Elixir Group Limited and VendingData Corporation and Jim Crabbe and Mark Newburg Alliance Agreement
Exhibit
10.1
Elixir
Group Limited
and
VendingData
Corporation
and
Xxx
Xxxxxx
and
PARTIES
ELIXIR
GROUP LIMITED
of
00/X.,
Xxx Xxxxxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx
(“Elixir”)
and
VENDINGDATA
CORPORATION
of
0000
Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000 Xxxxxx Xxxxxx of America
(“VDC”)
and
XXX
XXXXXX
of
0000
Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000 Xxxxxx Xxxxxx of America
(“Xxx
Xxxxxx”)
and
XXXX
XXXXXXX
of
0000
Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000 Xxxxxx Xxxxxx of America
(“Xxxx
Xxxxxxx”)
BACKGROUND
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A
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Elixir
agrees that VDC can join the Asian gaming technology alliance established
by Elixir.
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|
B
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Contemporaneously
with the execution of this Agreement, Elixir and VDC will enter or
have
entered into such definitive agreements with a view to giving effect
to
the VDC Equity Issue and the Exclusive Distribution Arrangement and
during
the Evaluation Period the parties will continue to work to complete
the
Engineering and Manufacturing Alliance and the Elixir Equity Acquisition.
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AGREED
TERMS
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1
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Definitions
and interpretation
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1.1
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Definitions
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In
this
Agreement, unless the context requires otherwise:
“Agreement”
means
this alliance agreement, as amended or varied from time to time in accordance
with clause 11.5.
***
Confidential Treatment Requested
1
“Asia
Representative Agreement”
means
the Asia representative agreement entered into between, inter alia, Elixir
and
Shuffle Master dated 11 April 2006.
“Authorised
Representative”
means
in respect of a party, the chief executive officer or other designated senior
executive of that party.
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“Asia”
means all countries in the generally accepted Asian region, including
Cambodia, China, Goa, Guam, India, Japan, Kazakhstan, Korea, Laos,
Macau,
Malaysia, Myanmar, Mongolia, Nepal, Philippines, Saipan, Singapore,
Russia, Sri Lanka, Tinian Islands, Taiwan, Thailand, Vietnam, provided
that each of the forgoing are legal gaming jurisdictions at such
time, any
cruise ship registered in or operates principally out of any of these
jurisdictions (assuming that they are legal at the time) and all
other
gaming jurisdictions in the generally accepted Asian region that
subsequently become legal.
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“Change
of Control”
means with respect to either Elixir or VDC, and shall be deemed to
occur
upon the happening of, any one of the
following:
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(a)
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The
acquisition, directly or indirectly, in a single transaction or a
series
of related transactions by any person or group of related persons
resulting in the beneficial ownership of 50% or more of the combined
voting power of the outstanding voting securities of the party or,
in the
case of Elixir, any parent corporation;
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(b)
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The
consummation of a reorganization, merger or consolidation or sale
of
substantially all of the assets of the party or, in the case of Elixir,
any of its parent corporation (other than any such reorganization,
merger,
consolidation or sale of assets that relates to, for the purposes
of or
pursuant to (i) in the case of Elixir, any initial public offering
of
Elixir or its parent corporation and/or the Elixir Equity Acquisition;
and
(ii) in the case of VDC, the VDC Equity Issue and/or the Engineering
and
Manufacturing Alliance), including, without limitation, a corporation
which as a result of such transaction owns the party or all or
substantially all of the party’s assets either directly or through one or
more subsidiaries.
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“Claim”
means
any claim, notice, demand, action, proceeding, litigation, investigation or
judgment and the related damage, loss, cost, expense or liability incurred
or
suffered by the person concerned, however it arises and whether it is present
or
future, fixed or unascertained, actual or contingent.
“Commencement
Date”
means
the date of this Agreement.
“Elixir
Equity Acquisition”
means
the proposed acquisition by VDC of an equity interest in Elixir together with
the prior or simultaneous transfer of any shares of VDC held by Elixir to Melco
or its nominees.
“Engineering
and Manufacturing Alliance”
means
the proposed agreement to be entered into between Elixir and VDC in relation
to
any or all of the following:
|
(a)
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Elixir
integrating its research and development centre with VDC’s engineering
division in Zhuhai the People’s Republic of China;
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(b)
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the
acquisition by Elixir of a direct equity interest in a special purpose
entity formed by VDC to hold the manufacturing facility of VDC located
in
Zhuhai, the People’s Republic of China; and
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(c)
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the
manufacturing by VDC of Elixir’s product
requirements.
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***
Confidential Treatment Requested
2
“Evaluation
Period”
means
the period commencing on the Commencement Date and ending on the earlier
of:
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(a)
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the
date of termination of this Agreement pursuant to clause 8;
and
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(b)
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30
September 2007 or such later date as may be agreed by the parties
in
writing.
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“Event
of Default”
means
any of the following events:
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(a)
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a
party breaching any material provision of this Agreement or any of
the
agreements referred to in Section 2 (unless such breach is due to
fault on
the part of the other party or its affiliates) fails to remedy the
breach
within 30 days after receiving written notice of breach from the
other
party describing in reasonable detail the nature of the beach, unless
the
breach is incapable of remedy in which case the Event of Default
shall
occur immediately upon delivery of written notice by the non-breaching
party;
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(b)
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an
Insolvency Event occurring in relation to a
party.
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“Exclusive
Distribution Arrangement”
means
a
proposed variation to the existing Sales Representative Agreement dated 5
January 2006 (“Sales Representative Agreement”) between Elixir and VDC to
provide for the exclusive distribution by Elixir of Products and New Products
throughout Asia for a term of up to twenty years.
“Global
Alliance Arrangement”
means
a
proposed arrangement whereby VDC or Elixir intend to pursue business
opportunities with a third party that arises from the acceptance by either
VDC
or Elixir (as the case may be) of a Global Alliance Offer made by the other
party.
“Global
Alliance Offer” has
the
meaning given to that term in clause 7.8.
“Insolvency
Event”
means
the occurrence of any of the following events in relation to any
person:
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(a)
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the
person becomes insolvent, states that it is insolvent or is presumed
to be
insolvent under any applicable law;
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(b)
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the
person is wound up, dissolved or declared
bankrupt;
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(c)
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the
person becomes an insolvent under administration under any applicable
law;
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(d)
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a
liquidator, provisional liquidator, controller, administrator, trustee
for
creditors, trustee in bankruptcy or other similar person is appointed
to,
or takes possession or control of, any or all of the person’s assets or
undertaking;
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(e)
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the
person enters into or becomes subject
to:
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| (i) |
any
assignment for the benefit of one or more of its creditors;
or
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| (ii) |
any
re-organisation, moratorium, deed of company arrangement or other
administration involving one or more of its
creditors;
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(f)
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an
application or order is made (and, in the case of an application,
it is
not stayed, withdrawn or dismissed within 30 days), resolution passed,
proposal put forward, or any other action taken which is preparatory
to or
could result in any of (b),
(c),
(d)
or
(e)
above; or
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(g)
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the
person suspends payment of its debts without any lawful reason, ceases
or
threatens to cease to carry on all or a material part of its business
or
becomes unable to pays its debts when they fall
due.
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***
Confidential Treatment Requested
3
“Melco
PBL Joint Venture”
means
the joint venture established between Melco and Publishing and Broadcasting
Limited for pursuance of the gaming and entertainment business in the pan Asian
region.
“New
Products”
means
any new products developed or sold by VDC that are not of a type of product
that
Elixir distributes at the relevant time, provided that the term New Products
shall not include shuffler, deck checking or verification devices developed
or
sold by VDC.
“Parties”
or
“parties”
unless
otherwise specified herein, mean Elixir and VDC and the term “Party”
or
“party”
shall
refer to any of them (but excluding Xxx Xxxxxx and Xxxx Xxxxxxx).
“Products”
means
only VDC’s chips, and plaques (including RFID enabled chips and plaques) and
chip washers and for purposes of clarification shall not include VDC’s shuffler,
deck checking or verification devices.
“Share
Placement Shares”
means
the shares to be sold to Elixir by VDC pursuant to the Securities Purchase
Agreement and the Registration Rights Agreement referred to in
clause 2(a).
“Shuffle
Master”
means
Shuffle Master Inc of 0000 Xxxxx Xxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx, Xxxxxx Xxxxxx
of America.
“VDC
Equity Issue”
means
the sale and issuance by VDC of the Share Placement Shares and the
Warrants.
“Warrants”
means
the warrants to be sold to Elixir by VDC pursuant to the terms of the Common
Stock Purchase Warrant Agreement referred to in clause 2(a).
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1.2
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Words
and expressions
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In
this
Agreement, unless the context requires otherwise:
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(a)
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the
singular includes the plural and vice
versa;
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(b)
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words
denoting any gender include all
genders;
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(c)
|
where
a word or phrase is defined, its other grammatical forms have a
corresponding meaning;
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(d)
|
a
reference to a party, clause or paragraph is a reference to a party,
clause or paragraph of this
document;
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(e)
|
headings
are for convenience and do not affect
interpretation;
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(f)
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the
background or recitals to this document are adopted as and form part
of
this document;
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(g)
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a
reference to any document or agreement includes a reference to that
document or agreement as amended, novated, supplemented, varied or
replaced from time to time;
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(h)
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a
reference to a time is a reference to local time of the party receiving
notice hereunder;
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(i)
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a
reference to a party includes its executors, administrators, successors,
substitutes (including persons taking by novation) and permitted
assigns;
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(j)
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a
reference to writing includes any method of representing words, figures
or
symbols in a permanent and visible
form;
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***
Confidential Treatment Requested
4
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(k)
|
words
and expressions denoting natural persons include bodies corporate,
partnerships, associations, firms, governments and governmental
authorities and agencies and vice
versa;
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(l)
|
no
rule of construction applies to the disadvantage of a party because
that
party was responsible for the preparation of this document or any
part of
it; and
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(m)
|
the
words “including”, “for example”, “such as” or other similar expressions
(in any form) are not words of
limitation.
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2
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Contemporaneous
Agreements
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Contemporaneously
with the execution of this Agreement, Elixir and VDC will enter
into:
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(a)
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the
Securities Purchase Agreement, the Common Stock Purchase Warrant
Agreement
and the Registration Rights Agreement and any other written documents
considered necessary to give effect to the VDC Equity Issue;
and
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(b)
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an
amendment to the Sales Representative Agreement (the “Amended and Restated
Sales Representative Agreement”), which amendment agreement will give
effect to the Exclusive Distribution
Arrangement.
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3
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Engineering
and Manufacturing Alliance
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3.1
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Negotiation
of Engineering and Manufacturing
Alliance
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During
the Evaluation Period, the parties will negotiate the Engineering and
Manufacturing Alliance.
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3.2
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Provisions
of Engineering
and Manufacturing Alliance
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The
key
elements of the Engineering and Manufacturing Alliance are expected to provide
that, subject to regulatory approval (if required):
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(a)
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Elixir
will integrate its research and development centre (“R&D
Centre”)
with VDC’s engineering division in Zhuhai, the People’s Republic of China.
This integration will not involve the transfer of either party’s
intellectual property rights to the other or provide VDC with any
ownership rights in the R&D Centre or Elixir with any ownership rights
in VDC’s engineering division in
Zhuhai;
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(b)
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once
Elixir is satisfied that VDC has the capacity to produce sufficient
quantities of Elixir’s products at the agreed prices and consistently of
an acceptable quality, then VDC will manufacture all of Elixir’s product
requirements from its China manufacturing facility upon such terms
to be
agreed; and
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(c)
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Elixir
and VDC will negotiate in good faith the terms on which Elixir will
acquire a direct equity interest in a special purpose entity formed
by VDC
to hold the China manufacturing facility on terms mutually acceptable
to
Elixir and VDC, subject to regulatory approval and subject also to
there
being no regulatory impediment in respect to Elixir’s investment in VDC at
that time. It is currently envisaged that the amount invested by
Elixir to
acquire a direct equity interest in a special purpose entity formed
by VDC
may approximate US$1 million, (representing the outstanding capital
infusion commitment given to the local Chinese authority in respect
to the
China manufacturing facility), but that any such investment will
be
subject to finalisation of all relevant agreements and completion
of a
valuation that is satisfactory to both
parties.
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***
Confidential Treatment Requested
5
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4
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Elixir
Equity Acquisition
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4.1
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Development
of the Elixir Equity Acquisition
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During
the Evaluation Period, the Parties will continue to negotiate in good faith
with
a view to developing and entering into the relevant definitive documents to
give
effect to the Elixir Equity Acquisition. In this regard, the Parties acknowledge
that the finalisation of any definitive documents in respect of the Elixir
Equity Acquisition may need to take into account:
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(a)
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regulatory
and other legal considerations;
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(b)
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the
changes in operating markets;
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(c)
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the
changes in financial markets; and
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(d)
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interests
of key stakeholders and alliance
partners.
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4.2
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Board
and Shareholder Approval
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Once
the
parties have sought and obtained their respective board approvals, the parties
will do all things commercially reasonable to enter into and/or implement
binding agreements relating to the agreed Elixir Equity Acquisition. The parties
acknowledge that the consummation of the Elixir Equity Acquisition:
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(a)
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shall
be subject to the approval of VDC shareholders, if required by law;
and
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(b)
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may
be subject to the approval of Melco’s shareholders pursuant to the Hong
Kong stock exchange listing rules.
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5
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License
of Elixir Brand
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(a)
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VDC
intends to rename itself Elixir Gaming Technologies Incorporated,
which
name will be owned by Elixir and in this respect, subject to the
approval
of Elixir’s board, Elixir intends to grant a license to VDC for use of the
trade name “Elixir” as soon as practicable after the Commencement Date, on
a royalty free, non-exclusive and non-transferable basis and otherwise
on
terms acceptable to both parties, which licence will come into effect
upon
such time to be agreed by the parties and will
be terminated forthwith in the event there is any enforcement action
brought against VDC by any regulatory body. and during that time
VDC will
transition to a new name and, at the end of that 90 day period, VDC
will
cease to use the Elixir name.
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(b)
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Subject
to the grant of the license, VDC will not be permitted to use the
“Elixir”
name in Asia as a product brand name to directly promote in Asia
any
product that Elixir does not distribute at that time; provided, however,
this restriction shall not otherwise prohibit VDC from conducting
business
in Asia under the corporate name “Elixir Gaming Technologies
Incorporated”. VDC, in connection with the use of the “Elixir” name, will
comply with all guidelines issued by Elixir in the license and as
Elixir
may issue from time to time regarding the use by VDC of the “Elixir” name.
Any new guideline or change to an existing guideline included in
the
original license that interferes in a material way with any then
current
use by VDC of the “Elixir” name in any material way will require the
consent of VDC, which consent will not be unreasonably
withheld.
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(c)
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Other
than the immediate termination of the license granted by Elixir pursuant
to clause 5(a) in the event of any enforcement action brought against
VDC
by any regulatory authority as mentioned in clause 5(a), If this
Agreement
is terminated or the Amended and Restated Sales Representative Agreement
comes to an end for any reason whatsoever, Elixir may also terminate
the
licence by 90 days’ written notice and during that time VDC will
transition to a new name and, at the end of that 90 day period, VDC
will
cease to use the Elixir name.
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***
Confidential Treatment Requested
6
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(d)
|
During
the term of the license, Elixir will release and indemnify VDC from
and
against all Claims that VDC’s use of the name “Elixir Gaming Technologies
Incorporated” infringes the rights of another where the basis of the Claim
is attributable to an action or actions by Elixir subsequent to the
Commencement Date.
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6
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Shareholder
approvals
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If
any of
the VDC Equity Issue, the Exclusive Distribution Arrangement, the Engineering
and Manufacturing Alliance or the Elixir Equity Acquisition requires approval
by
VDC shareholders, each of Xxx Xxxxxx and Xxxx Xxxxxxx, in their capacities
as
shareholders of VDC, shall vote all of the voting shares under their control
in
favour of the shareholder resolutions that are put to the shareholders of VDC
in
connection with those arrangements.
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7
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Restraints
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7.1
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Elixir
restraint
|
In
consideration for VDC agreeing to enter into this Agreement, during the
Evaluation Period, Elixir will not:
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(a)
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sell
any material portion of the business or material assets of Elixir
outside
of the ordinary course of business without making an Elixir Sale
of
Business Offer to VDC pursuant to clause 7.2;
or
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(b)
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sell
any capital shares of Elixir without making a Share Offer to VDC
pursuant
to clause 7.3.
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7.2
|
Elixir
Sale of Business Offer
|
If
Elixir
intends to sell any material portion of the business or material assets of
Elixir outside of the ordinary course of business, it will provide notice to
VDC
setting out the terms on which it proposes to sell the material portion of
the
business or the material assets and offer VDC the right of first refusal to
purchase the material portion of the business or the material assets
(“Elixir
Sale of Business Offer”).
VDC
may accept or reject the Elixir Sale of Business Offer and must provide notice
of its position within 30 days of receipt of the offer. If VDC does not respond
to an Elixir Sale of Business Offer within 30 days of receipt, it shall be
deemed to have rejected the Elixir Sale of Business Offer and Elixir shall
then
be entitled to sell the relevant material portion of the business or material
assets to any third party upon terms equal to or no less onerous than the Elixir
Sale of Business Offer.
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7.3
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Offer
to float business
|
If
Elixir
intends to sell any capital shares of Elixir, it will provide notice to VDC
setting out the terms on which it proposes to sell the shares and offer VDC
the
right of first refusal to purchase to 20% of the shares in the entity being
floated (“Share
Offer”).
VDC
may accept or reject the Share Offer and must provide notice of its position
within 30 days of receipt of the offer. If VDC does not respond to the Share
Offer within 30 days of receipt, it shall be deemed to have rejected the Share
Offer.
***
Confidential Treatment Requested
7
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7.4
|
VDC
restraint
|
In
consideration for Elixir agreeing to enter into this Agreement, during the
Evaluation Period, VDC will not:
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(a)
|
compete
with Elixir in Asia in the shufflers, deck checking and verification
businesses;
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(b)
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take
any other action as would or could potentially cause a breach of
Elixir’s
legal obligations to Shuffle Master under the Asia Representative
Agreement;
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(c)
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compete
with Elixir in Asia in respect of any other business;
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(d)
|
VDC
will not form a strategic alliance with any competitor of Elixir
with
respect to Asia or that is inconsistent with any Global Alliance
Arrangement;
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(e)
|
VDC
will not dispose of any of its material portion of its business or
material assets outside of the ordinary course of business without
making
a VDC Sale of Business Offer to Elixir pursuant to clause 7.5;
or
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(f)
|
VDC
will not solicit any proposal for the Change of Control of VDC (other
than
the VDC Equity Issue and the Elixir Equity Acquisition);
or
|
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(g)
|
solicit
or persuade any person or entity to do anything which VDC is not
permitted
to do pursuant to clauses (i) through (iv).
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|
7.5
|
VDC
Sale of Business Offer
|
If
VDC
intends to sell a material portion of its business or material assets outside
of
the ordinary course of business, it will provide notice to Elixir setting out
the terms on which it proposes to sell the business or assets and offer Elixir
the right of first refusal to purchase the business or assets (“VDC
Sale of Business Offer”).
Elixir may accept or reject the VDC Sale of Business Offer and must provide
notice of its position within 30 days of receipt of the offer. If Elixir
does not respond to a VDC Sale of Business Offer within 30 days of receipt,
it
shall be deemed to have rejected the VDC Sale of Business Offer and VDC shall
then be entitled to sell the relevant business or assets to any third party
upon
terms equal to or no less onerous than the VDC Sale of Business
Offer.
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7.6
|
***
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7.7
|
Limitation
on Global Alliance
Arrangements
|
During
the Evaluation Period, neither Elixir nor VDC (either, the “Relevant
Party”)
will
enter into an arrangement with a third party by any means pursuant to which
the
Relevant Party agrees to acquire any gaming technology, without first making
a
Global Alliance Offer to the other party pursuant to clause 7.8. For the
avoidance of doubt, in the case of Elixir this restriction only applies if
Elixir is pursuing the acquisition in its own right (and does not extend to
acquisitions pursued by Melco, its other subsidiaries or the Melco PBL Joint
Venture) and does not relate to acquisitions primarily related to the Asian
gaming markets which Elixir has agreed it will pursue with Shuffle Master.
Elixir confirms that it is the current intention of Melco that all acquisitions
of gaming technology by Melco or any member of the Melco corporate group shall
be conducted by or through Elixir.
***
Confidential Treatment Requested
8
|
7.8
|
Global
Alliance Offer
|
If
a
Relevant Party intends to enter into an arrangement with a third party of the
kind referred to in clause 7.7, it will give the other party an opportunity
to participate equally with it in the arrangement by providing notice to the
other party setting out the terms of its proposed arrangement with the third
party (“Global
Alliance Offer”).
The
other party may accept or reject the Global Alliance Offer and must provide
notice of its position to the Relevant Party within 30 days of receipt of the
offer. If the other party does not respond to a Global Alliance Offer within
30
days of receipt, it shall be deemed to have rejected the Global Alliance Offer.
|
7.9
|
Exceptions
|
Notwithstanding
anything to the contrary contained in this clause 7, if giving effect to
any of the provisions of clauses 7.1 to 7.8 above will result in
either:
|
(a)
|
the
directors of a party having breached their fiduciary duties;
or
|
|
(b)
|
the
infringement of any legislation, rule or regulation or breach of
any
contractual obligation that exists as at the date hereof by a party,
|
then
that
relevant party may undertake the activity otherwise prohibited by this
clause 7, but upon determining to do so, it must give prior reasonable
notice of its intention to do so to the other party.
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8
|
Termination
|
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8.1
|
Termination
with immediate effect
|
Elixir
and VDC may terminate this Agreement with immediate effect by giving notice
to
the other parties if the other of them commits an Event of Default or if the
other party undergoes a Change in Control.
|
8.2
|
Effect
of termination
|
Termination
of this Agreement under this clause 8 (or any clauses of this Agreement
giving either Elixir of VDC a right of termination) does not affect any accrued
rights or remedies of any party.
|
9
|
Confidentiality
|
|
(a)
|
The
parties acknowledge and agree that all negotiations and discussions
between them in respect of the Engineering and Manufacturing Alliance,
and
the Elixir Equity Acquisition and the implementation of the Engineering
and Manufacturing Alliance and the Elixir Equity Acquisition are
confidential and are governed by the Confidentiality Deed entered
into
between VDC and Elixir on 21 April 2006, but subject to the ***
.
|
|
(b)
|
Any
public announcement of the terms of this Agreement issued by a party
pursuant to any laws, rules and/or regulations must be in a form
approved
by the other party (provided that such approval shall not be unreasonably
withheld and in particular, regarding the disclosure of any such
information that may be specifically required by applicable laws,
rules or
regulations).
|
|
(c)
|
Unless
required by law, regulation or gaming authority, each party agrees
that it
will not issue any news release, public announcement (other than
those
public announcements referred to in clause 9(b) above), or
advertisement relating to this Agreement, its subject matter or any
transactions as contemplated hereunder, nor will it otherwise publicise
this Agreement, its subject matter or any transactions as contemplated
hereunder, without first obtaining the written approval of both Elixir
and
VDC.
|
***
Confidential Treatment Requested
9
|
10
|
Notices
|
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10.1
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Method
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All
notices, requests, demands, consents, approvals, offers, agreements or other
communications (“Notices”)
given
by a party under or in connection with this Agreement must be:
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(a)
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in
writing;
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(b)
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signed
by the party giving notice or a person duly authorised by that
party;
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(c)
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directed
to the recipient's address (as specified in clause 10.3 or as varied
by any notice duly given pursuant to clause 10.30.3);
and
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(d)
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hand
delivered, sent by prepaid post or transmitted by facsimile to that
address.
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10.2
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Receipt
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A
Notice
given in accordance with this clause is taken as having been given and
received:
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(a)
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if
hand delivered at or before 4.30 pm local time on a business day, on
delivery, otherwise at 9.30 am local time on the next business
day;
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(b)
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if
sent by prepaid post:
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(i)
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within
the country in which the recipient is located, on the second business
day
after the date of posting;
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(ii)
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to
or from a place outside the country from which the party giving notice
is
located, on the seventh business day after the date of posting;
or
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(c)
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if
transmitted by facsimile at or before 4.30 pm local time on a
business day, at the time recorded on the transmission report indicating
successful transmission of the entire notice, otherwise at 9.30 am
local time on the next business
day.
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10.3
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Address
of parties
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Unless
varied by Notice in accordance with this clause 9(c),
the
parties' addresses and other details are:
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Party:
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Elixir
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Attention:
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Xxxxxx
Xxxx
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Copy:
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Melco
International Development Limited
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Attention:
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Xxxxxx
Xxxxx
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Address:
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Penthouse,
00/X, Xxx Xxxxxxxx, 00 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxx
Xxxx
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Facsimile:
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(000)
0000 0000
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Party:
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VDC
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Attention:
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Xxxx
X. Xxxxxxx
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Address:
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0000
Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, Xxxxxx Xxxxxx of
America
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Facsimile:
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(000)
000 0000
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***
Confidential Treatment Requested
10
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Party:
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Xxx
Xxxxxx
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Address:
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0000
Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, Xxxxxx Xxxxxx of
America
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Facsimile:
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(000)
000 0000
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||
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Party:
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Xxxx
Xxxxxxx
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Address:
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0000
Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, Xxxxxx Xxxxxx of
America
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Facsimile:
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(000)
000 0000
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11
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General
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11.1
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Entire
agreement
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This
Agreement constitutes the entire agreement between the parties in relation
to
its subject matter. Unless otherwise expressly excluded hereunder, all prior
discussions, undertakings, agreements, representations, warranties and
indemnities in relation to that subject matter are replaced by this Agreement
and have no further effect. For the avoidance of doubt, this provision shall
not
affect he validity or enforceability of any other agreements entered or to
be
entered into by the parties on the same date hereof, including but not limited
to those agreements as referred to in clause 2(a).
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11.2
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Paramountcy
of document
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If
this
Agreement conflicts with any other document, agreement or arrangement, this
Agreement prevails to the extent of the inconsistency.
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11.3
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No
merger
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The
provisions of this document will not merge on completion of any transaction
contemplated in this document and, to the extent any provision has not been
fulfilled, will remain in force.
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11.4
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Attorneys
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Each
person who executes this document on behalf of a party under a power of attorney
warrants that he or she has no notice of the revocation of that power or of
any
fact or circumstance that might affect his or her authority to execute this
document under that power.
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11.5
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Amendment
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This
document may not be amended or varied unless the amendment or variation is
in
writing signed by both Elixir, and VDC and, in the event the amendment or
variation affects their obligations hereunder, Xxx Xxxxxx and Xxxx
Xxxxxxx.
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11.6
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Assignment
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No
party,
including Xxx Xxxxxx and Xxxx Xxxxxxx for the purpose of this clause, may
assign, transfer or otherwise deal with this document or any right or obligation
under this document without the prior written consent of both Elixir and
VDC.
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11.7
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Successors
and Assigns
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The
obligations and liabilities imposed and the rights and benefits conferred on
the
parties under this document will be binding upon and enure in favour of the
respective parties, their respective successors in title, legal personal
representatives and permitted assigns.
***
Confidential Treatment Requested
11
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11.8
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Severability
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Part
or
all of any provision of this document that is illegal or unenforceable will
be
severed from this document and will not affect the continued operation of the
remaining provisions of this document.
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11.9
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Waiver
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Waiver
of
any power or right under this document:
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(a)
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must
be in writing signed by the party entitled to the benefit of that
power or
right; and
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(b)
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is
effective only to the extent set out in that written
waiver.
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11.10
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Rights,
remedies additional
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Any
rights and remedies that a person may have under this document are in addition
to and do not replace or limit any other rights or remedies provided to that
person by law.
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11.11
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Costs
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Each
party must bear its own legal, accounting and other costs for the preparation
and execution of this document.
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11.12
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Counterparts
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This
Agreement may be executed in any number of counterparts and all counterparts
taken together constitute one document.
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11.13
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Governing
law and jurisdiction
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All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by and construed and enforced in accordance
with the laws of Hong Kong, without regard to the principles of conflicts of
law
thereof. Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, employees or agents) shall be
commenced exclusively in the courts sitting in Hong Kong.
***
Confidential Treatment Requested
12
EXECUTED
as a
AGREEMENT
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EXECUTED
by
ELIXIR
GROUP LIMITED
by:
|
)
)
|
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/s/
Xxxxx Van Tak
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||
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Signature
of director
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||
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Xxxxx
Van Tak
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||
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Name
of director
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EXECUTED
by
VENDINGDATA
CORPORATION
by:
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)
)
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/s/
Xxxx Xxxxxxx
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||
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Signature
of Officer
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||
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Xxxx
X. Xxxxxxx, Chief Executive Officer
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||
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Name
of director
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SIGNED
by
XXX
XXXXXX
in
the presence
of
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)
)
|
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/s/
Xxxxx Xxxx
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/s/
Xxx Xxxxxx
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Signature
of witness
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Xxx
Xxxxxx
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Xxxxx
Xxxx
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||
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Name
of witness (print)
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SIGNED
by
XXXX
XXXXXXX
in
the
presence
of
|
)
)
|
|
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/s/
Xxxxx Xxxx
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/s/
Xxxx Xxxxxxx
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Signature
of witness
|
Xxxx
Xxxxxxx
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Xxxx
Xxxx
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||
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Name
of witness (print)
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***
Confidential Treatment Requested
