Agreement is hereby deleted in its
entirety.
(15) Section 15.19 of the License Agreement is hereby deleted in its
entirety and the following is placed in its stead:
"Any dispute or controversy under this Agreement shall be
finally resolved in binding arbitration to be held in New York, New
York, pursuant to the Commercial Arbitration Rules of the American
Arbitration Association (the "AAA"). The arbitration panel shall
consist of three arbitrators appointed in accordance with such Rules,
all of whom shall have experience with computer software and licensing
matters as finally determined by the AAA. All testimony shall be
transcribed and any award shall be accompanied by written findings of
fact and a written statement of reasons for the decision and such
findings and written materials shall be deemed to be Proprietary and
Confidential Information. All costs of the arbitration including but
not limited to reasonable attorney's fees and costs of investigating
and pursuing the arbitration, expert witnesses and other similar
expenses may be awarded to the prevailing party in arbitration as the
arbitrators see fit. Judgment upon any award made in such arbitration
may be entered and enforced in and by any court of competent
jurisdiction. Notwithstanding the foregoing, each party shall preserve
the right to seek injunctive or other interim relief in aid of
arbitration before a court of competent jurisdiction. Both parties
consent to any suit, action or proceeding being brought for such
purpose to be brought exclusively in the federal or state courts
sitting in New York, New York. Both parties irrevocably waive any
objection that they now have or hereafter may have to the laying of
venue of any suit, action or proceeding brought in any such court and
further irrevocably waive any claim that any such suit, action or
proceeding brought in any such court has been brought in an
inconvenient forum. Each party hereby designates the following as their
agents for service of all process pursuant to this Agreement:
United Corporate Services Inc.
00 Xxxx Xxxxx Xxxxxx
Xxxxx, XX 00000
(16) Article 18 of the License Agreement is hereby deleted in its
entirety.
(e) Miscellaneous
(a) Governing Law.
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This Amendment, the rights and the obligations of the parties hereto,
and any claims or disputes relating thereto, shall be governed by and construed
in accordance with the laws of the State of New York without regard to
principles of conflict of laws.
(b) Counterparts.
For the convenience of the parties, this Amendment may be executed in
two counterparts. It shall not be necessary that the signature of or on behalf
of each party appears on each counterpart, but it shall be sufficient that the
signature of or on behalf of each party appears on one or more of the
counterparts.
(c) Definitions.
Capitalized terms used herein but not otherwise defined herein shall
have the meanings ascribed to them in the License Agreement.
[signature page follows immediately]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
INTERACTIVE SYSTEMS WORLDWIDE INC.
By:/s/ Xxxxx Xxxxxx
----------------
Name: Xxxxx Xxxxxx
Title: Chairman
GLOBAL INTERACTIVE GAMING LIMITED
By:/s/ Xxxxxxx Xxxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
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