ASSET PURCHASE AGREEMENT Dated as of July 5, 2005 Between WinWin Gaming, Inc. and Bijou Studios, Inc.
Exhibit
10.1
Dated
as of July 5, 2005
Between
WinWin
Gaming, Inc.
and
Bijou
Studios, Inc.
ASSET
PURCHASE AGREEMENT dated as of July 5, 2005 (this “Agreement”) between WinWin
Gaming, Inc., a Delaware corporation, with an address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (the “Purchaser”), and Bijou Studios, Inc., a
Delaware corporation, with an address at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇▇,
▇▇
▇▇▇▇▇ (the “Seller”).
RECITALS
WHEREAS,
the Purchaser desires to purchase from the Seller and the Seller desires
to sell
to the Purchaser all of Seller’s rights, title and interest in and to the Assets
(as hereinafter defined), all upon the terms and conditions set forth in
this
Agreement.
NOW,
THEREFORE, in consideration of the representations, warranties and covenants
herein contained and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
ARTICLE
I
CERTAIN
DEFINITIONS
1.1
CERTAIN DEFINITIONS.
(a)
The
following terms, when used in this Agreement, shall have the respective meanings
ascribed to them below:
“ACTION”
means any claim, action, suit, inquiry, hearing, investigation or other
proceeding.
“AFFILIATE”
means, with respect to a Person, any other Person that, directly or indirectly,
through one or more intermediaries, Controls, is controlled by or is under
common Control with, such Person. For purposes of this definition, “CONTROL”
(including, with correlative meanings, the terms “Controlled by” and “under
common Control with”) means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of stock, as trustee or executor, by Contract
or
credit arrangement or otherwise.
“AGREEMENT”
has the meaning set forth in the preamble hereto.
“ANCILLARY
AGREEMENTS” means the ▇▇▇▇ of Sale and the IP Assignment.
“ASSETS”
has the meaning set forth in Section 2.1.
“▇▇▇▇
OF
SALE” has the meaning set forth in Section 3.2(b).
“BUSINESS
DAY” means any day other than Saturday, Sunday or any day on which banks in Las
Vegas, Nevada are required or authorized to be closed.
“CLAIM
NOTICE” means written notification pursuant to Section 7.2(a) of a Third-Party
Claim as to which indemnity under Section 7.1 is sought by an Indemnified
Party,
enclosing a copy of all papers served, if any, and specifying the nature
of and
basis for such Third-Party Claim and for the Indemnified Party’s claim against
the Indemnifying Party under Section 7.1, together with the amount or, if
not
then reasonably ascertainable, the estimated amount, determined in good faith,
of the Indemnified Party’s Losses in respect of such Third-Party
Claim.
“CLOSING”
has the meaning set forth in Section 3.1.
“CLOSING
DATE” has the meaning set forth in Section 3.1.
“COMPETITIVE
PRODUCT” means any product that competes directly with the use, potential use,
or expected use of the Assets, or any part thereof.
“CONTRACT”
means any agreement, lease, debenture, note, bond, evidence of Indebtedness,
mortgage, indenture, security agreement, option or other contract or commitment
(whether written or oral).
“DISPUTE
NOTICE” means a written notice provided by any party against which
indemnification is sought under this Agreement to the effect that such party
disputes its indemnification obligation under this Agreement.
“DISPUTE
PERIOD” means the period ending thirty calendar days following receipt by an
Indemnifying Party of either a Claim Notice or an Indemnity Notice.
“GAAP”
means United States generally accepted accounting principles as in effect
from
time to time, consistently applied throughout the specified period and all
prior
comparable periods.
“GOVERNMENTAL
ENTITY” means any government or political subdivision thereof, whether foreign
or domestic, federal, state, provincial, county, local, municipal or regional,
or any other governmental entity, any agency, authority, department, division
or
instrumentality of any such government, political subdivision or other
governmental entity, any court, arbitral tribunal or arbitrator, and any
nongovernmental regulating body, to the extent that the rules, regulations
or
orders of such body have the force of Law.
“INDEBTEDNESS”
means, as to any Person: (i) all obligations, whether or not contingent,
of such
Person for borrowed money (including, without limitation, reimbursement and
all
other obligations with respect to surety bonds, letters of credit and bankers’
acceptances, whether or not matured), (ii) all obligations of such Person
evidenced by notes, bonds, debentures, capitalized leases or similar
instruments, (iii) all obligations of such Person representing the balance
of
deferred purchase price of property or services, (iv) all interest rate and
currency swaps, caps, collars and similar agreements or hedging devices under
which payments are obligated to be made by such Person, whether periodically
or
upon the happening of a contingency, (v) all indebtedness created or arising
under any conditional sale or other title retention Contract with respect
to
property acquired by such Person (even though the rights and remedies of
the
seller or lender under such Contract in the event of default are limited
to
repossession or sale of such property), (vi) all indebtedness secured by
any
Lien on any property or asset owned or held by such Person regardless of
whether
the indebtedness secured thereby shall have been assumed by such Person or
is
non-recourse to the credit of such Person, and (vii) all indebtedness referred
to in clauses (i) through (vi) above of any other Person that is guaranteed,
directly or indirectly, by such Person.
“INDEMNIFIED
PARTY” means any Person claiming indemnification under any provision of Article
VII.
“INDEMNIFYING
PARTY” means any Person against whom a claim for indemnification is being
asserted under any provision of Article VII.
“INDEMNITY
NOTICE” means written notification pursuant to Section 7.2(b) of a claim for
indemnification under Article VII by an Indemnified Party, specifying the
nature
of and basis for such claim, together with the amount or, if not then reasonably
ascertainable, the estimated amount, determined in good faith, of the
Indemnified Party’s Losses in respect of such claim.
“INTELLECTUAL
PROPERTY” means: all (i) discoveries and inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all United States, international, and foreign patents, patent applications
(either filed or in preparation for filing), patent disclosures and statutory
invention registrations, including all reissuances, divisions, continuations,
continuations in part, extensions and reexaminations thereof, all rights
therein
provided by international treaties or conventions, (ii) trademarks, service
marks, trade dress, logos, trade names, corporate names, and other source
identifiers (whether or not registered) including all common law rights,
all
registrations and applications for registration (either filed or in preparation
for filing) thereof, all rights therein provided by international treaties
or
conventions, and all renewals of any of the foregoing, (iii) all copyrightable
works and copyrights (whether or not registered), all registrations and
applications for registration thereof, all rights therein provided by
international treaties or conventions, and all data and documentation relating
thereto, (iv) confidential and proprietary information, trade secrets, know-how
(whether patentable or nonpatentable and whether or not reduced to practice),
processes and techniques, research and development information including
patent
and/or copyright searches conducted by Seller and/or any third party, ideas,
technical data, designs, drawings and specifications, (v) Software, (vi)
coded
values, formats, data and historical or current databases, whether or not
copyrightable, (vii) domain names, Internet websites or identities used or
held
for use by the Seller, (viii) other proprietary rights relating to any of
the
foregoing (including without limitation any and all associated goodwill and
remedies against infringements thereof and rights of protection of an interest
therein under the laws of all jurisdictions), and (ix) copies and tangible
embodiments of any of the foregoing.
“IP
ASSIGNMENT” has the meaning set forth in Section 3.2(c).
“KNOWLEDGE”
means the actual or constructive knowledge after due inquiry of any current
officer of the Seller.
“LAWS”
means all laws, statutes, rules, regulations, ordinances and other
pronouncements having the effect of law of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision or of any Governmental Entity.
“LIABILITY”
means all Indebtedness, obligations and other Liabilities of a Person, whether
absolute, accrued, contingent, fixed or otherwise, and whether due or to
become
due (including for Taxes).
“LIEN”
means any mortgage, pledge, assessment, security interest, lease, lien, adverse
claim, levy, charge or other encumbrance of any kind, whether voluntary or
involuntary (including any conditional sale Contract, title retention Contract
or Contract committing to grant any of the foregoing).
“LOSS”
means any and all damages, fines, fees, penalties, deficiencies, losses and
expenses (including, without limitation, all interest, court costs, fees
and
expenses of attorneys, accountants and other experts or other expenses of
litigation or other proceedings or of any claim, default or
assessment).
“MATERIAL
ADVERSE EFFECT” means any material adverse effect on the condition, operations,
business, prospects or results of sales of the Seller; PROVIDED, HOWEVER,
that
any adverse effect arising out of or resulting from the entering into of
this
Agreement or the consummation of the transactions contemplated hereby, shall
be
excluded in determining whether a Material Adverse Effect has
occurred.
“ORDER”
means any writ, judgment, decree, injunction or similar order of any
Governmental Entity (in each case whether preliminary or
final).
“PERSON”
means any individual, partnership, limited liability company, corporation,
association, joint stock company, trust, estate, joint venture, unincorporated
organization, Governmental Entity or any other entity of any kind.
“PURCHASE
PRICE” has the meaning set forth in Section 2.1.
“PURCHASER”
has the meaning set forth in the preamble hereto.
“PURCHASER
INDEMNIFIED PARTIES” has the meaning set forth in Section 7.1(a).
“REPRESENTATIVES”
means, with respect to any Person, the directors, officers, employees, counsel,
accountants and other authorized representatives of such Person.
“RESOLUTION
PERIOD” means the period ending thirty days following receipt by an Indemnified
Party of a Dispute Notice.
“SELLER”
has the meaning set forth in the preamble hereto.
“SELLER
INDEMNIFIED PARTIES” has the meaning set forth in Section 7.1(b).
“SOFTWARE”
means all computer software, including source code, object code,
machine-readable code, HTML or other markup language, program listings,
comments, user interfaces, menus, buttons and icons, web applications and
all
files, data, manuals, design notes, research and development documents, and
other items and documentation related thereto or associated
therewith.
“SOLVENT”
means, with respect to the Seller, that (a) the Seller is able to pay its
Liabilities, as they mature in the normal course of business, and (b) the
fair
value of the assets of the Seller is greater than the total amount of
Liabilities of the Seller.
“TAX
RETURNS” means all returns and reports (including elections, claims,
declarations, disclosures, schedules, estimates, computations and information
returns) required to be supplied to a tax authority in any jurisdiction relating
to Taxes.
“TAXES”
means all federal, state, local and foreign income, profits, franchise, license,
social security, transfer, registration, estimated, gross receipts,
environmental, customs duty, capital stock, severance, stamp, payroll, sales,
employment, unemployment, disability, use, property, withholding, excise,
production, value added, occupancy and other taxes, duties or assessments
of any
nature whatsoever together with all interest, penalties, fines and additions
to
tax imposed with respect to such amounts and any interest in respect of such
penalties and additions to tax.
“THIRD-PARTY
CLAIM” has the meaning set forth in Section 7.2(a).
“TRANSFER
TAXES” means all sales, use, value added, excise, registration, documentary,
stamps, transfer, real property transfer, recording, gains, stock transfer
and
other similar Taxes and fees.
(b)
For
purposes of this Agreement, except as otherwise expressly provided herein
or
unless the context otherwise requires: (i) words using the singular or plural
number also include the plural or singular number, respectively, and the
use of
any gender herein shall be deemed to include the other genders; (ii) references
herein to “Articles”, “Sections”, “subsections” and other subdivisions without
reference to a document are to the specified Articles, Sections, subsections
and
other subdivisions of this Agreement; (iii) a reference to a subsection without
further reference to a Section is a reference to such subsection as contained
in
the same Section in which the reference appears, and this rule shall also
apply
to other subdivisions within a Section or subsection; (iv) the words “herein”,
“hereof”, “hereunder”, “hereby” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and (v) the words
“include”, “includes” and “including” are deemed to be followed by the phrase
“without limitation”. All accounting terms used herein and not expressly defined
herein shall have the meanings given to them under GAAP.
ARTICLE
II
PURCHASE
AND SALE OF ASSETS
2.1
PURCHASE AND SALE OF ASSETS.
(a)
At
the Closing, as hereinafter defined, Purchaser shall pay Seller for the Assets
the price of four hundred thousand ($400,000.00) (the “PURCHASE PRICE”) payable
as follows: (i) ten thousand ($10,000) upon execution of this Agreement,
(ii)
ninety thousand ($90,000.00) in cash at the Closing; (iii) sixty-five thousand
dollars ($65,000.00) in cash within thirty (30) days of the Closing; (iv)
fifty
thousand dollars ($50,000.00) cash within sixty (60) days of the Closing;
and
(v) the balance of one hundred eighty-five thousand dollars ($185,000.00)
shall
be paid to Seller by the issuance of common stock of Purchaser, with the
public
market value of one hundred eighty-five thousand dollars ($185,000.00), within
ninety (90) days of the Closing. The number of shares of said common stock
shall
be determined in accordance with the market price of the day immediately
preceding the execution date of this Agreement.
(b)
In
consideration of the payment by the Purchaser of the PURCHASE PRICE, the
Seller
hereby agrees to sell, convey, transfer, assign, grant and deliver to the
Purchaser, and the Purchaser hereby agrees to purchase, acquire and accept
from
the Seller, at the Closing, all of the Seller’s right, title and interest in and
to all of the Assets, free and clear of all Liens. The term “ASSETS” means: (a)
the software assets set forth on Schedule 2.1 attached hereto; (b) all
Intellectual Property as set forth on Schedule 2.1 attached hereto; (c) all
rights to causes of action, lawsuits, judgments, claims and demands of any
nature available to or being pursued by the Seller with respect to (a) above,
whether arising by way of counterclaim or otherwise; and (d) a list of any
end-users of the Assets that have licensed such products or received such
products from Seller, which list shall include the product received, the
platform on which it is used and the term of the license.
2.2
ASSUMPTION OF LIABILITIES. For greater certainty, the Purchaser assumes no
Liabilities relating to the Assets or the Seller or the Seller’s business
(including Tax Liabilities).
2.3
ALLOCATION. The sum of the Purchase Price shall be allocated as soon as possible
after the Closing but in no event later than ninety days following the Closing
among the Assets pursuant to the joint agreement of the Seller and the
Purchaser. The parties hereto shall each report federal, state, local and
other
Tax consequences of the purchase and sale contemplated hereby in a manner
consistent with such allocation, and neither party hereto shall take any
position in any Tax Return, or other filing, proceeding or audit or otherwise
inconsistent with such allocation.
ARTICLE
III
THE
CLOSING
3.1
CLOSING. The closing of the transactions contemplated hereby (the “CLOSING”)
shall take place sixty (60) days from the date of this Agreement at the offices
of Purchaser commencing at 10:00 a.m. P.T., or such other date as the parties
hereto may mutually determine in writing (the “CLOSING DATE”).
3.2
DELIVERY OF ITEMS BY THE SELLER. The Seller shall deliver to the Purchaser
at
the Closing the items listed below:
(a)
a
certificate, duly executed by an authorized officer of the Seller, certifying
the satisfaction of the conditions set forth in Sections 6.1(c), (d), (e)
and
(g);
(b)
a
▇▇▇▇ of Sale and General Assignment for the Assets, duly executed by the
Seller,
in the form attached hereto as EXHIBIT A (the “▇▇▇▇ OF SALE”);
(c)
an
intellectual property assignment, duly executed by the Seller, in the form
attached hereto as EXHIBIT B (the “IP ASSIGNMENT”); and
(d)
such
other documents and instruments as the Purchaser may reasonably
request.
3.3
DELIVERY OF ITEMS BY THE PURCHASER. The Purchaser shall deliver to the Seller
at
the Closing the items listed below:
(a)
a
certificate duly executed by the authorized officer of the Purchaser, certifying
the satisfaction of the conditions set forth in Sections 6.2(c) and
(d);
(b)
such
other documents and instruments as the Seller may reasonably
request.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
As
an
inducement to the Purchaser to enter into this Agreement, the Seller represents
and warrants to the Purchaser as follows:
4.1
ORGANIZATION, QUALIFICATION AND CORPORATE POWER. The Seller is a corporation
duly organized, validly existing and in good standing under the Laws of the
State of Delaware and has full corporate power and authority to own its
properties and assets and to carry on its business as it is now being conducted.
The Seller is duly qualified or licensed as a foreign corporation to do
business, and is in good standing, in each jurisdiction where the character
of
the properties or assets owned, leased or operated by it or the nature of
its
activities makes such qualification or licensing necessary, except where
the
failure to be so qualified or licensed would not have a Material Adverse
Effect.
4.2
AUTHORIZATION. The Seller has full power and authority to execute and deliver
this Agreement and the Ancillary Agreements and to perform its obligations
hereunder and thereunder. The execution, delivery and performance by the
Seller
of this Agreement and the Ancillary Agreements and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by
the
Seller’s board of directors and no other corporate action is required on the
part of the Seller in connection with the execution, delivery or performance
of
this Agreement and the Ancillary Agreements or the consummation of the
transactions contemplated hereby and thereby. This Agreement and the Ancillary
Agreements have been duly executed and delivered by the Seller and, assuming
the
due authorization, execution and delivery hereto and thereof by the Purchaser,
constitute the valid and legally binding obligations of the Seller enforceable
in accordance with their respective terms.
4.3
NONCONTRAVENTION.
(a)
Neither the execution, delivery or performance of this Agreement or the
Ancillary Agreements nor the consummation of the transactions contemplated
hereby or thereby will, with or without the giving of notice or the lapse
of
time or both, (i) violate any provision of the certificate of incorporation
or
bylaws of the Seller, (ii) violate any Law or Order or other restriction
of any
Governmental Entity to which the Seller may be subject or (iii) conflict
with,
result in a breach of, constitute a default under, result in the acceleration
of
any right or obligation under, create in any party the right to accelerate,
terminate, modify, cancel, require any notice under or result in the creation
of
a Lien on any of the Assets under, any Contract to which the Seller is a
party
or by which it is bound and to which any of its Assets is subject.
(b)
The
execution and delivery of this Agreement and the Ancillary Agreements by
the
Seller do not, and the performance of this Agreement and the Ancillary
Agreements by the Seller and the consummation of the transactions contemplated
hereby and thereby will not, require any consent, approval, authorization
or
permit of, or filing with or notification to, any Governmental
Entity.
4.4
LITIGATION. There is no pending or, to the Knowledge of the Seller, threatened
Action against or affecting the Assets. Neither the Seller nor the Assets
are
subject to any Order restraining, enjoining or otherwise prohibiting or making
illegal any action by the Seller, this Agreement or any of the transactions
contemplated hereby.
4.5
CONTRACTS. Except as disclosed on SCHEDULE 4.5, there are no executory Contracts
(whether license agreements, development agreements or otherwise), to which
any
of the Assets are bound or subject (other than this Agreement).
4.6
INTELLECTUAL PROPERTY.
(a)
SCHEDULE 4.6 contains a list of all patent and/or copyrights applications
therefor filed by Seller with respect to the Assets and all licenses, if
any,
relating to the foregoing patent and/or copyrights applications therefor.
SCHEDULE 4.6 identifies the owner of each item listed thereon and, in the
case
of registrations and applications, the application or registration number
and
date. The Seller has not taken any action that could result in any of the
registrations and applications for registration for the Assets not being
valid
and in full force and effect.
(b)
Except as disclosed on SCHEDULE 4.6, the Seller is the sole and exclusive
owner
of, and has good and marketable title to, all of the Intellectual Property
in
and to the Assets, including the Intellectual Property set forth on SCHEDULE
4.6, free and clear of all Liens. Except as disclosed on SCHEDULE 4.6, the
Seller has sole and exclusive right to develop, perform, use, create derivative
works of, operate, reproduce, market, sell, license, display, distribute,
publish and transmit the Intellectual Property in and to the Assets. Upon
the
Closing, except as disclosed on SCHEDULE 4.6, the Purchaser will have sole
and
exclusive right, title and interest in and to the Intellectual Property in
and
to the Assets, such that the Purchaser shall thereafter have sole and exclusive
rights to perform, reproduce, create derivative works of, develop, use, operate,
market, sell, license, display, publish, transmit and distribute the Assets,
free of all encumbrances. The Seller has taken reasonable measures to protect
the proprietary nature of the Intellectual Property in and to the Assets
and to
maintain in confidence the trade secrets and confidential information that
it
owns or uses. Except as disclosed on SCHEDULE 4.6, no other Person has any
rights to any of Intellectual Property in and to the Assets and, to the
knowledge of the Seller, no other Person is infringing, violating or
misappropriating any of the Intellectual Property in and to the
Assets.
(c)
With
respect to the Seller’s Intellectual Property contributed to the Assets, such
Intellectual Property does not infringe upon, violate or constitute a
misappropriation of any Intellectual Property or other right of any other
Person. In addition, to Seller’s knowledge, none of the activities or business
presently conducted by the Seller with respect to the Assets infringes or
violates, or constitutes a misappropriation of, any Intellectual Property
or
other right of any other Person. Neither the Seller nor any Affiliate of
the
Seller has received any written complaint, claim or notice alleging any such
infringement, violation or misappropriation. Further, neither the Seller
nor any
Affiliate of the Seller has disclosed to any Person, any source code, or
any
portion or aspect of any source code, which is part of the Assets, including
the
Intellectual Property.
4.7
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENTS. Each employee, officer
and
consultant of the Seller that has had any involvement or participation in
the
creation of any of the Assets has executed a proprietary nondisclosure,
nonsolicitation and assignment of intellectual property agreement or similar
agreement. The Seller is not aware that any of the Seller’s employees, officers
or consultants are in violation of the terms thereof.
4.8
BROKERS’ FEES. No agent, broker, finder, investment banker, financial advisor or
other similar Person will be entitled to any fee, commission or other
compensation in connection with any of the transactions contemplated by this
Agreement on the basis of any act or statement made or alleged to have been
made
by the Seller, any of its Affiliates, or any investment banker, financial
advisor, attorney, accountant or other Person retained by or acting for or
on
behalf of the Seller or any such Affiliate.
4.9
COMPLIANCE WITH LAWS. The Seller is not in violation of, has not violated
and,
to the Knowledge of the Seller, is not under investigation with respect to
any
possible violation of, and has not been threatened to be charged with any
violation of, any Order of Law applicable to the Assets.
4.10
TITLE TO ASSETS. Except as to Intellectual Property (which warranty is contained
in Section 4.6): (i) the Seller has good and marketable title to all of the
Assets free and clear of all Liens; (ii) this Agreement and the instruments
of
transfer to be executed and delivered pursuant hereto will effectively vest
in
the Purchaser good and marketable title to all of the Assets free and clear
of
all Liens; (iii) and no Person other than the Seller has any ownership interest
in any of the Assets.
4.11
SOLVENCY. The Seller is and, after consummation of the transactions contemplated
by this Agreement, will be Solvent.
4.12
DISCLOSURE. The representations and warranties on the part of the Seller
contained in this Agreement, and the statements contained in any of the
Schedules or in any certificates furnished to the Purchaser pursuant to any
provisions of this Agreement, including pursuant to Article VI hereof, do
not
contain any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements herein or therein, in light
of
the circumstances under which they were made, not misleading.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER
As
an
inducement to the Seller to enter into this Agreement, the Purchaser represents
and warrants to the Seller as follows:
5.1
ORGANIZATION. The Purchaser is a corporation duly organized, validly existing
and in good standing under the Laws of the State of Delaware, and has full
corporate power and authority to own its properties and assets and to carry
on
its business as it is now being conducted.
5.2
AUTHORIZATION. The Purchaser has full power and authority to execute and
deliver
this Agreement and the Ancillary Agreements and to perform its obligations
hereunder and thereunder. The execution, delivery and performance by the
Purchaser of this Agreement and the Ancillary Agreements and the consummation
of
the transactions contemplated hereby and thereby have been duly authorized
by
the Purchaser’s board of directors and no other corporate action is required on
the part of the Purchaser in connection with the execution, delivery or
performance of this Agreement and the Ancillary Agreements or the consummation
of the transactions contemplated hereby and thereby. This Agreement and the
Ancillary Agreements have been duly executed and delivered by the Purchaser
and,
assuming the due authorization, execution and delivery hereof and thereof
by the
Seller, constitute the valid and legally binding obligations of the Purchaser
enforceable in accordance with their respective terms.
5.3
NONCONTRAVENTION.
(a)
Neither the execution, delivery or performance of this Agreement or the
Ancillary Agreements, nor the consummation of the transactions contemplated
hereby or thereby will, with or without the giving of notice or the lapse
of
time or both, (i) violate any provision of the certificate of incorporation
or
bylaws of the Purchaser or (ii) violate any Law or Order or other restriction
of
any Governmental Entity to which the Purchaser may be subject.
(b)
The
execution and delivery of this Agreement and the Ancillary Agreements by
the
Purchaser do not, and the performance of this Agreement and the Ancillary
Agreements by the Purchaser and the consummation of the transactions
contemplated hereby and thereby will not, require any consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Entity.
5.4
BROKERS’ FEES. No agent, broker, finder, investment banker, financial advisor or
other similar Person will be entitled to any fee, commission or other
compensation in connection with any of the transactions contemplated by this
Agreement on the basis of any act or statement made or alleged to have been
made
by the Purchaser, any of its Affiliates, or any investment banker, financial
advisor, attorney, accountant or other Person retained by or acting for or
on
behalf of the Purchaser or any such Affiliate.
ARTICLE
VI
CONDITIONS
TO OBLIGATION TO CLOSE
6.1
CONDITIONS TO CLOSING BY THE PURCHASER. The obligation of the Purchaser to
effect the transactions contemplated hereby is subject to the satisfaction
or
waiver by the Purchaser of the following conditions:
(a)
The
representations and warranties of the Seller set forth in this Agreement
shall
be true and correct in all material respects, with respect to representations
and warranties not qualified by materiality, or in all respects, with respect
to
representations and warranties qualified by materiality, as of the date of
this
Agreement and as of the Closing Date as though made on and as of the Closing
Date.
(b)
The
Seller shall have performed in all material respects the covenants required
to
be performed by it under this Agreement at or prior to the Closing
Date.
(c)
The
board of directors of the Seller shall have approved this Agreement and the
Ancillary Agreements and the transactions contemplated hereby and
thereby.
(d)
The
Seller shall have executed and delivered each of the Ancillary
Agreements.
(e)
There
shall be no effective or pending Law or Order that would prohibit the Closing,
and the Seller shall have obtained all necessary approvals of any Governmental
Entities in connection with the transactions contemplated hereby and by the
Ancillary Agreements.
(f)
The
Seller shall have delivered each of the items described in Section
3.2.
(g)
The
Seller shall have delivered to the Purchaser a duly completed and executed
certification pursuant to Section 1.445-2(b)(2) of the Treasury regulations
certifying that the Seller is not a foreign person.
(h)
Purchaser shall have until the end of the thirtieth (30th))
day
following the date of this Agreement to conduct such investigations and studies
of the Assets as Purchaser shall determine to be necessary or appropriate.
Seller agrees that Purchaser and Purchaser’s agents shall have access to the
Assets (including the Intellectual Property) at all reasonable times during
this
due diligence period for the purpose of conducting its feasibility and other
studies and investigations of the Assets. Within three (3) days after the
date
of this Agreement, Seller shall provide to Buyer any and all documents requested
by Purchaser and relating to the Assets including the Intellectual Property.
If
requested by Purchaser, Seller shall cooperate with Purchaser to facilitate
meetings between Buyer and its Representatives and Seller and its
Representatives regarding such investigations and studies of the Assets
including the Intellectual Property. If Purchaser is not satisfied with the
Assets or the feasibility of purchasing the Assets, for any reason whatsoever,
then Purchaser shall have the absolute and unconditional right to terminate
this
Agreement. If Purchaser elects to terminate this Agreement, the Purchaser
shall
deliver written notice to Seller of its intention within seven (7) days after
the expiration of the due diligence period of thirty (30) days from the date
of
this Agreement. Should Purchaser issue such notice, then this Agreement shall
automatically terminate whereupon the parties shall be relieved of any and
all
further obligations hereunder. If Purchaser does not issue such notice, then
Purchaser will have deemed to have elected to go forward with the acquisition
of
the Assets pursuant to this Agreement.
6.2
CONDITIONS TO CLOSING BY THE SELLER. The obligation of the Seller to effect
the
transactions contemplated hereby is subject to the satisfaction or waiver
by the
Seller of the following conditions:
(a)
The
representations and warranties of the Purchaser set forth in this Agreement
shall be true and correct in all material respects, with respect to
representations and warranties not qualified by materiality, and in all
respects, with respect to representations and warranties qualified by
materiality, in each case as of the date of this Agreement and as of the
Closing
Date as though made on and as of the Closing Date.
(b)
The
Purchaser shall have performed in all material respects the covenants required
to be performed by it under this Agreement at or prior to the Closing
Date.
(c)
The
Purchaser shall have executed and delivered each of the Ancillary
Agreements.
(d)
There
shall be no effective or pending Law or Order that would prohibit the Closing,
and the Purchaser shall have obtained all necessary approvals of any
Governmental Entities in connection with the transactions contemplated hereby
and by the Ancillary Agreements.
(e)
The
Purchaser shall have delivered each of the items described in Section
3.3.
ARTICLE
VII
INDEMNIFICATION
7.1
INDEMNIFICATION OBLIGATIONS.
(a)
Seller shall indemnify the Purchaser and its officers, directors, employees,
agents and Affiliates (collectively, the “PURCHASER INDEMNIFIED PARTIES”) in
respect of, and hold each harmless from and against, any and all Losses
suffered, incurred or sustained by any of them or to which any of them becomes
subject, resulting from, arising out of or relating to (i) any misrepresentation
or breach of representation or warranty on the part of the Seller contained
in
this Agreement, (ii) any nonfulfillment of or failure to perform any covenant
or
agreement on the part of the Seller contained in this Agreement, and (iii)
any
Liabilities of the Seller.
(b)
Purchaser shall indemnify the Seller and its officers, directors, employees,
agents and Affiliates (collectively, the “SELLER INDEMNIFIED PARTIES”) in
respect of, and hold each harmless from and against, any and all Losses
suffered, incurred or sustained by it or to which it becomes subject, resulting
from, arising out of or relating to (i) any misrepresentation or breach of
representation or warranty on the part of the Purchaser contained in this
Agreement and (ii) any nonfulfillment of or failure to perform any covenant
or
agreement on the part of the Purchaser contained in this Agreement.
(c)
For
purposes of indemnification under this Article VII only, all qualifications
as
to materiality and/or Material Adverse Effect contained in any representation
or
warranty shall be disregarded.
7.2
METHOD OF ASSERTING CLAIMS. Claims for indemnification by an Indemnified
Party
under Section 7.1 will be asserted and resolved as follows:
(a)
THIRD-PARTY CLAIMS. In the event that any claim or demand in respect of which
an
Indemnified Party might seek indemnification under Section 7.1 in respect
of,
arising out of or involving a claim or demand made by any Person not a party
to
this Agreement against an Indemnified Party (a “THIRD-PARTY CLAIM”), the
Indemnified Party shall deliver a Claim Notice to the Indemnifying Party
within
sixty (60) days after receipt by such Indemnified Party of written notice
of the
Third Party Claim. If the Indemnified Party fails to provide the Claim Notice
within such time period, the Indemnifying Party will not be obligated to
indemnify the Indemnified Party with respect to such Third-Party Claim to
the
extent that the Indemnifying Party’s ability to defend is actually prejudiced by
such failure of the Indemnified Party. The Indemnifying Party will notify
the
Indemnified Party as soon as practicable within the Dispute Period whether
the
Indemnifying Party accepts or disputes its liability to the Indemnified Party
under Section 7.1 and whether the Indemnifying Party desires, at its sole
cost
and expense, to defend the Indemnified Party against such Third-Party
Claim.
(i)
DEFENSE BY INDEMNIFYING PARTY. If the Indemnifying Party notifies the
Indemnified Party within the Dispute Period that the Indemnifying Party desires
to defend the Indemnified Party with respect to the Third-Party Claim pursuant
to this Section 7.2, then the Indemnifying Party will have the right to defend,
with counsel reasonably satisfactory to the Indemnified Party, at the sole
cost
and expense of the Indemnifying Party, such Third-Party Claim by all appropriate
proceedings, which proceedings will be vigorously and diligently prosecuted
or
defended by the Indemnifying Party to a final conclusion or will be settled
at
the discretion of the Indemnifying Party (but only with the consent of the
Indemnified Party in its sole discretion in the case of any settlement that
provides for any relief other than the payment of monetary damages or that
provides for the payment of monetary damages as to which the Indemnified
Party
will not be indemnified in full pursuant to Section 7.1). Subject to the
immediately preceding sentence, the Indemnifying Party will have full control
of
such defense and proceedings, including any compromise or settlement thereof;
PROVIDED, HOWEVER, that the Indemnified Party may, at the cost and expense
of
the Indemnifying Party, at any time prior to the Indemnifying Party’s delivery
of notice to assume the defense of such Third Party Claim, file any motion,
answer or other pleadings or take any other action that the Indemnified Party
reasonably believes to be necessary or appropriate to protect its interests.
The
Indemnifying Party shall not be liable to the Indemnified Party for legal
expenses incurred by the Indemnified Party in connection with the defense
of
such Third Party Claim after the Indemnifying Party’s delivery of notice to
assume the defense. In addition, if requested by the Indemnifying Party,
the
Indemnified Party will, at the sole cost and expense of the Indemnifying
Party,
provide reasonable cooperation to the Indemnifying Party in contesting any
Third-Party Claim that the Indemnifying Party elects to contest.
(ii)
DEFENSE BY INDEMNIFIED PARTY. If the Indemnifying Party fails to notify the
Indemnified Party within the Dispute Period that the Indemnifying Party desires
to assume the defense of the Third-Party Claim, or if the Indemnifying Party
fails to give any notice whatsoever within the Dispute Period, then the
Indemnified Party will have the right to defend, at the sole cost and expense
of
the Indemnifying Party, the Third-Party Claim by all appropriate proceedings,
which proceedings will be prosecuted by the Indemnified Party in good faith
or
will be settled at the discretion of the Indemnified Party. The Indemnified
Party will have full control of such defense and proceedings, including any
compromise or settlement thereof; PROVIDED, HOWEVER, that if requested by
the
Indemnified Party, the Indemnifying Party will, at the sole cost and expense
of
the Indemnifying Party, provide reasonable cooperation to the Indemnified
Party
and its counsel in contesting any Third-Party Claim which the Indemnified
Party
is contesting. Notwithstanding the foregoing provisions of this Section 7.2,
if
the Indemnifying Party has notified the Indemnified Party within the Dispute
Period that the Indemnifying Party disputes its liability hereunder to the
Indemnified Party with respect to such Third-Party Claim and if such dispute
is
resolved in all respects in favor of the Indemnifying Party in the manner
provided in clause (iii) below, the Indemnifying Party will not be required
to
bear the costs and expenses of the Indemnified Party’s defense pursuant to this
Section 7.2 or of the Indemnifying Party’s participation therein at the
Indemnified Party’s request. The Indemnifying Party may participate in, but not
control, any defense or settlement controlled by the Indemnified Party pursuant
to this Section 7.2, and the Indemnifying Party will bear its own costs and
expenses with respect to such participation.
(iii)
ACCEPTANCE BY INDEMNIFYING PARTY. If the Indemnifying Party notifies the
Indemnified Party that it accepts its indemnification liability to the
Indemnified Party with respect to the Third-Party Claim under Section 7.1,
the
Loss identified in the Claim Notice, as finally determined, will be conclusively
deemed a liability of the Indemnifying Party under Section 7.1 and the
Indemnifying Party shall pay the amount of such Loss to the Indemnified Party
on
demand. If the Indemnifying Party timely disputes its liability with respect
to
such Third-Party Claim or fails to notify the Indemnified Party within the
Dispute Period whether the Indemnifying Party disputes its liability to the
Indemnified Party with respect to such Third-Party Claim, the Indemnifying
Party
and the Indemnified Party will proceed in good faith to negotiate a resolution
of such dispute, and if not resolved through negotiations with the Resolution
Period, such dispute shall be resolved by litigation in a court of competent
jurisdiction.
(b)
NON-THIRD PARTY CLAIMS. In the event any Indemnified Party should have a
claim
under Section 7.1 against any Indemnifying Party that does not involve a
Third-Party Claim, the Indemnified Party shall deliver an Indemnity Notice
with
reasonable promptness to the Indemnifying Party. The failure or delay by
any
Indemnified Party to give the Indemnity Notice shall not impair such party’s
rights hereunder except to the extent that the Indemnifying Party is actually
prejudiced by such failure or delay. If the Indemnifying Party notifies the
Indemnified Party that it does not dispute the claim described in such Indemnity
Notice within the Dispute Period, the Loss indemnified in the Indemnity Notice
will be conclusively deemed a Liability of the Indemnified Party under Section
7.1 and the Indemnifying Party shall pay the amount of such Loss to the
Indemnified Party on demand. If the Indemnifying Party has timely disputed
its
liability with respect to such claim or fails to notify the Indemnified Party
within the Dispute Period whether the Indemnifying Party disputes the claim
described in such Indemnity Notice, the Indemnifying Party and the Indemnified
Party will proceed in good faith to negotiate a resolution of such dispute
and,
if not resolved through negotiations within the Resolution Period, such dispute
shall be resolved by litigation in a court of competent
jurisdiction.
ARTICLE
VIII
POST-CLOSING
COVENANTS
8.1
NON-COMPETE.
(a)
The
Seller acknowledges that reasonable limits on its ability to engage in
activities competitive with the Purchaser are warranted to protect the
Purchaser’s substantial investment in the Assets. The Seller further
acknowledges that Purchaser’s operations (to include the use and utilization of
the Assets) involve conducting business with, and/or exploiting business
opportunities in, countries throughout the world, and on worldwide wireless
networks and the worldwide internet web. As a consequence, Seller acknowledges
and agrees that a geographical limitation to this non-compete covenant would
be
ineffectual and harmless to Purchaser, and Seller waives any right to challenge
or contest same. Accordingly, the Seller shall not, and shall cause its
Affiliates not to, directly or indirectly, develop, co-develop, publish,
co-publish, sell, license or distribute any Competitive Product of the Assets
during the period commencing on the Closing Date and ending five (5) years
thereafter. Seller’s ownership of stock of any corporation listed on a national
securities exchange shall not be deemed a violation of this Section 8.2,
provided that Seller and its Affiliates collectively do not own more than
five
percent (5%) of the voting stock of such corporation.
(b)
Should any portion of Section 8.1(a) be declared by a court of competent
jurisdiction to be unreasonable, unenforceable or void for any reason or
reasons, the involved court shall modify Section 8.1(a) so as to be reasonable
or as is otherwise necessary to make that Section enforceable and
valid.
8.2
TRANSFER TAXES. Notwithstanding anything herein to the contrary, Seller shall
be
liable for and shall pay any Transfer Taxes or other similar tax imposed
in
connection with the transfer of the Assets pursuant to this Agreement. The
party
responsible under applicable Law for remitting any such tax shall pay and
remit
such tax on a timely basis and, if such party is the Purchaser, the Purchaser
shall notify the Seller of the amount of such tax, and the Seller promptly
pay
to the Purchaser the amount of such tax.
8.3
FURTHER ACTION. From and after the Closing each of the parties hereto shall
execute and deliver such documents and take such further actions as may
reasonably be required to carry out the provisions of this Agreement and
the
Ancillary Agreements and to give effect to the transactions contemplated
hereby
and thereby, including to give the Purchaser effective ownership and control
of
the Assets.
8.4
CONFIDENTIALITY. From and after the Closing Date, the Seller shall keep
confidential, and shall inform its Affiliates and their respective
Representatives of the confidential nature of, any information relating to
the
Assets, except for any such information that (a) is available to the public
on
the Closing Date, (b) thereafter becomes available to the public other than
as a
result of a disclosure by the Seller or any of its Representatives, or (c
) is
or becomes available to the Seller or any of its Representatives on a
non-confidential basis from a source that to the Seller’s or such
Representative’s knowledge is not prohibited from disclosing such information to
the Seller or such Representative by a legal, contractual or fiduciary
obligation to any other Person. Should the Seller or any such Representative
be
required to disclose any such information in response to an Order or as
otherwise required by Law or administrative process, it shall inform the
Purchaser in writing of such request or obligation as soon as possible after
the
Seller is informed of it and, if possible, before any information is disclosed,
so that a protective order or other appropriate remedy may be obtained by
the
Purchaser. If the Seller or such Representative is obligated to make such
disclosure, it shall only make such disclosure to the extent to which it
is so
obligated, but not further or otherwise.
ARTICLE
IX
MISCELLANEOUS
9.1
SURVIVAL. Notwithstanding any right of the Purchaser (whether or not exercised)
to investigate the affairs of the Seller or any right of any party (whether
or
not exercised) to investigate the accuracy of the representations and warranties
of the other party contained in this Agreement or the waiver of any condition
to
Closing, each of the parties hereto has the right to rely fully upon the
representations, warranties, covenants and agreements of the other contained
in
this Agreement. The representations, warranties, covenants and agreements
of the
parties hereto contained in this Agreement and any certificate or other document
provided hereunder or thereunder will survive the Closing.
9.2
PRESS
RELEASES AND PUBLIC ANNOUNCEMENT. Only Purchaser shall have the right to
issue a
press release or make a public announcement relating to this Agreement or
the
Ancillary Agreements or the transactions contemplated hereby; PROVIDED, HOWEVER,
that this Section 9.2 shall not apply to any disclosure required by any
applicable Law or stock exchange regulation or rule.
9.3
NO
THIRD-PARTY BENEFICIARIES. The terms and provisions of this Agreement are
intended solely for the benefit of the parties hereto and their respective
successors and permitted assigns, and it is not the intention of the parties
to
confer third-party beneficiary rights, and this Agreement does not confer
any
such rights, upon any other Person, except for any Person entitled to indemnity
under Article VII.
9.4
ENTIRE AGREEMENT. This Agreement (including the Exhibits and the Schedules
hereto) constitute the entire agreement between the parties hereto with respect
to the subject matter hereof and thereof and supersede any prior understandings,
agreements or representations by or between the parties hereto, written or
oral,
with respect to such subject matter.
9.5
SUCCESSION AND ASSIGNMENT. This Agreement shall be binding upon and inure
to the
benefit of the parties named herein and their respective successors and
permitted assigns. No party hereto may assign either this Agreement or any
of
its rights, interests or obligations hereunder without the prior written
approval of the other parties hereto, except that the Purchaser may assign
this
Agreement or any of its rights, interests or obligations hereunder to any
Affiliate of the Purchaser.
9.6
DRAFTING. The parties have participated jointly in the negotiation and drafting
of this Agreement and, in the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring
or
disfavoring any party by virtue of the authorship of any of the provisions
of
this Agreement.
9.7
NOTICES. All notices, requests and other communications hereunder must be
in
writing and will be deemed to have been duly given only if delivered personally
against written receipt or by facsimile transmission or mailed (by registered
or
certified mail, postage prepaid, return receipt requested) or delivered by
reputable overnight courier, fee prepaid, to the parties hereto at the following
addresses or facsimile numbers:
IF
TO
SELLER,
TO: ▇▇▇▇
Zain
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
ATTN:
▇▇▇▇ Zain
WITH
A
COPY TO:
___________________________
___________________________
___________________________
IF
TO
PURCHASER, TO: WinWin
Gaming, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
ATTN:
▇▇▇
▇▇▇▇▇▇
WITH
A
COPY TO:
Attorney
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Any
party
hereto may change the address to which notices, requests, demands, claims
and
other communications hereunder are to be delivered by giving the other parties
hereto notice in the manner set forth herein.
9.8
GOVERNING LAW. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Nevada, without giving effect to any choice
of
law or conflict of law provision or rule that would cause the application
of the
Laws of any jurisdiction other than the State of Nevada.
9.9
CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH OF THE PARTIES HERETO
CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN
THE
COUNTY OF ▇▇▇▇▇ IN THE STATE OF NEVADA AND IRREVOCABLY AGREES THAT ALL ACTIONS
OR PROCEEDINGS RELATING TO THIS AGREEMENT, THE ANCILLARY AGREEMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY MAY BE LITIGATED IN SUCH COURTS.
EACH OF THE PARTIES HERETO ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
RESPECTIVE PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
AGREEMENT, THE ANCILLARY AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR
THEREBY. EACH OF THE PARTIES HERETO FURTHER IRREVOCABLY CONSENTS TO THE SERVICE
OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO SUCH PARTY AT THE ADDRESS SPECIFIED IN THIS AGREEMENT,
SUCH
SERVICE TO BECOME EFFECTIVE 15 CALENDAR DAYS AFTER SUCH MAILING. NOTHING
HEREIN
SHALL IN ANY WAY BE DEEMED TO LIMIT THE ABILITY OF EITHER PARTY HERETO TO
SERVE
ANY SUCH LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS IN ANY OTHER MANNER
PERMITTED BY APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER OR TO BRING ACTIONS,
SUITS OR PROCEEDINGS AGAINST THE OTHER PARTY HERETO IN SUCH OTHER JURISDICTIONS,
AND IN SUCH MANNER, AS MAY BE PERMITTED BY ANY APPLICABLE LAW.
9.10
WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY
WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, THE ANCILLARY AGREEMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR
THEREBY AND FOR ANY COUNTERCLAIM RELATING THERETO.
9.11
AMENDMENTS AND WAIVERS. No amendment of any provision of this Agreement shall
be
valid unless such amendment is in writing and signed by each of the parties
hereto. No waiver by any party hereto of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional or not, shall
be
deemed to extend to any prior or subsequent default, misrepresentation or
breach
of warranty or covenant hereunder or affect in any way any rights arising
by
virtue of any prior or subsequent such occurrence. No waiver shall be valid
unless such waiver is in writing and signed by the party against whom such
waiver is sought to be enforced.
9.12
SEVERABILITY. Except as set forth in Section 8.1(b), if any provision of
this
Agreement is held to be illegal, invalid or unenforceable under any present
or
future Law, and if the rights or obligations of any party hereto under this
Agreement will not be materially and adversely affected thereby, (a) such
provision will be fully severable, (b) this Agreement will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (c) the remaining provisions of this Agreement will
remain in full force and effect and will not be affected by the illegal,
invalid
or unenforceable provision or by its severance herefrom and (d) in lieu of
such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms of such illegal, invalid or unenforceable provision as may be
possible.
9.13
EXPENSES. Except as otherwise expressly set forth herein or therein, each
of the
parties hereto will bear its own costs and expenses (including legal fees
and
expenses) incurred in connection with this Agreement, the Ancillary Agreements
and the transactions contemplated hereby or thereby, whether or not the
transactions contemplated hereby or thereby are consummated.
9.14
INCORPORATION OF EXHIBITS AND SCHEDULES. The Exhibits, Annexes and Schedules
identified in this Agreement are incorporated herein by reference and made
a
part hereof. Unless otherwise specified, no information contained in any
particular numbered Schedule shall be deemed to be contained in any other
numbered Schedule unless explicitly included therein (by cross reference
or
otherwise).
9.15
SPECIFIC PERFORMANCE. The parties hereto agree that irreparable damage would
occur in the event that any provision of this Agreement was not performed
in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof in addition to any other remedy
available to them at law or equity.
9.16
HEADINGS. The descriptive headings contained in this Agreement are included
for
convenience of reference only and shall not affect in any way the meaning
or
interpretation of this Agreement.
9.17
COUNTERPARTS. This Agreement may be executed in one or more counterparts,
and by
the different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together
shall
constitute one and the same agreement.
9.18
BULK
SALES LAWS. The parties hereto hereby waive compliance with the bulk sales
Laws
of any jurisdiction in which any of the Assets are located or in which any
operations relating to the Seller’s business are conducted.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the
date first written above.
|
WITNESS:
___________________________
___________________________
|
WINWIN
GAMING, INC.
By: /s/
▇▇▇▇▇▇▇
▇▇▇▇▇▇
Its:
|
|
___________________________
___________________________
|
BIJOU
STUDIOS, INC.
Its:
|