1
EXHIBIT 10.18
PRODUCT DEVELOPMENT
AND REVENUE SHARING AGREEMENT
This Agreement is made as of the 18th day of November, 1996, between
IGT, a Nevada corporation with offices located at 0000 Xxxxxxxxx Xxxxx, Xxxx,
Xxxxxx ("IGT"), and Innovative Gaming, Inc., a Nevada corporation with offices
located at 0000 Xxxxx Xxxxxx, Reno, Nevada ("IGI"), under the following terms
and conditions.
INTRODUCTION
IGT is a gaming machine manufacturer, whose products include a slot
machine referred to as an S+ Slant Top slot machines ("Slant Top"). IGI is a
gaming machine manufacturer, whose products include a bonus top component
("Bonus") which secures to the top of slot machines for bonus play. IGI seeks to
combine IGT's Slant Top with its Bonus (hereinafier the "Machine") for casino
placement.
IGT shall make the necessary custom software engineering changes to the
Slant Top to enable communications between the Slant Top and the Bonus. Upon the
completion of the two major components being combined into a Machine, IGT shall
submit the Machine to the Nevada Gaming Control Board and Gaming Laboratories
International, Inc. for approval as a modification.
NOW, THEREFORE, for good and valuable consideration, as is provided
more fully herein, the parties agree as follows:
1. ENGINEERING
IGT shall develop custom engineering modifications for IGI. IGI will
own these custom engineering modifications and will pay IGT within 30 days of
invoicing. IGT will have the right to utilize this custom engineering in
applications that aren't substantially similar to this application.
2. MACHINE PLACEMENT
IGT shall supply IGT Slant Top machine(s) with the above custom
engineering modifications to IGI which shall be placed by IGI in strategic
casinos for the purpose of product test for consumer acceptance upon such terms
as IGI may agree with the casino locations. In the event that the parties
mutually agree that the market test was successful, IGT shall supply IGI new or
used IGT Slant Top machines in an amount to be mutually agreed upon between the
parties for installation at various casino locations pursuant to participation
agreements between IGI and each casino location and on a revenue participation
basis between IGI and IGT. IGT will provide custom engineering modifications to
the Slant Top, which modifications will allow IGI to install its proprietary
Bonus video component onto the Machines.
3. PARTICIPATION
The parties will participate jointly in the Net Revenue generated by
the Machines as follows:
a. Commencing upon installation of each Machine and continuing
thereafier until IGT has recovered its list price less 40% of the
Slant Top, IGT will receive fifty percent (50%) of the
2
Net Revenue as received by IGI on account of such Machine, and
IGI shall receive fifty percent (50%) of the Net Revenue on
account of such Machine.
b. Upon receipt of the IGT list price less 40% for each Slant Top by IGT,
ownership of that Slant Top shall pass to IGI and, thereafier for the term of
this Agreement, IGT will receive ten percent (10%) of the Net Revenue and IGI
shall receive ninety percent (90%) of the Net Revenue.
c. IGI may place the bonus component on existing IGT manufactured games
within a casino if (1) IGT is unable to timely supply new or used IGT Slant Top
machines to IGI (timely is defined as within a six week period of IGI placing
the order) or (2) the market demands the bonus component only and both IGT and
IGI agree that IGI will retrofit existing IGT manufactured games already
existing in a casino. In the event the bonus component is added to an existing
IGT manufactured casino game, IGT will receive a royalty of 5% of the net
revenue for as long as IGI collects net revenue.
"Net Revenue" shall be defined as the actual revenue received
by IGI from the casino locations on account of each Machine, less any gaming
taxes and license fees, or other personal taxes, fees and other charges,
applicable to the Machine or its operation, if any, which are paid by IGI rather
than by the casino location pursuant to the participation agreement. Payments
under this provision shall be due and payable on a monthly basis following IGI's
receipt of Net Revenue from each casino location. IGI shall provide all
accounting services and will include with the monthly payment an accounting
summary of the machines' performance.
4. SERVICING OF THE MACHINE
IGT and IGI shall be responsible for service and costs of
repair of the components of the machines supplied by the respective parties. IGT
will not be responsible for servicing the Slant Top on which the bonus
components are placed under paragraph 3(c) above.
5. LICENSING
a. Licensing and the machine approval - Each party shall obtain any and
all licensing necessary to effectuate the terms of this Agreement, and shall
bear their own costs associated with licensing proceedings, governmental
investigation and approval as required under all applicable laws, regulations,
ordinances, and statutes.
b. Machine approval - IGT will submit the machine for approval to the Nevada
Control Board and Gaming Laboratories International by December 31, 1996.
6. RETURNS
IGI agrees to make best efforts to either replace returned
machines in a new casino location or alternatively to modify or refurbish
machines for placement in new casino locations.
7. WARRANTY
IGT warrants that for a period of ninety (90) days following
installation at the casino location, equipment purchased hereunder will be free
from defects and in good working order. IGI's sole and exclusive remedy in the
event of defect is expressly limited to the restoration of the equipment to
3
good working condition by adjustment, repair, or replacement of defective parts,
at IGT's election. Video monitors (covered under separate manufacturer
warranty), machines, equipment, and other products not manufactured by IGT, are
excluded from this warranty. Except as specifically provided in this Agreement,
there are no other warranties, express and implied, including but not limited
to, warranties of merchantability of fitness for a particular purpose. No
affirmation of fact, including but not limited to statements regarding
suitability for use, performance, percentage hold, or par value of the equipment
shall be deemed to be as warranty or guaranty of IGT for any purpose. In no
event shall IGT or any of its affiliates, subsidiaries, representatives, or
agents be liable for direct, indirect, special or consequential damages,
including loss of profits, arising out of any breach of this Agreement. The
liability of IGT and the manufacturer of the note acceptor with which IGT
machines are equipped, whether in contract, in tort, under warranty, in
negligence or otherwise, shall not exceed an amount of the fair market value of
the note acceptor and under no circumstances shall IGT or the manufacturer of
the note acceptor be liable for special, indirect, or consequential damages.
Neither IGT nor the manufacturer of the note acceptor shall be liable in any
respect for the acceptance of counterfeits and/or fraudulent materials. Any
unauthorized modification, alteration, or revision of all or any portion of the
IGT equipment which is the subject of this Agreement shall cause the warranty
described in this paragraph to be null and void. IGT, its affiliates,
subsidiaries, representatives, and agents make no other warranty, express or
implied.
8. OWNERSHIP
Until payment in full of the IGT list price less 40% for such
Slant Top has been made to IGT, each Slant Top shall remain the sole property of
IGT and shall not become by agreement, act of law or otherwise, security for any
obligation or property of IGI. In the event that IGI ceases doing business for
any reason, fails to maintain all required gaming licenses, or in the event of
filing of voluntary or involuntary petition of bankruptcy or any other default
by IGI, IGT may, in addition to any other remedy at law of equity, enter the
premises where any of the Machines are located and retake possession of the
Slant Top if ownership of such Machines has not been transferred to IGI.
9. TERM AND TERMINATION
a. Term - This Agreement shall be effective for a period of five years and shall
automatically renew for additional one year periods unless terminated upon 30
days written notice by either party prior to the anniversary date.
b. Termination - Either party may terminate this Agreement upon a
material breach of this Agreement which the breaching party does not cure (i)
within fifteen (15) days after delivery of written notice of such breach if the
breach involves the payment of money or (ii) within thirty (30) days after
notice of such breach involves any act or failure other than the payment of
money, or longer if action has commenced to cure a non-monetary breach within
the 30-day period and such party continues to diligently and continuously
prosecute the cure to a favorable conclusion.
c. Unusable Inventory - In the event machines are returned and cannot
be replaced in accordance with paragraph 5 above and IGT has not recovered its
list price less 40%, IGI may either (a) return the slant top machine to IGT or
(b) purchase the machine from IGT for the balance of IGT's list price less 40%
not recovered. If IGI purchases the machine from IGT, IGI will not subsequently
use this machine in conjunction with the IGI bonus component without
compensating IGT as specified herein on a participatory basis.
4
10. INSURANCE
Casino operators, pursuant to and required by IGI participation
agreements, shall maintain adequate "all risk" insurance on the Machines.
11. AGREEMENTS
All agreements for the placement of machines at casino locations shall
be approved as to form by IGT and IGI.
12. MISCELLANEOUS
a. Governmental Regulatory Approval - The parties agree that the performance by
each party of the terms and provisions of this Agreement is contingent upon
obtaining all necessary approvals from any and all governmental regulatory
agencies in any jurisdiction where they are licensed. Each agrees to fully
cooperate with the other in providing any and all information and documents that
may be required by any appropriate regulatory agency during the approval
process. This will be a continuing obligation of each party during the term of
the agreement after it has been initially approved by the regulatory agencies.
In the event that any regulatory agency determines this the agreement cannot be
approved initially for any reason, then the parties agree that it shall be
considered null and void ab initio. If as a result of later circumstances a
regulatory agency determines that the agreement cannot continue then the parties
agree that it shall terminate as of the date of that determination. Neither
party shall be liable to the other for costs, expenses, or damages of any kind
that result from the failure to perform this agreement if such failure results
from a denied approval from regulatory agency or from a later determination by
such an agency that the agreement must be terminated.
b. Restriction on Assignment or Transfer - Neither party may assign or otherwise
transfer ownership or control of its interest in the operation that is the
subject of this agreement without the express written consent of the other
party. This consent shall also be made conditioned on obtaining the necessary
approvals from any and all governmental regulatory agencies in any jurisdiction
where either party may be licensed.
c. Material Change in Ownership - Both parties agree to provide the other party
with written notice of any material change to its corporate structure, including
but not limited to the substitution or appointment of any individual having
significant ownership interest or controlling interest in the corporation within
thirty (30) days.
d. Successors and Assigns - All of the terms and provisions of this Agreement
shall be binding upon, shall inure the benefit of, and shall be enforceable by
the respective permitted successors and assigns of the parties.
e. No Waivers; Amendments - No failure or delay by any party in exercising any
right, power or privileges hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights or remedies herein provided shall be cumulative and not exclusive for any
rights or remedies provided by law. This Agreement may not be amended, modified
or supplemented other than by a written instrument signed by each of the parties
hereto. Any provision of this Agreement may be waived if, but only if, such
waiver is in writing and is signed by the party against whom the enforcement of
such waiver
5
is sought.
f. Notices - All notices, demands, requests, consents or approvals required or
permitted to be given hereunder or which are given with respect to this
agreement shall be in writing and shall be mailed, registered, return receipt
requested, postage prepaid (or by a substantially similar method), or delivered
by a reputable international overnight courier service with charges prepaid,
with a copy (which shall not constitute notice) transmitted by hand delivery,
telegram, telex or facsimile, addressed as set forth below, or such other
address as such party shall have specified most recently by written notice.
Notice shall be deemed given or delivered on the third business day following
the date mailed or on the next business day following delivery of such notice to
a reputable international overnight courier service.
TO IGT:
Xxxxxx X. Xxxxxxx, Executive Vice President
IGT
0000 Xxxx Xxxx
Xxxx, Xxxxxx 00000
With copy to:
Xxxxx XxXxx, Vice President and General Counsel
IGT
0000 Xxxx Xxxx
Xxxx, Xxxxxx 00000
TO IGI:
Xxxxx Xxxxxxxxxx, Chief Financial Officer
Innovative Gaming, Inc.
0000 Xxxxx Xxxxxx
Xxxx, Xxxxxx 00000
With copy to:
Xxxxx Xxxxxx, Vice President/Director of Compliance
Innovative Gaming, Inc.
0000 Xxxxx Xxxxxx
Xxxx, Xxxxxx 00000
g. Entire Agreement - This Agreement constitutes the entire agreement and
understanding among the parties with respect to the subject matter hereof and
thereof and supersedes any and all prior agreements and understandings, whether
written or oral, relating to the subject matter hereof and thereof.
h. Governing Law and Jurisdiction - The Agreement and the rights of the parties
shall be construed in accordance with the laws of the State of Nevada. The
parties, as well as any of their employees or representative, irrevocably agree
to the exclusive jurisdiction of the Courts of the State of Nevada (or such
judicial district of a court of the United States as shall include same).
6
i. Severability - Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
this Agreement in any other jurisdictions, it being intended that all rights and
obligations of the parties hereunder shall be enforceable to the fullest extent
permitted by law.
j. Counterparts - This Agreement may be signed in counterparts, each of which
shall constitute an original and which together shall constitute one and the
same agreement.
k. Required Approvals - If approval of this Agreement or any of the transactions
contemplated hereby shall be required by any governmental or supra-governmental
agency or instrumentality (including any applicable gaming authority) or is
considered to be necessary or advisable to all the parties hereto, all parties
shall use their respective reasonable best efforts to obtain such approval. If
any required approval is not obtained or it becomes clear that such approval
will not be granted, any party shall immediately give the other party notice.
l. Section Headings - The section headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
m. Interpretation - All defined terms herein include the plural as well as the
singular. All references in this Agreement to designated "Sections" or
"Paragraphs" and other subdivisions are to the designated Sections and
Paragraphs and other subdivisions of this Agreement. All references of this
Agreement to any party shall include all permitted transferees of such party.
This Agreement shall not be construed for or against either party by reason of
the authorship or alleged authorship of any provisions hereof or by reason of
the status of the respective parties. This Agreement shall be construed
reasonably to carry out its intent without presumption against or in favor of
either party.
n. Public Disclosure - Unless otherwise required by law, any public disclosure
of the subject matter of this Agreement shall be approved by the parties hereto
prior to release, provided that such approval shall not be unreasonably withheld
or delayed.
o. Confidentiality - IGT and IGI agree that any proprietary information of the
other party will be safeguarded and maintained in confidence and shall not be
reproduced or otherwise used by the non-disclosing party, or its employees or
agents for any purpose other than the purpose of this Agreement, nor to the
detriment of, or in any manner in competition with, the other party or its
products, nor provided or disclosed to any third person or business entity of
any kind without the prior written consent of the disclosing party. Each party
agrees to limit the disclosure of any proprietary information to those in its
organization only on a need-to-know basis for the purpose of this Agreement.
Each party shall at anytime, at the request of the other party, certify the
names of the individuals who were permitted access to any of such other party's
proprietary information.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed, as of the day and year first above written.
IGT INNOVATIVE GAMING, INC.
7
By: _____________________________ By:____________________________
Xxxxxxx Xxxx Xxxxx Xxxxxxxxxx
VP Finance Chief Financial Officer
Date: 11/18/96 Date: 11/18/96
