Exhibit 10.4
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of
February 15, 2006 (the "Effective Date"), by and between Cantor G&W (Nevada),
L.P., a Nevada limited partnership ("Purchaser"), and Gaming & Entertainment
Group, Inc., a Utah corporation ("GET USA"), and Gaming & Entertainment
Technology Pty Limited, an Australian corporation ("GET Systems" and together,
with GET USA, "Seller"). Purchaser and Seller are collectively referred to
herein as the "Parties" and individually as a "Party".
RECITALS
WHEREAS, the Parties previously entered into a Loan Facility and
Investment Agreement, dated as of December 8, 2005 (the "Investment Agreement"),
pursuant to which Purchaser agreed to provide a senior secured financing
facility to GET USA of up to Two Million Dollars ($2,000,000.00), evidenced by a
senior secured convertible note (the "Note"), and GET USA issued to Purchaser an
Equity Warrant and a Debt Warrant (each as defined in the Investment Agreement);
WHEREAS, in connection with the Investment Agreement, the Parties entered
into an Amended and Restated Software Development and License Agreement, dated
as of December 8, 2004 (the "License Agreement"), pursuant to which Seller
licenses certain software (the "Software") to Purchaser and Purchaser agrees to
pay certain royalties to Seller based on a percentage of Client Net Revenue (as
defined in the License Agreement);
WHEREAS, in connection with the Investment Agreement, certain stockholders
of GET USA entered into an Option Agreement and Irrevocable Proxy (the "Option
Agreement") granting Purchaser certain options and rights to the shares held by
such stockholders;
WHEREAS, Purchaser desires to purchase the Software and certain other
assets from Seller, all as described in Exhibit A hereto (collectively with the
Software and including all domestic and foreign intellectual property rights
related thereto, the "Assets"), and to restructure its relationship with Seller
by, among other things, (i) terminating the License Agreement, (ii) terminating
the Investment Agreement, (iii) amending the Note and the Security Agreement
related thereto; (iv) amending the terms of the Equity Warrant; and (v)
terminating the Option Agreement, all upon the terms and conditions set forth in
this Agreement; and
WHEREAS, Seller desires to sell the Assets to Purchaser and to so
restructure its relationship with Purchaser, upon the terms and conditions set
forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and of the respective
representations and warranties hereinafter set forth and the respective
covenants and agreements contained herein, and intending to be legally bound
hereby, the Parties agree as follows:
ARTICLE I. PURCHASE AND SALE OF ASSETS.
1.1 Purchase and Sale of Assets. Upon the terms and subject to the
conditions set forth in this Agreement, at the Closing (defined below), Seller
shall sell, transfer, convey, assign and deliver to the Purchaser all legal
right, title and interest in and to the Assets.
1.2 No Assumed Liabilities. Purchaser is not assuming any debts,
obligations or liabilities of Seller whatsoever, whether known or unknown,
actual or contingent, matured or unmatured, currently existing or arising in the
future, all of which shall remain the responsibility of Seller, including,
without limitation, any liability of Seller for taxes which arise, are assessed
or become payable or due as of or prior to the Effective Date or arise out of
the consummation of the transactions contemplated hereby or payable by Seller as
a result of purchases, sales or transfers as of or prior to the Closing Date, or
other taxes of any kind or description except current personal property taxes
with respect to the Assets to the extent such taxes relate to periods subsequent
to the Effective Date (collectively, the "Excluded Liabilities").
1.3 Escrow of Software Pending Closing. Seller has previously deposited
into escrow (the "Escrow") with BMM International Pty Ltd. (the "Escrow Agent")
the source and object code representing the Software. On or prior to the
Closing, the Escrow Agent shall verify the source code pursuant to the Escrow
Agreement. The costs associated with the Escrow shall be shared equally by the
Parties. The terms of the Escrow shall be governed by the Amended and Restated
Source Code Escrow Agreement, dated as of December 8, 2004, by and among, GET
USA, GET Systems, Xxxxxxxx Xxxx & Brandeis LLP and the Escrow Agent.
1.4. Purchase Price and Method of Payment. The total purchase price (the
"Purchase Price") to be paid by Purchaser for the Assets shall be (i) Five
Hundred Thousand Dollars ($500,000.00), payable at the Closing via wire transfer
to Seller's bank account as follows:
Xxxxx Fargo Bank, N.A.
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxx 00000
ABA No. 000000000
Account No. 7961251605
Account Name: Gaming & Entertainment Group, Inc.;
and (ii) the amount of debt forgiven pursuant to the Amended Note as provided in
Section 2.3 and the Amended Note. The Parties agree that the warrants to be
surrendered by Purchaser pursuant to Sections 2.5 and 2.6 have no value.
1.5 Closing Deliveries by Seller. At the Closing, or three business days
prior thereto in the case of Section 1.5(a), Seller shall execute and deliver
the following:
(a) A notice under the Escrow Agreement requesting and authorizing
that the Escrow Agent release from escrow to Purchaser the source and object
code representing the Assets in the form of CD(s), DVD(s) and/or computer hard
drives;
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(b) such deeds, bills of sale, certificates of title, endorsements,
assignments and other good and sufficient instruments of sale, conveyance and
transfer and assignment in form and substance reasonably satisfactory to
Purchaser sufficient to sell, convey, transfer and assign to Purchaser all
right, title and interest of Seller in and to the Assets; and
(c) certified copies of resolutions, duly adopted by the Board of
Directors, which shall be in full force and effect at the time of the Closing,
authorizing the execution, delivery and performance by Seller of this Agreement
and the consummation of the transactions contemplated hereby; and
(d) such other documents as are necessary to complete the
transactions contemplated by this Agreement and reasonably requested by
Purchaser.
1.5 Closing. The closing (the "Closing") of the purchase and sale of the
Assets shall be held at 10:00 a.m. New York time on February 15, 2006 or on any
other date or time as is mutually agreed by the parties hereto at the offices of
Purchaser, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
1.6 Continuing Duties Regarding Intellectual Property. At any time, upon
Purchaser's request, Seller shall cooperate fully with Purchaser in perfecting
or otherwise securing all intellectual property rights in the Assets to
Purchaser. Seller shall execute, and shall direct its employees and agents to
execute, any documentation as Purchaser may request from time to time in order
to establish, secure, maintain, increase or protect Purchaser's ownership of the
Assets, including all intellectual property rights in the Assets. Seller shall
cooperate fully with Purchaser and shall take other actions as Purchaser may
request in order to establish, secure, maintain, increase or protect Purchaser's
ownership of the Assets, such as providing testimony, or directing its employees
and agents to provide testimony, in support of inventorship.
ARTICLE II. RESTRUCTURING OF EXISTING AGREEMENTS; OTHER MATTERS.
2.1 Termination of License Agreement. The License Agreement shall be
deemed terminated effective upon the Closing. Notwithstanding the termination of
the License Agreement, Seller shall continue to provide services to Purchaser in
accordance with the existing development plan through the Transfer Date (as
defined below).
2.2 Termination of Investment Agreement. The Investment Agreement shall be
deemed terminated as of the Closing.
2.3 Amendment of Note. At the Closing, the parties shall execute and
deliver an amendment to the Note in substantially the form set forth as Exhibit
B hereto (the "Amended Note").
2.4 Amendment of Security Agreement. At the Closing, the Parties shall
execute and deliver an amendment to the Security Agreement, dated as of August
31, 2004, by and among GET USA, GET Systems and Purchaser in substantially the
form set forth as Exhibit C hereto (the "Amended Security Agreement").
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2.5 Amendment of Equity Warrant. At the Closing, Purchaser and GET USA
shall execute and deliver an amendment and restatement of the Equity Warrant in
substantially the form set forth as Exhibit D hereto (the "Amended Equity
Warrant" and collectively with the Amended Note and Amended Security Agreement,
the "Related Agreements").
2.6 Termination of Option Agreement. The Option Agreement shall be deemed
terminated as of the Closing, and the Option Shares (as defined therein) shall
be delivered to GET USA for distribution to the holders thereof.
2.7 Employment Matters.
(a) At the Closing, the Employment Agreement between GET USA and
Xxxxx X. Xxxxxx ("Xxxxxx"), dated September 1, 2004, shall be deemed terminated,
and Xxxxxx shall have no continuing obligations under such Employment Agreement,
including, without limitation, under Sections 7, 8, 9 and 11. Seller
acknowledges and agrees that Burman shall be employed exclusively by Purchaser
from and after the Effective Date. In addition, GET USA shall waive its right to
inventions, solely conceived and developed by Xxxxxx, as of the day immediately
prior to Burman's first day of employment with Purchaser.
(b) Seller acknowledges that following the Closing, Purchaser
intends to make offers of employment to the employees of Seller identified on
Exhibit E hereto and agrees that the employees who accept such offer of
employment with Purchaser (each, a "Transferred Employee") shall be employed
exclusively by Purchaser as of February 15, 2006 (the "Transfer Date"). Seller
shall not take any action directly or indirectly that could reasonably be
expected to negatively influence any employee's decision to accept employment
with Purchaser. Each Transferred Employee shall receive credit from Purchaser,
in accordance with the policies applicable to other employees of Purchaser, for
accrued vacation as an employee of Seller as of the Transfer Date. Nothing in
this Section 2.8(b) shall be construed to entitle any Transferred Employee to
remain in the employ of Purchaser or affect the right of Purchaser to terminate
any Transferred Employee at any time.
2.8 Termination of Escrow Agreement. At the Closing, the Parties shall
execute and deliver to the Escrow Agent a notice of termination pursuant to
Section 6 of the Escrow Agreement.
2.9 Consulting Services Transition Agreement. At the Closing, GET USA,
Purchaser, Absolute Game Ltd. and Xxxxx Xxxxxxxxx shall enter into the
Consulting Services Transition Agreement in substantially the form attached
hereto as Exhibit F.
ARTICLE III. ALLOCATION OF PURCHASE PRICE
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3.1 Allocation of Purchase Price. The Purchase Price shall be allocated
for federal income tax purposes among the Assets in accordance with Schedule 3.1
hereto. Subject to the requirements of applicable law, such allocation (and any
amendments thereto by reason of adjustments to the Purchase Price hereunder)
shall be binding upon the parties for the purposes of filing any return, report
or schedule regarding taxes.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER.
4.1 Existence and Good Standing; Corporate Actions. Each of GET USA and
GET Systems is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. All corporate or
other actions and proceedings necessary to be taken by or on the part of Seller
in connection with the execution and delivery of this Agreement, the Related
Agreements and the consummation of the transactions contemplated hereby and
thereby, including the obtaining of approval by the directors and shareholders
of Seller, have been duly and validly taken, and this Agreement and the Related
Agreements have been duly and validly authorized, executed and delivered by
Seller and constitute the legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with and subject to their respective
terms.
4.2 No Defaults. Neither the execution, delivery or performance by Seller
of this Agreement or the Related Agreements nor the consummation by Seller of
the transactions contemplated hereby or thereby is an event that, of itself or
with the giving of notice or the passage of time or both, will:
(a) Violate or conflict with the provisions of constitution or
organizational documents of Seller;
(b) Violate or conflict with or result in any breach of or any
default under, result in any termination or modification of, or cause any
acceleration of any obligation under, any contract, mortgage, indenture,
agreement, lease or other instrument to which Seller is a party or by which it
is bound, or by which it may be affected, or result in the creation of any lien
or encumbrance upon any of Seller's assets; or
(c) Violate any judgment, decree, order, statute, rule or regulation
applicable to Seller.
4.3 Breach. Seller is not in violation or breach of any of the terms,
conditions or provisions of its constitution or organizational documents, or any
indenture, mortgage or deed of trust or other contracts, lease, instrument,
court order, judgment, arbitration award, or decree materially affecting the
business of Seller, to which Seller is a party or by which it is otherwise
bound, where the effect thereof would have a material adverse effect on Seller.
4.4 Approvals and Consents. No approvals or consents of persons or
entities, not a party to this Agreement or the Related Agreements, are legally
or contractually required to be obtained by Seller in connection with the
consummation of the transactions contemplated by this Agreement and the Related
Agreements. No permit, license, consent, approval or authorization of, or filing
with, any governmental regulatory authority or agency is required in connection
with the execution, delivery and performance of this Agreement or the Related
Agreements, or the consummation of the transactions contemplated hereby and
thereby.
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4.5 Title to Assets. Seller has good, valid and marketable title to all of
the Assets, free and clear of all liens, charges, encumbrances, claims and
security interests of every kind or character. Buyer, by this Agreement, will
acquire good and marketable title to all of the Assets, free of all liens,
charges, encumbrances, claims and security interests.
4.6 No United States Xxxxxx or Violations of Gaming Laws. The Software has
never been used to accept or process any bets or xxxxxx, or engage in any gaming
or gambling activities of any nature whatsoever, in, originating from, or with
respect to, the United States and all states and municipalities thereof, or used
in violation of any gaming laws or regulations of any country through the world
(including the United States) and all governmental municipalities thereof.
4.7 Compliance with Applicable Law and Regulations. Seller is in
compliance with all requirements of law, federal, state and local, and all
requirements of all governmental bodies or agencies having jurisdiction over it
with respect to the Assets.
4.8 Litigation. There are no suits, judgments, arbitrations,
administrative charges or other legal proceedings, claims or governmental
investigations pending against, or to Seller's knowledge, threatened against
Seller. There are no lawsuits, legal proceedings or investigations of any nature
pending or, to Seller's knowledge, threatened against or affecting it which
would impair Seller's ability to carry out the transactions contemplated by this
Agreement or the Related Agreements.
4.9 No Broker or Finder. Seller has not employed or used the services of
any broker or finder in connection with this transaction and Seller shall hold
Purchaser completely free and harmless from the claims of any person claiming to
have so acted on behalf of Seller.
4.10 Software; Authorship. The Software was created and written at the
direction of Purchaser. Seller approves, understands and is aware that Purchaser
has employed, or is in the process of employing, employees of Seller who wrote
the code that governs proper accounting, monetary transfers, security, and fair
and proper game operations in the Software. The Software is a complete and
correct version of all source code, a complete and correct compiled and
executable version of the Software, a complete and correct set of all
installation scripts and programs, and a complete and correct set of all
documentation, manuals, user guides, handbooks and reference manuals relating to
the Software, all as independently verified by the Escrow Agent pursuant to the
Escrow Agreement. The following (i) and (ii) are the sole and exclusive property
of Seller, whether by operation of law or by valid and legally-binding
agreement, and will be conveyed to Purchaser at the Closing:(i) all inventions
developed by the employees of Seller or by anyone otherwise on behalf of or for
the benefit of Seller solely to the extent relating to the Assets, during their
respective course of employment by, affiliation with or engagement by Seller;
and(ii) all domestic or foreign intellectual property rights based on the Assets
(such intellectual property rights including all rights under copyright, patent,
trademark, trade secret and other intellectual property laws). All employees
have assigned all their potential intellectual property rights in the Assets to
Seller.
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4.11 No Known Adverse Intellectual Property. Seller is not aware of any
adverse Intellectual Property of any third party, including (i) any domestic or
foreign patents, patent applications, copyrights or other intellectual property
that Purchaser would need to acquire any rights under in order to utilize the
Assets, (ii) any suit, threatened suit, implied suit or contemplated suit
against Seller based on any domestic or foreign patent, copyright, trademark
trade secret, or other intellectual property right.
4.12 Seller has not filed any domestic or foreign patents or patent
applications, either in its own name or in the name of its employees.
4.13 Seller is not aware of any of its employees having filed for patent
rights, copyright or other intellectual property right that could be considered
as either (i) being properly owned or ownable by Seller, or (ii) impeding the
utilization by Purchaser of the Assets.
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
5.1 Corporate Actions. All partnership action and proceedings necessary to
be taken by or on the part of Purchaser in connection with the execution and
delivery of this Agreement, the Related Agreements and the consummation of the
transactions contemplated hereby and thereby, including the obtaining of
approval by the general partner of Purchaser, have been duly and validly taken,
and this Agreement and the Related Agreements have been duly and validly
authorized, executed and delivered by Purchaser and constitute the legal, valid
and binding obligation of Purchaser, enforceable against Purchaser in accordance
with and subject to their respective terms.
5.2 No Defaults. Neither the execution, delivery or performance by
Purchaser of this Agreement or the Related Agreements nor the consummation by
Purchaser of the transactions contemplated hereby or thereby is an event that,
of itself or with the giving of notice or the passage of time or both, will:
(a) Violate or conflict with the provisions of the limited
partnership agreement, or otherwise, of Purchaser;
(b) Violate or conflict with or result in any breach of or any
default under, result in any termination or modification of, or cause any
acceleration of any obligation under, any contract, mortgage, indenture,
agreement, lease or other instrument to which Purchaser is a party or by which
it is bound, or by which it may be affected, or result in the creation of any
lien or encumbrance upon any of Purchaser's assets; or
(c) Violate any judgment, decree, order, statute, rule or regulation
applicable to Purchaser.
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5.3 Approvals and Consents. All approvals and consents of entities not a
party to this Agreement, legally and contractually required, have been obtained
by Purchaser in connection with the execution and delivery of this Agreement and
the Related Agreements and the consummation of the transactions contemplated
hereby and thereby.
5.4 Litigation. There are no lawsuits, judgments, arbitrations,
administrative charges or other legal proceedings, claims or governmental
investigations pending against, or to Purchaser's knowledge, threatened against
the Purchaser relating to or affecting the execution, delivery or performance of
this Agreement or the Related Agreements or the ability of Purchaser to perform
its obligations under this Agreement or the Related Agreements.
5.5 No Broker or Finder. Purchaser has not employed or used the services
of any broker or finder in connection with this transaction and shall hold
Seller completely free and harmless from the claims of any person claiming to
have so acted on behalf of Purchaser.
ARTICLE VI. COVENANTS.
6.1 Disclosure. Other than the requisite disclosures required by the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), without the
prior written consent of Purchaser, Seller will not make, and will direct its
representatives not to make, directly or indirectly, any public comment,
statement or communication with respect to, or otherwise to disclose or to
permit the disclosure of the existence of discussions regarding, a possible
transaction between Purchaser and Seller, conditions, or other aspects of the
transaction proposed in this Agreement. Any disclosure of the transactions
contemplated hereby, including but not limited to press releases and other
disclosure, shall be made only after Purchaser shall have been provided at least
two (2) business days to review and comment thereon and shall have approved of
such disclosure. If requested, the Company shall cooperate and use best efforts
to seek a protective order to keep the details hereof confidential.
6.2 Use of Assets. For so long as Seller, or any third party (excluding
Purchaser) to whom Seller sells or licenses (on an exclusive or non-exclusive
basis) the Software for use in any application in which part of the Software is
physically located within a Slot Machine Cabinet (the "Preserved Purpose"),
Purchaser shall not use, license or sell the Software for the Preserved Purpose.
For purposes of this Agreement, "Slot Machine Cabinet" means a cabinet such as
those set forth as Xxxx Industries Model Nos. 2900, 5200, 6330, 7100 and 6400 on
Schedule 6.2 hereto. In the event that Purchaser desires to use, license or sell
the Software for the Preserved Purpose, Purchaser and Seller shall negotiate a
mutually agreeable commercial agreement in good faith.
6.3 Non Interference with Intellectual Property. Purchaser shall not take
any action adverse to the intellectual property rights of Purchaser in the
Assets, including but not limited to (i) oppose any domestic or foreign patent
or patent application of Purchaser, (ii) interfere with or impede the
prosecution of any pending domestic or foreign patent application of Purchaser,
or otherwise seek to restrict the scope of any pending domestic or foreign
patent application of Purchaser, (iii) infringe any intellectual property right
of Purchaser, including any domestic or foreign patent, copyright, trademark or
trade secret rights of Purchaser.
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ARTICLE VII. INDEMNIFICATION.
7.1 Indemnification by Seller. Seller shall indemnify, defend and hold
harmless Purchaser from and against any and all claims, demands, losses, costs,
expenses, obligations, liabilities, damages, recoveries, and deficiencies,
including reasonable attorney's fees and costs (collectively, "Losses") that
Purchaser may incur or suffer, which arise, result from, or relate to: (i) any
inaccuracy of Seller's representations and warranties contained in this
Agreement or in any agreement, instrument or document entered into pursuant
hereto or in connection with the Closing, (ii) any breach of or failure by
Seller to perform any of its covenants or agreements contained in this Agreement
or the Related Agreements and (iii) any Excluded Liabilities. Seller shall not
have any liability under this Section 7.1 unless Purchaser gives written notice
to Seller asserting a claim for losses, including reasonably detailed facts and
circumstances pertaining thereto (to the extent known), before the expiration of
two (2) years from the Closing.
7.2 Indemnification by Purchaser. Purchaser shall indemnify, defend and
hold harmless Seller from and against any and all Losses that Seller may incur
or suffer, which arise, result from or relate to: (i) any inaccuracy of
Purchaser's representations and warranties contained in this Agreement, (ii) any
breach of or failure by Purchaser to perform any of its covenants or agreements
contained in this Agreement or the Related Agreements. Purchaser shall not have
any liability under this Section 7.2 unless Seller gives written notice to
Purchaser asserting a claim for such losses, including reasonably detailed facts
and circumstances pertaining thereto, before the expiration of two (2) years
from the Closing.
7.3 Defense of Third Party Actions.
(a) Promptly after receipt of notice of any written assertion of a
claim, or the commencement of any action, suit, or proceeding, by a third party
against a party to this Agreement ("Third Party Action"), the party in receipt
of such notice who believes that it is entitled to indemnification under this
Section 7.3 (the "Indemnified Party") shall give notice to the other party
hereto (the "Indemnifying Party") of such action. The failure of the Indemnified
Party to give such notice to the Indemnifying Party will not relieve the
Indemnifying Party of any liability hereunder unless it was prejudiced thereby,
nor will it relieve it of any Liability which it may have other than under this
Section 7.3.
(b) Upon receipt of a notice of a Third Party Action, the
Indemnifying Party shall have the right, at its option and at its own expense,
to participate in and be present at the defense of such Third Party Action, but
not to control the defense, negotiation or settlement thereof, which control
shall remain with the Indemnified Party, unless the Indemnifying Party makes the
election provided in paragraph (c) below.
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(c) By written notice within 20 days after receipt of a notice of a
Third Party Action, an Indemnifying Party may elect to assume control of the
defense, negotiation and settlement thereof, with counsel reasonably
satisfactory to the Indemnified Party; provided, however, that the Indemnifying
Party agrees (a) to promptly indemnify the Indemnified Party for its expenses to
date, and (b) to hold the Indemnified Party harmless from and against any and
all losses caused by or arising out of any settlement of the Third Party Action
approved by the Indemnifying Party or any judgment in connection with that Third
Party Action. The Indemnifying Party shall not in the defense of the Third Party
Action enter into any settlement that does not include as a term thereof the
giving by the third party claimant of an unconditional release of the
Indemnified Party, or consent to entry of any judgment except with the consent
of the Indemnified Party.
(d) Upon assumption of control of the defense of a Third Party
Action under paragraph (c) above, the Indemnifying Party will not be liable to
the Indemnified Party hereunder for any legal or other expenses subsequently
incurred in connection with the defense of the Third Party Action, other than
reasonable expenses of investigation.
(e) If the Indemnifying Party does not elect to control the defense
of a Third Party Action under paragraph (c) above, the Indemnifying Party shall
promptly reimburse the Indemnified Party for expenses incurred by the
Indemnified Party in connection with defense of such Third Party Action, as and
when the same shall be incurred by the Indemnified Party.
(f) Any party who has not assumed control of the defense of any
Third Party Action shall have the duty to cooperate with the party that assumed
such defense.
7.4 Miscellaneous.
(a) Either party hereto shall be entitled to indemnification
hereunder unless the matter giving rise to the applicable liability, payment,
obligation or expense was clearly disclosed in writing to the Indemnified Party
prior to the Closing.
(b) If any Loss is recoverable under more than one provision hereof,
the Indemnified Party shall be entitled to assert a claim for such Loss until
the expiration of the longest period of time within which to assert a claim for
Loss under any of the provisions that are applicable.
ARTICLE VIII. DISPUTE RESOLUTION.
8.1 Direct Discussion. In the event of any dispute, claim, question, or
disagreement arising out of or relating to this Agreement (a "Dispute"), the
Parties involved in such Dispute shall use their best efforts to settle such
Dispute. To this effect, management of the Parties involved shall consult and
negotiate with each other in good faith to attempt to reach a just and equitable
solution satisfactory to both parties.
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8.2 Jurisdiction; Venue. Each of the Parties hereby irrevocably and
unconditionally submits, for itself and its property, to the exclusive
jurisdiction of the any New York State court or Federal court of the United
States of America sitting in New York City, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
Parties hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in any such New
York State court or, to the fullest extent permitted by law, in such Federal
court. Each of the Parties agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Each of the Parties
hereto irrevocably and unconditionally waives any objection that it may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement to which it is a party in any New York
State or Federal court. Each of the parties hereto irrevocably waives the
defense of an inconvenient forum to the maintenance of such action or proceeding
in any such court.
ARTICLE IX. GENERAL PROVISIONS.
9.1 Expenses. Each Party hereto shall bear all of its expenses incurred in
connection with the transactions contemplated by this Agreement, including
without limitation, accounting and legal fees incurred in connection herewith.
Each Party shall pay one-half of the fees and expenses billed by the Escrow
Agent in connection with the transactions contemplated hereby. Purchaser shall
deduct Seller's portion of such fees and expenses from the Purchase Price and
promptly remit such amount to the Escrow Agent.
9.2 Further Assurances. From time to time prior to, on and after the
Closing, each Party hereto will execute all such instruments and take all such
actions as any other Party, being advised by counsel, shall reasonably request,
without payment of further consideration, in connection with carrying out and
effectuating the intent and purpose hereof and all transactions and things
contemplated by this Agreement and the Related Agreements, including without
limitation the execution and delivery of any and all confirmatory and other
instruments in addition to those to be delivered on the Closing, and any and all
actions which may reasonably be necessary or desirable to complete the
transactions contemplated hereby. The Parties shall cooperate fully with each
other in connection with any steps required to be taken as part of their
respective obligations under this Agreement and the Related Agreements.
9.3 Successors and Assigns. Except as otherwise expressly provided herein,
this Agreement shall be binding upon and inure to the benefit of the Parties
hereto, and their respective representatives, successors and assigns.
9.4 Amendments; Waivers. The terms, covenants, representations, warranties
and conditions of this Agreement may be changed, amended modified, waived,
discharged or terminated only by a written instrument executed by the Party
waiving compliance. The failure of any Party at any time or times to require
performance of any provision of this Agreement shall in no manner affect the
right of such Party at a later date to enforce the same. No waiver by any Party
of any condition or the breach of any provision, term, covenant, representation
or warranty contained in this Agreement, whether by conduct or otherwise, in any
one or more instance shall be deemed to be or construed as a further or
continuing waiver of any such condition or of the breach of any other provision,
term, covenant, representation or warranty of this Agreement.
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9.5 Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be in writing (which shall
include notice by facsimile transmission) and shall be deemed to have been duly
made and received when personally served, or when delivered by Federal Express
or a similar overnight courier service, expenses prepaid, or, if sent by telex,
graphic scanning or other facsimile communications equipment, delivered by such
equipment, addressed as set forth below:
(a) If to Purchaser, then to: Cantor G&W (Nevada), L.P., 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxxx X. Xxxxxx, Telephone: (212)
000-0000, Facsimile: (000) 000-0000. In addition, a copy (which shall not
constitute notice) shall be provided to Xxxxxx X. Xxxxx at the address set forth
in the preceding sentence, facsimile: (000) 000-0000.
(b) If to Seller, then to: Gaming & Entertainment Group, Inc., 0000
Xxxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000, Attn: Xxxxxxx X. Xxxxxx, Telephone:
000-000-0000, Facsimile: 000-000-0000.
Any Party may alter the address to which communications are to be sent by giving
notice of such change of address in conformity with the provisions of this
Section 9.5 providing for the giving of notice.
9.6 Captions. The captions of the Articles and Sections of this Agreement
are for convenience only and shall not control or affect the meaning or
construction of any of the provisions of this Agreement.
9.7 Governing Law. This Agreement and all questions relating to its
validity, interpretation, performance and enforcement shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to conflict of laws provisions thereof.
9.8 Entire Agreement. This Agreement and the other documents delivered
hereunder constitute the full and entire understanding and agreement between the
Parties with regard to the subject matter hereof, and supersedes all prior
agreements, understandings, inducements or conditions, express or implied, oral
or written, relating to the subject matter hereof, except as herein contained.
9.9 Execution; Counterparts. This Agreement may be executed in any number
of counterparts, each of that shall be deemed to be an original as against any
Party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signatures of all of the Parties reflected hereon as the signatories. This
Agreement may be executed and delivered by facsimile transmission.
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9.10 Third Party Beneficiaries. This Agreement shall not benefit or create
any right or cause of action in or on behalf of any person other than the
Parties hereto.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed by their authorized signatories as of the date first written above.
PURCHASER:
CANTOR G&W (NEVADA), L.P.,
A Nevada limited partnership
By:/s/ Xxx X. Xxxxxxx
------------------------------------------
Xxx X. Xxxxxxx
President
SELLER:
GAMING & ENTERTAINMENT GROUP, INC.,
A Utah corporation
By:/s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx
Chief Executive Officer
GAMING & ENTERTAINMENT TECHNOLOGY PTY LIMITED
An Australian corporation
By:/s/ Xxxxx X. Xxxxxx
------------------------------------------
Xxxxx X. Xxxxxx
Chief Executive Officer
[Signature page to Asset Purchase Agreement, dated as of February 15, 2006,
between Cantor G&W (Nevada), L.P., Gaming & Entertainment Group, Inc. and
Gaming & Entertainment Technology Pty Limited
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