EXHIBIT 10.2
AGREEMENT
THIS AMENDED AGREEMENT ("Agreement") is entered into this 15th day of
August, 2001 by and between CODERE LLC., a Delaware Corporation ("LICENSEE") and
XXXXXXXX.XXX CORP., a Delaware corporation ("VIRTGAME"). This AMENDED AGREEMENT
will supersede the AGREEMENT signed between VIRTGAME and LCIN LLC. dated the 3rd
of January 2001.
RECITALS
A. VIRTGAME has developed sports betting, lottery, and casino gaming
software to conduct sports wagering over the Internet called "Virtgame
Software"; and
B. LICENSEE desires to market and use the Virtgame Software and to
develop and operate various Government regulated interactive Sports, Lottery,
and Casino operations in Spain and Latin-America.
AGREEMENT
It is agreed as follows:
I. TRANSFER
CODERE LLC. authorizes it's officers and its representatives with LCIN
LLC. to sign this Agreement on the behalf of CODERE and will have the right at
any time to assign this Agreement to GRUPO XXXXXX of Spain or any of its Newco
partners or subsidiaries.
II. GRANT OF LICENSE RIGHTS
Subject to the terms and conditions of this Agreement, VIRTGAME hereby
grants LICENSEE an exclusive (as provided below), non-transferable license to
market and use the Virtgame sports, lottery, and casino software in Spain and
Latin America for wagering services over the Internet. VIRTGAME shall create web
sites at a URL, as specified by LICENSEE, which will offer visitors the
opportunity to place xxxxxx as specified by LICENSEE and developed by V1RTGAME.
CODERE, LLC shall be the exclusive licensee in the territory of Argentina and in
any territory in Latin America or Spain where LICENSEE secures an exclusive
Government Internet gaming license.
III. TYPES OF GAMES AND TIME OF DEVELOPMENT
Virtgame understands Licensee needs to have functional online wagering
sites as specified by the Government gaming authorities. Licensee will instruct
Virtgame on type of games, content, and wagering propositions to be featured in
each site. The pricing terms as set
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out below in III.A includes all development instructions and payments received
through July 31st, 2001 and includes all specifications submitted by LICENSEE by
July 31st, 2001, to Virtgame for the ARGENTINA SPORTS BETTING AND LOTTERY SITES.
Any changes requested after this date will be charged at $110 to $175 per hour,
depending on the engineer's experience and the size of the work order. Billing
with respect to all work orders shall be payable 50% upon submission of the
order and 50% upon completion of the work.
IV. PAYMENTS BY LICENSEE
A. LICENSING. In consideration of the license rights granted in Article
I above, LICENSEE shall pay VIRTGAME per schedule set forth below:
Software Development Fees $180,000 $104,100 paid through June 2001 under terms of
original agreement and reaming balance of $75,900
payable as follows: (33% ($25,300) to be paid upon
the signing of this agreement, 33% thirty days from
the signing, and the remaining 33% when any of the
sites go live to the wagering public.)
Virtgame Monthly $1.50 Payable every month on the 15th of the following
Maintenance Fee month calculated as $1.50 per active account per
month; Active Account is an account that is either
has "Active" status or has a balance at the month
end or has had wagering activity in the prior
quarter.
A minimum Monthly Maintenance Fee of $7,500
(i.e., 5,000 accounts) shall begin to incur ninety
days after any of the sites go live to the wagering
public, with such payment to be due and payable on
the 15th of every month.
Installation and Training $16,500 Estimated 150 hours @ $110 per hour; billed bi-
Estimate weekly; payable 15 days from invoice date
eBorder Control Monthly $2,500 Payable every month on the 15th of the following
Maintenance Fee month (for each 25,000 accounts)
Traveling Expenses Estimate $9,000 Estimate of Reimbursement of Travel expense to
Argentina with remainder to be upon 30 days after
submission of all expenses.
All amounts payable hereunder by LICENSEE shall be payable in United States
funds without deductions for taxes, assessments, fees, or charges of any kind.
Checks shall be made payable to Xxxxxxxx.xxx Corp. and shall be forwarded to
0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000.
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B. SET-UP-FEE. As additional consideration for setting up access to the
VIRTGAME eBorder Control Database, LICENSEE shall pay VIRTGAME a
one-time set-up purchase of license fee of Ten Thousand Dollars
($10,000) (was paid upon the execution of original Agreement.)
IV. TERM AND TERMINATION
A. This Agreement shall become effective upon approval
and execution by LICENSEE and VIRTGAME in San Diego,
California. The Maintenance fee is an integral part
of this agreement; VIRTGAME reserves the right to
terminate the license agreement with a thirty day
notification if payments are not made according to
the payment schedule.
B. LICENSEE will pay VIRTGAME the Maintenance fee by the
15th of the following month together with an accurate
report setting forth the number of "Active Accounts".
VIRTGAME reserves the right to audit this information
from the System independently.
C. LICENSEE may not attempt to create or derive any of
the source code or other technology or data within
the Software by disassembly, reverse engineering or
any other method, or otherwise reduce the Software to
a human-perceivable form.
D. LICENSEE shall only execute Virtgame Internet
wagering software and services on specifically
licensed computers. VIRTGAME will generate licenses
for specific computers at the time of installation.
The removal or addition of licensed computers will
only be performed by Virtgame. LICENSEE shall not
copy the software except for backup purposes, and to
make one copy of the Software in machine-readable
form for backup purposes only.
E. PERFORMANCE GUARANTEE, Virtgame hereby guarantees the
proper functionality and performance of the Virtgame
software services and eBorder software and the proper
technical installation and operation of the
Licensee's Virtgame Betting and eBorder Control Data
Base at all times during the terms of this agreement.
V. MISCELLANEOUS TERMS
A. RELATIONSHIP OF THE PARTIES. The parties shall be
independent contractors hereunder and neither party
shall have the power or authority to bind the other
party with respect to any third party. Except as
specifically provided herein, each party shall bear
its own costs and expenses.
B. EFFECT OF AGREEMENT. This Agreement embodies the
entire understanding between the parties with respect
to the subject matter hereof and supersedes any and
all prior understandings and agreements, oral or
written, relating thereto. Any amendment hereof must
be in writing and signed by both parties.
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C. FORCE MAJEURE. Each party's performance hereunder is
subject to interruption and delay due to causes
beyond its reasonable control such as acts of God,
acts of any government, war or other hostility, the
elements, fire, explosion, power failure, equipment
failure, industrial or labor dispute, inability to
obtain necessary supplies and the like. In the event
of such interruptions or delays, the period of
performance shall be extended for a period of time
equal to the interruption or delay; provided,
however, that, if any such interruption or delay
continues for more than 90 days, the party whose
performance is not affected may terminate this
Agreement immediately upon giving written notice of
termination to the other xxxxx.
D. LIMITATION OF LIABILITY. EXCEPT AS SPECIFICALLY
PROVIDED HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY HEREUNDER FOR ANY PROFITS LOST BY THE
OTHER PARTY OR FOR ANY CONSEQUENTIAL, EXEMPLARY,
INCIDENTAL, INDIRECT OR SPECIAL DAMAGES SUFFERED BY
THE OTHER PARTY, EVEN IF THE PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES.
E. LIMITATION OF CLAIMS. No claim, regardless of form,
which in any way arises out of this Agreement or the
parties' performance of this Agreement may be made,
nor action based upon such a claim brought, by either
party more than one year after the basis for the
claim becomes known to the party desiring to assert
it.
F. ASSIGNMENT. Neither this Agreement nor any part or
portion hereof shall be assigned, sublicensed or
otherwise transferred by either party without the
other party's prior written consent, which consent
shall not be unreasonably withheld or delayed.
G. SEVERABILITY. Should any provision of this Agreement
be held to be void, invalid, unenforceable or illegal
by a court, the validity and enforceability of the
other provisions shall not be affected thereby.
H. NON-WAIVER. Failure of either party to enforce any
provision of this Agreement shall not constitute or
be construed as a waiver of such provision nor of the
right to enforce such provision.
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L. GOVERNING LAW. This Agreement shall be governed by
and construed under the laws of the State of
California. LICENSEE is a gaming licensed entity in
Spain and Latin America and this agreement is subject
to the continuing approval of the regulators in each
jurisdiction.
J. DISPUTES. The parties shall attempt to resolve all
disputes arising out of this Agreement in a spirit of
cooperation without formal proceedings. Any dispute
which cannot be so resolved (other then the
collection of money due on unpaid invoices) shall be
subject to arbitration upon written demand of either
party. Arbitration shall take place in San Diego,
California, or at another location if the parties so
agree. The arbitration shall take place before an
arbitration panel chosen as follows: The parties
shall each choose an arbitrator, and the two
arbitrators shall choose a third arbitrator and
determine the third arbitrator's compensation. Each
party shall have one veto over the choice of the
third arbitrator. The three arbitrators shall
schedule an informal proceeding, hear the arguments,
and decide the matter by secret majority vote. Unless
the arbitrators decide otherwise, each party shall
pay the costs of its own arbitrator, and shall pay
half of the other costs of the arbitration
proceeding. Each party shall have the right to have
the proceedings transcribed. The arbitrators shall
not have the authority to award punitive damages or
any other form of relief not contemplated in the
contract. The majority of arbitrators shall render a
written opinion setting forth the basis on which they
arrived at the decision regarding each issue
submitted to arbitration; the dissenting arbitrator,
if any, shall not issue a dissenting opinion.
Regarding each issue submitted to arbitration, the
decision shall be final and binding only to the
extent it is accompanied by a written explanation of
the basis upon which it was arrived at. Judgment upon
the award if any, rendered by the arbitrators may be
entered in any court having jurisdiction thereof.
Should any legal action permissible under this
Agreement be instituted to enforce the terms and
conditions of this Agreement, in particular the right
to collect money due on unpaid invoices, the
prevailing party shall be entitled to recover
reasonable attorney's fees and expenses incurred at
both the trial and appellate levels.
K. HEADINGS AND CAPTIONS. The headings and captions
contained in this Agreement are inserted for
convenience only and shall not constitute a part
hereof.
L. NOTICES. All notices must be in writing and delivered
either in person or by certified mail or registered
mail, postage prepaid, return receipt requested, to
the person(s) and address specified below. Such
notice will be effective upon receipt.
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VIRTGAME: Xxxxxxxx.xxx Corp.
0000 Xxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx,
Interim President and CEO
LICENSEE: CODERE LLC.
000 Xxxxxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Attn. Xxxxxxxx Ors, Xxxxxx
Xxxxxxx or Nour-Xxxx Xxxxxx
Managing Directors
M. CONFIDENTIALITY. Without written approval of
LICENSEE, VIRTGAME shall not issue any press releases
related to this Agreement, and shall keep strictly
confidential any information regarding LICENSEE
operations, personnel, or customers.
IN WITNESS WHEREOF, the parties have executed this Agreement themselves or by
their authorized representatives
LICENSEE
CODERE LLC.
By: /S/
---------------------------------------
Managing Director and Authorized
Officer of LCIN, LLC
XXXXXXXX.XXX CORP.
a Delaware corporation
By: /S/
---------------------------------------
Xxxxx X. Xxxxxx
President and Chief Executive Officer
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