LICENSE AND APPLICATION SUPPORT AGREEMENT
Exhibit
10.12
***Text
Omitted and Filed Separately
with
the Securities and Exchange Commission.
Confidential
Treatment Requested
Under
17 C.F.R. Sections 200.80(b)(4)
and
240.24b-2.
This
License and Application Support Agreement (the “LASA”) is
made and entered into as of this September 30, 2008 (the “Effective
Date”), by and
between Las Vegas Gaming, Inc., (LVGI), a
Nevada corporation, with a primary business address of ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, and IGT (IGT), a
Nevada corporation with a primary business address of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇, ▇▇ ▇▇▇▇▇ (each a “Party” and
collectively the “Parties”).
WITNESSETH
WHEREAS, IGT owns rights to
various proprietary application programming interfaces (APIs) and protocols,
trademarks, and copyrights related to Gambling (defined below) and Electronic
Gaming Machines (defined below);
WHEREAS, LVGI desires to
license selected ones of IGT’s trademarks and copyrights related to Electronic
Gaming Machines and selected ones of IGT’s proprietary APIs and protocols for
the purpose of designing, developing, and
implementing software applications for delivery through PlayerVision
Devices (defined below) and IGT sb Systems; and
WHEREAS, LVGI desires support
from IGT with regard to the selected ones of IGT’s proprietary APIs and
protocols in the design, development and implementation of such software
applications.
NOW, THEREFORE, in
consideration of the premises and the mutual promises and covenants contained
herein, the Parties agree as follows:
ARTICLE
1
Definitions
The
following terms with initial capital letters shall have the following
meanings:
“Application
Support Services” means technical support and assistance for the purpose
of assisting LVGI establish compatibility between software applications
developed by LVGI for delivery on IGT sb Systems (defined below).
“Competitor”
– means any manufacturer, supplier, or distributor of Gambling Products with
which IGT reasonably considers itself to compete for business.
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“Earned Revenue”
means revenues earned by LVGI, less the
actual cost of jackpot insurance (such as for the top award of Nevada Numbers),
if applicable.
“Electronic Gaming
Machine” or “EGM” means
the entire electronic or electro-mechanical device including the peripheral
components housed in its enclosure that is primarily designed and used for
Gambling, and that has all of the following characteristics: (a) is used by the
player to input the wager amount and otherwise initiate game play; (b) displays
the amount wagered, the outcome of the wager, and the credit amount available to
the player; (c) displays the outcome of the Gambling event to the player within
five minutes of initiating the wager; and (d) is provided to the player by the
EGM operator. The definition of an EGM is limited to the device in
close proximity to the player and does not include supporting software and
servers remote from the device. For the avoidance of doubt, and by
way of example, personal computers, televisions, personal digital assistants
(PDAs), and cellular and other mobile telephones are not primarily designed for
Gambling and are not EGMs for the purposes of this defined term.
“End User”
means the licensed operator (e.g. the casino operator) of an Electronic Gaming
Machine.
“Gambling”
means playing or exposing for play any activity or event involving a wager or a
placing at risk a sum of money or other representative of value, whether or not
redeemable for cash, on an occurrence the outcome of which is uncertain,
including events that include some element of skill (e.g., sports, card games,
and racing). The award corresponding to the outcome of such event or
activity can be cash or any other prize.
“IGT sb
System” or “ISBS”
means IGT’s server-based network systems, which utilize the following IGT user
interfaces: sbNexGen™, Service Window™, and other interfaces to IGT systems as
may be necessary, subject to final approval by IGT. For the sake of
clarity, this excludes the non-sb NexGen, Advantage Systems, and TITO
systems.
“IGT
Systems” means all IGT sb Systems, Advantage® systems, including, but not
limited to, TITO systems, and any other computer system and/or operational
network licensed, sold, or Placed by IGT or its distributors and related to or
associated with Gambling.
“Intellectual
Property” means all intellectual property rights including all past,
present and future rights in patents, industrial property rights, copyrights,
trademarks, and trade secrets.
“Licensed APIs and
Protocols” means (1) Slot Accounting System (SAS™) protocol, including
Ticket In, Ticket Out protocols (TITO); (2) NetPlex protocol; (3)
Casino Terminal Network (CTN) Kiosk protocol; and (4) subject to the written
approval of IGT, Media Manager protocols and Media Manager APIs.
“LVGI Developed
Applications” means software applications that are all of the following:
1) developed by LVGI; 2) utilize the Licensed APIs and Protocols under this
Agreement or the IGT Licensed IP pursuant to the Retrofit License Agreement; and
3) are deployed on the casino floor through an IGT sb System or PlayerVision
Device (defined below).
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“Place,”
“Placed” or
“Placement”
shall mean the sale, lease, or any other supplying of Products (defined below)
including on a participation basis or any
other revenue generating basis.
“PlayerVision
Device(s)” or “PVD(s)”
means the hardware, software, firmware, connections, enclosures, and housings
that are all of the following: i) made and placed by LVGI; ii) installed within
an EGM; iii) only capable of providing PlayerVision® functionality to an EGM;
and iv) that is substantially similar in functionality to the hardware, being
provided by PlayerVision® as of July 17, 2008.
“Product(s)”
means any product or service.
ARTICLE
2
License
2.1 License
Grant. IGT hereby grants LVGI a limited, non-exclusive,
non-transferable, non-assignable (except as
provided in Section 13.9), non-sub-licensable, world-wide license to use the
Licensed APIs and Protocols in association with the IGT Systems for the limited
purpose of facilitating design,
development and implementation of LVGI
Developed Applications but only to the extent that any of the individual APIs
and protocols of the Licensed APIs and Protocols are applicable and necessary to
the LVGI Developed Application and provided that such LVGI Developed
Applications are designed and developed for delivery only through PlayerVision®
Devices or IGT sb Systems. The “implementation” aspect of this
license grant includes the right for LVGI to provide End Users with “use rights”
(i.e. the right to use LVGI Developed Applications) in connection with the
rights granted hereunder. For the avoidance of doubt, this license
does not include any rights to IGT Licensed API’s or Protocols for use through
any third party server based media manager delivery system that is designed for
the management or delivery of media content to the main game
screen. For the avoidance of doubt, the rights provided under this
Agreement do not include any license or covenant not to ▇▇▇ with respect to any
IGT patents or any patents to which IGT may have rights .
2.2 Exclusions and
Restrictions. The license to the Licensed APIs and Protocols
does not include the right to sub-license the Licensed APIs and Protocols, except as permitted to End Users pursuant to Section
2.1. However, LVGI may install LVGI Developed Applications onto any
non-IGT EGM which is already licensed to operate with respect to the Licensed
APIs and Protocols within an IGT sb System and/or use the Licensed APIs and
Protocols either through a license between the EGM manufacturer and IGT or the
operator of the EGM and IGT. LVGI agrees to verify in advance with
IGT that proper licensing of any required APIs or protocols of the Licensed APIs
and Protocols is in place for any installation of LVGI Developed Applications on
non-IGT EGMs.
ARTICLE
3
Consideration/Royalty
3.1 Royalty. In
consideration for the license and Application Support Services provided for in
this LASA, LVGI shall pay a royalty to IGT equal to […***…] of the Earned
Revenues for any LVGI Developed Application
that is delivered through or connected to any IGT Systems.
***Confidential
Treatment Requested
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3.2 Royalty
Payments. LVGI shall furnish to IGT, within 45 days of the end
of each calendar quarter (even if there were no applicable Earned Revenues in
such quarter), a detailed royalty statement showing the Earned Revenues
allocable to the LVGI Developed Applications for the immediately preceding
quarter, separated into Earned Revenue for each country in which sales, or
leases, or profit participations occur; and, where the revenues are earned in a
currency other than U.S. dollars, showing the amount to be expressed in U.S.
dollars to be computed by applying the average exchange rate between the dollar
and that currency by using, to compute the average, the exchange rate quoted in
the U.S. edition of the Wall Street Journal on the last business day of each
month of that calendar quarter. LVGI may, on prior notice to IGT,
employ another method to handle currency conversion that is consistent or more
compatible with its own internal accounting systems provided that such method is
not to the detriment of IGT. The royalty payment shall accompany the
royalty statement. Royalties on U.S. Earned Revenues shall be made
without any tax withholding.
3.3 Failure to
Pay. Any amounts not paid when due will accrue interest at the
rate of 1.5% per month. For the avoidance of doubt, any failure to pay is an
event of default and is subject to the notice, cure, and termination provision
explained at the end of Section 11.5.
ARTICLE
4
Records
and Audits
4.1 Records. LVGI
shall maintain at its principal office for the term of this LASA and for 7 years
thereafter accurate books and records in sufficient detail to enable IGT to
verify the basis for and the accuracy of the royalty statements required to be
submitted to IGT pursuant to Section 3.2 and LVGI’s compliance with each and
every term and condition of this LASA.
4.2 Audit and
Inspection Rights. IGT shall have the right, exercisable not
more than once in any calendar year during the period outlined in Section 4.1,
to audit, through its own financial employees or through independent accountants
(together the “Auditor”), the books and records (both electronic and hard copy)
contemplated at Section 4.1. IGT shall provide LVGI with no less than
2 weeks written notice of its intent to audit LVGI’s books and records as
provided under this LASA and LVGI shall be ready for such audit – meaning that
LVGI shall have all records required hereunder ready for inspection upon the
arrival of the Auditor and LVGI shall also promptly provide additional
documentation as may be required. Such notice shall indicate the
period to be audited, the identity of the auditor and the scope of the
audit. LVGI shall immediately pay any shortfall together with
interest as provided in the next sentence. Should an audit reveal a
discrepancy of royalty payment in relation to royalty actually earned greater
than 5% during any given year, LVGI shall pay any shortfall together with
interest on any outstanding balance at the lesser of 1.5% monthly or the maximum
amount permitted by law, and shall reimburse IGT for the reasonable cost of the
audit. If audits of LVGI reveal a shortfall in royalty payment of
greater than 5% in any fiscal year, and the findings support that the
withholding of such royalty payments was done intentionally or in bad faith, IGT
shall have the right to terminate this LASA. In all events, IGT’s
right to terminate shall be subject to the provisions of Article
11.
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ARTICLE
5
Support
5.1 Support
Services. IGT will provide a total of […***…] hours of
Application Support Services to assist LVGI in utilizing the Licensed APIs and
Protocols to establish compatibility with the LVGI Developed Applications that
are deployed on IGT sb Systems. IGT will have no obligation to modify
any of its products, services, any of the Licensed APIs and Protocols, or any
other IGT System to assist LVGI in attaining such compatibility. No
license to any Intellectual Property that is owned or controlled by IGT is
granted or implied by virtue of IGT’s provision of any support services under
this Agreement.
5.2 Excess Support
Services. The costs of the initial […***…] hours of
Application Support Services are included in the contemplated royalty payments
made by LVGI. Any Application Support Services provided in excess of
these […***…] hours will be provided to LVGI by IGT at IGT’s then-published
engineering rates less […***…].
5.3 Bonus Support
Services. Each calendar year that the royalty payments made by
LVGI to IGT under Section 3.1 exceed a total of […***…], IGT will credit LVGI
with a bonus of […***…] hours of Application Support Services (Bonus
Support Services) for use in the following calendar year. Any Bonus
Support Service hours that have not been used by the end of the calendar year
during which the Bonus Support Service hours are available will lapse and will
not be carried over in any form to the next calendar year.
5.4 Support Material
and Equipment. To the extent that such non-confidential material and
equipment exists and are available for IGT to provide, IGT will provide the
following material and equipment to LVGI in order for LVGI to create LVGI
Developed Applications for deployment on IGT sb Systems:
[…***…].
[…***…].
[…***…].
IGT will
grant LVGI access to IGT’s interoperability lab in Reno, Nevada, at IGT’s
then-published standard rates and as can be accommodated in the ordinary course
of business by the interoperability lab.
5.5 Material- and
Equipment-Related Services. (a) The Parties will work together
to build a productive development environment for LVGI, which may potentially
include a system simulator and a virtual private network (VPN). (b)
IGT will also provide access necessary to make LVGI Developed Applications
demonstrable at trade shows. (c) Any support services provided by IGT
to LVGI in relation to subsections 5.4 and 5.5 will be subtracted from the
Application Support Service hours allotted with regard to subsections 5.1, 5.2,
and 5.3.
***Confidential
Treatment Requested
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5.6 Application
Support Service Limitations. It is acknowledged that the
support services described in 5.1, 5.2, and 5.3 are specifically for helping
LVGI to create Products that are compatible with Licensed APIs and Protocols and
delivered through IGT sb Systems. IGT shall not be required to
provide support services for any LVGI Developed Applications that are designed
to replace functionality embodied in Products being engineered or deployed by
IGT at the time of the request for such support services. To the
extent that IGT has a reasonable basis to believe that certain LVGI Developed
Applications infringe on IGT Intellectual Property and LVGI and IGT are unable
to come to terms for licensing such, then IGT support obligations with respect
to such applications shall be terminated.
ARTICLE
6
Distribution
6.1 Distribution
Opportunity. At IGT’s election, LVGI will grant to IGT
distribution rights to the LVGI Developed Applications at a distribution fee
rate of […***…] of the Earned Revenue for such LVGI Developed
Applications, based upon the pricing of
such LVGI Developed Application as set by LVGI. IGT will, in good faith, conduct a trial
using such products and evaluate the product using its own business judgment.
Should IGT elect to accept distribution rights, the terms and conditions of such
a possible distributor’s agreement will be negotiated by the Parties as
necessary, with respect to IGT’s distribution efforts the agreement will be that
IGT shall use commercially reasonable efforts.
6.2 Maintaining
Minimum Requirements for Exclusive Rights. If IGT elects and
negotiates to take exclusive distribution rights, IGT will be required to meet
minimum placement requirements in order to maintain such exclusive
rights. These minimum placement requirements will be negotiated and
memorialized in each specific agreement for such exclusive rights. If
IGT fails to meet these stated minimum placement requirements, IGT will have the
right to advance any shortfalls, else IGT’s distribution rights will revert to
non-exclusive distribution rights.
6.3 Nevada
Numbers. LVGI will, in good faith, offer IGT the opportunity
to finance the NevadaNumbers game. This financing opportunity will
allow IGT to gain approximately […***…] per ticket in revenue on every
NevadaNumbers ticket sold.
6.4 Additional. LVGI
will, in good faith, offer IGT the opportunity to bankroll their The Million Dollar Ticket® games. These banking opportunities
will allow IGT to earn a […***…] ▇▇▇▇-up on the true odds for each ticket
sold.
ARTICLE
7
LVGI
Obligations
7.1 Software
Development. LVGI will undertake commercially reasonable efforts to
design, develop, and build LVGI Developed Applications for delivery on IGT sb
Systems.
***Confidential
Treatment Requested
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7.2 Compatibility
Commitment. LVGI will undertake
commercially reasonable efforts to make any LVGI Developed Applications
available to the IGT sb Systems and any EGMs compatible with the IGT sb Systems
first before such LVGI Developed Applications are available to non-IGT sb
Systems or non-IGT-compatible EGMs.
7.3 For
purposes of this Section 7, the standard of “commercially reasonable efforts” is
only intended to refer to the level of efforts necessary to create the interface
with the IGT sb Systems, or to the EGMs compatible with the IGT sb Systems, as
applicable – such that if it is commercially reasonable to create said
interface, then LVGI will continue with the further obligations of Sections 7.1
and 7.2.
ARTICLE
8
Representations
and Warranties
8.1 General
Representations and Warranties. Each Party represents and
warrants to the other as follows: (a) it is a valid and existing corporation and
in good standing under the laws of the state of its incorporation; (b) it has
the power and authority required to carry on its activities as they are now
conducted; (c) it has the has full legal right and corporate power, without the
consent of any other person to execute, deliver and to perform its obligations
under this LASA; (d) all corporate and other actions required to be taken by it
to authorize the execution, delivery and performance of this LASA and all
transactions contemplated hereby have been duly and properly taken; (e) no
consent, approval, authorization or filing of any certificate, notice
application, report or other document with any governmental authority is
required on the part of such Party in connection with the valid execution and
delivery of this LASA or the performance by such Party of any of its obligations
hereunder; (f) the execution, delivery and performance of this LASA do not
violate or conflict with any law applicable to it, any provision of its charter
or bylaws, any order or judgment of any court or other agency of government
applicable to it or any of its assets, or any contractual restriction binding on
or affecting it or any of its assets; and (g) the execution, delivery and
performance of this LASA has been duly and validly authorized by each Party, and
upon execution and delivery, this LASA constitutes the valid and binding
agreement of each Party enforceable against it in accordance with its
terms.
8.2 No Third Party
Assistance. LVGI represents and warrants that it will not
assist any third party to design, develop, or implement
any software applications that utilize the Licensed APIs and Protocols
under this Agreement or the IGT Licensed IP pursuant to the Retrofit License
Agreement that are deployed on a casino floor through an IGT sb System or
PlayerVision Device. For sake of
clarity, this provision shall not preclude LVGI from utilizing subcontractors to
assist LVGI in designing,
developing or implementing any LVGI Developed Applications in
accordance with LVGI’s exercise of the rights granted it under this
LASA. This provision also does not prohibit an End User from using
its own technical personnel to assist LVGI in designing, developing or
implementing any LVGI Developed Applications in accordance with LVGI’s exercise
of the rights granted it under this LASA.
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ARTICLE
9
Confidentiality
9.1 Confidentiality
Obligation. Each Party will, and will cause each of its
Representatives to (a) hold all information relating to the business of the
other Party disclosed to it by reason of this LASA confidential; (b) not use any
such information except as necessary to perform its obligations and exercise its
rights under this LASA; and (c) not disclose any of such information to any
third party unless required by law or otherwise legally compelled to disclose
such information; provided, however, that to the extent that either Party may
become so legally compelled, such Party may disclose such information only if it
will first have used reasonable efforts to obtain, and, if practicable, will
have afforded the other Party the opportunity to obtain, an appropriate
protective order or other satisfactory assurance of confidential treatment for
the information required to be so disclosed.
9.2 Exceptions to
Confidentiality. The Party who received such confidential
information will not be required to keep confidential any information that (a)
was, at the time of disclosure to it, in the public domain; (b) after disclosure
to it, is published or otherwise becomes part of the public domain through no
fault of the receiving Party; (c) was received after disclosure to it from a
third Party who had a lawful right to disclose such information or materials to
it; (d) was required by law to be disclosed to any regulatory body having
jurisdiction over the receiving Party or any of its respective affiliates,
customers; (e) that disclosure is necessary by reason of applicable legal,
accounting or regulatory requirements beyond the reasonable control of the
receiving Party; or (f) is subsequently developed by the receiving Party
independently of the information received from the disclosing Party, as
evidenced by written documentation.
9.3 Certain
Disclosures. In the case of any disclosure pursuant to Section
9.2(d) or (e), to the extent practical, the receiving Party will notify the
disclosing Party in advance of the required disclosure and will use commercially
reasonable efforts to assist the disclosing Party in obtaining a protective
order, if available, covering such disclosure. If such a protective
order is obtained, such information and materials will continue to be deemed to
be confidential information. In no event shall the information
disclosed pursuant to Section 9.2(d) or (e) of this LASA exceed that which is
required by such legal, accounting or regulatory requirement, as
applicable.
9.4 Terms of
Agreement. LVGI agrees that this LASA and its provisions will
remain confidential, protected as confidential information as per the above
provisions of this Article 9, and will only be distributed to those persons
within LVGI that have a need to know, subject to any disclosure required by law
or regulation to the Securities and Exchange Commission (“SEC”), Department of
Justice or any court or tribunal of competent
jurisdiction. Notwithstanding the foregoing, LVGI will have the right
to disclose the terms of this LASA to its attorneys, accountants, actual and
potential sources of financing, and potential acquirers, under appropriate
non-disclosure agreements or duties.
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ARTICLE
10
Indemnification
10.1 Indemnification
Obligations. Each Party (the “Indemnifying Party”) will
indemnify, defend and hold the other Party and its officers, directors,
employees and agents (the “Indemnified Party”) harmless from any and all
damages, costs and expenses arising from any third party claims, threats,
proceedings or suits (“Third Party Claims”) to the extent such Third Party
Claims arise from or relate to the Indemnifying Party’s breach of any
representation, warranty or covenant hereunder.
10.2 Indemnification
Procedures. Upon receiving notice of any Third Party Claim covered by
Section 10.1, the Indemnified Party will notify the Indemnifying Party promptly;
provided, however, that the right of indemnification hereunder will not be
adversely affected by a failure to give such notice, unless and only to the
extent that the Indemnifying Party is materially prejudiced
thereby. The Indemnifying Party may assume control of the defense of
any such claim, if (a) the Indemnifying Party acknowledges its obligation to
indemnify the Indemnified Party for any losses resulting from such claim, and
(b) the claim does not seek to impose any liability on the Indemnified Party
other than money damages; provided, however, that the Indemnified Party may, at
its own cost and expense, participate through its attorneys or otherwise, in
such investigation, trial and defense of such claim and any appeal arising
therefrom. The Indemnifying Party will not settle any such claim
without the Indemnified Party’s prior written consent (which consent will not be
unreasonably withheld or delayed), unless such settlement is solely for monetary
damages for which the Indemnified Party is fully indemnified under this
Agreement. If the Indemnifying Party does not assume full control
over the defense of a claim pursuant to this Section 10.2, then the Indemnifying
Party may participate in such investigation, defense or trial, solely at its
cost and expense, and the Indemnified Party will have the right to defend or
settle such claim in such manner as the Indemnified Party deems appropriate,
solely at the cost and expense of the Indemnifying Party.
10.3 Indemnification
of IGT against Claims Arising from LVGI Installations. LVGI
will defend, indemnify and hold harmless IGT and its officers, directors,
employees and agents from any and all damages, costs, and expenses arising from
any claim relating to or arising from any uses or installations of the LVGI
Developed Applications.
ARTICLE
11
Term
and Termination
11.1 Term. The
term of this LASA will commence on the Effective Date and will continue in force
until terminated by mutual written consent of all parties to this LASA unless
terminated earlier as set forth in this Article 11. However, the support
obligations of Section 5 shall conclude at the earlier of eight (8) years from
the Effective Date or the date on which this Agreement is terminated per its
terms.
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11.2 Termination for
Regulatory Compliance. Each Party and its affiliates conduct
business in a highly regulated industry under privileged licenses issued by
gaming regulatory authorities both domestic and international. Each
Party maintains a compliance program that has been established to protect and
preserve the name, reputation, integrity, and good will of such Party and its
affiliates and to monitor compliance with the requirements established by gaming
regulatory authorities in various jurisdictions around the
world. Each Party agrees to cooperate with requests, inquiries, or
investigations of gaming regulatory authorities or law enforcement agencies in
connection with the performance of this LASA. Each Party agrees to
fully cooperate with the other Party in the completion of any necessary due
diligence background investigation. If either Party receives a
written or oral opinion, recommendation or indication from a gaming regulatory
authority (including a representative thereof) or if either Party determines,
based upon facts and evidence that would reasonably be accepted by gaming
regulatory authorities or other licensed gaming entities, that continuation of
this LASA would jeopardize the gaming licenses, permits or status of such Party
or any of its affiliates with any gaming regulatory authority or similar law
enforcement authority (“Regulatory Trigger”), then: (a) such Party will give
notice to the other Party of the Regulatory Trigger, including details of the
opinion, recommendation, indication or asserted facts (to the extent known by
the receiving Party), and provided such Party is given a time period to address
the basis for said Regulatory Trigger, that Party will provide the other Party a
reasonable time frame within such Party's reasonably allotted time period to
comment upon and take action to remove such basis; and (b) if such Regulatory
Trigger is not cured to that Party's reasonable satisfaction, such that a
reasonable risk remains that jeopardizes the status of such Party with any
gaming regulatory authority, that Party may terminate such portion of this LASA
which would cure the Regulatory Trigger (leaving the remainder of this LASA in
force and effect), and if such cannot be effected, such Party may terminate this
entire LASA immediately.
11.3 Consequences of
Termination. In the event that this LASA or any portion hereof
is terminated pursuant to Section 11.1, any payments made or payment obligations
that exist pursuant to this LASA at the time of such termination shall be
non-refundable or remain due and payable (as the case may be); provided that
such Regulatory Trigger does not mandate otherwise. In addition, the
rights intended to be unaffected according to the express provisions of this
LASA and Articles 4, 8-11, and 13 will survive any such
termination. All other provisions of this LASA will be
terminated.
11.4 Dispute
Resolution. Prior to any termination of this LASA for breach,
or the commencement of any litigation by one Party (the first Party) against the
other arising out of an alleged breach of this LASA, the matter must first be
referred to a senior executive of each Party by the first Party sending to the
other Party a written notice that sets out the particulars of the dispute and
the alleged breach of this LASA. The senior executives of each Party
will then arrange to meet at the next most convenient time, but no later than 30
days from receipt of the dispute notice, and will use commercially reasonable
efforts to resolve the dispute in good faith. Should the senior
executives fail to resolve the dispute within seven days of the date of their
meeting, then either Party may initiate non-binding mediation to resolve such
dispute, with costs to be shared equally by the Parties. If such
mediation fails to resolve such dispute within 10 days of the mediation, each
Party is free to seek any remedies available to it to resolve such dispute,
including litigation.
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11.5 Termination for
Failure to Pay. Notwithstanding
Section 11.4 above, any failure to pay monies due under this Agreement when due,
including any royalties due under Article 3, shall constitute a material breach,
and the non-breaching party may immediately terminate this Agreement for
non-payment when the defaulting party fails to cure such non-payment within 30
days of written notice specifying such non-payment.
ARTICLE
12
Certified
Application Developer
12.1 Certified
Application Developer. IGT will grant LVGI status as a
Certified Application Developer (to be further defined) for the IGT sb
System. The granting of this status will require that LVGI
demonstrate, to IGT’s satisfaction, the ability to meet specifications and
customer expectations, as to be determined.
ARTICLE
13
Miscellaneous
13.1 Notices. Whenever
this LASA provides that any notice, demand, request, consent, approval,
declaration, or other communication be given to or served upon any of the
parties by another, such notice, demand, request, consent, approval,
declaration, or other communication shall be in writing and shall be deemed to
have been validly served, given, or delivered (and “the date of such notice” or
words of similar effect will mean the date) five days after deposit in the
United States mails, certified mail, return receipt requested, with proper
postage prepaid, or upon confirmed receipt thereof (whether by noncertified
mail, telecopy, express delivery, or otherwise), whichever is earlier, and
addressed to the party to be notified as follows:
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If
to IGT, at:
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IGT
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Fax: 775.448.1488
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with
copies to:
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Fulbright
& ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
Fax: 214.855.8200
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If
to LVGI, at:
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LVGI
▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇ ▇▇▇▇▇▇▇
Fax:
▇▇▇.▇▇▇.▇▇▇▇
With copies to
▇▇▇▇▇@▇▇▇▇.▇▇▇
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with
copies to:
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▇▇▇▇▇ & ▇▇▇▇▇▇, Ltd.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇
▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇
▇▇▇▇▇
Fax: 702-382-4805
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or to
such other address as each party may designate for itself by like
notice. No notice, demand, request, consent, approval, declaration,
or other communication shall be deemed to have been given or received unless and
until it sets forth all items of information required to be set forth therein
pursuant to the terms of this LASA.
13.2 Choice of
Law. This LASA will be governed by and construed in accordance
with the laws of the State of Nevada, without regard to any conflicts of
laws. IN THE EVENT OF A DISPUTE BETWEEN THE PARTIES RELATING TO THIS
LASA, EACH OF THE PARTIES HERETO SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEVADA COUNTY OF WASHOE AND DOES HEREBY WAIVE ANY CLAIM
THAT SUCH FORUM IS INCONVENIENT.
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13.3 Integration
Amendments; Waivers. This LASA constitutes the entire
agreement among the Parties with respect to the subject matter hereof and
supersedes all previous written, and all previous or contemporaneous oral,
negotiations, understandings, arrangements, understandings, or
agreements. This LASA may not be amended, modified, or supplemented,
or any provision of this LASA waived, except by a writing signed by all the
parties to this LASA. No custom, practice, course of dealing, or
similar conduct will be deemed to amend, modify, or supplement any term of this
LASA. The failure of any Party to enforce any right or remedy under
this LASA, or to enforce any such right or remedy promptly, will not constitute
a waiver thereof, nor give rise to any estoppel against such Party, nor excuse
any other Party from its obligations under this LASA. Any waiver of
any such right or remedy by any Party must be in writing and signed by the Party
against which such waiver is sought to be enforced. No waiver will be
deemed a continuing waiver or a waiver of any right beyond the specific right
waived in such waiver.
13.4 Further
Assurances. Each Party to this LASA shall, without the
necessity of any further consideration, execute and deliver any and all such
further documents and take any and all such other actions as may be reasonably
necessary or appropriate to carry out the intent and purposes of this LASA and
to consummate the transactions contemplated hereby.
13.5 Force
Majeure. No Party will be deemed in default if delayed or
prevented from performing its obligations under this LASA, in whole or in part,
due to an act of God, fire, flood, explosion, civil disorder, strike, lockout or
other labor trouble, material shortages of utilities, equipment, materials or
facilities, delay in transportation, breakdown or accident, riot, war, terrorist
attack or other cause beyond its reasonable control (a “Force Majeure Event”);
provided that such party will resume full performance of this Agreement as soon
as practicable following the conclusion of the Force Majeure Event; and provided
further, that any adverse event resulting directly or indirectly from conditions
generally affecting any industry or industry sector in which a Party operates or
competes which does not have a materially disproportionate impact on the Party
relative to other industry participants shall not be considered a Force Majeure
Event under this LASA.
13.6 Headings. The
headings in this LASA are for convenience of reference only and are not part of
the substance of this LASA.
13.7 Severability. It
is not the intention of the Parties to this LASA expressly to violate any public
policy, statutory or common law rules, regulations, or decisions of any
governmental or regulatory body. If any provision of this LASA are
interpreted or construed as being in violation of any such policy, rule,
regulation, or decision, the provision, section, sentence, word, clause, or
combination thereof causing such violation shall be rendered inoperative to the
minimum extent necessary in order to not be violative as set forth above (and in
lieu thereof the Parties jointly request the court to insert such provision,
sentence, word, clause, or combination thereof that is as favorable as possible
to the Party the rights of which were made inoperative as may be valid and
consistent with the intent of the parties under this LASA) and the remainder of
this LASA, as amended, shall remain binding upon the Parties to this LASA,
unless the inoperative provision would cause enforcement of the remainder of
this LASA to be inequitable under the circumstances.
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13.8 Time. Time
shall be of the essence with respect to this LASA.
13.9 Assignment.
Neither this LASA nor any rights hereunder may be transferred
or assigned, nor any duties under this LASA delegated, by operation of law or
otherwise, without the written consent of all parties to this LASA, except that
IGT may assign this LASA and all rights hereunder and delegate all of its obligations hereunder to an affiliate of IGT and except that
LVGI may assign this LASA and all
rights hereunder and delegate all of its
obligations hereunder to a person or entity
that is a non-Competitor of IGT that acquires all or substantially all of the
assets of LVGI in a single transaction or series or related transactions. For
the purposes of the foregoing, a Change of Control of LVGI will be
deemed an attempted assignment of this LASA
and the rights hereunder and a delegation of all duties hereunder. Any attempted assignment, transfer or
delegation that is that is not in conformance with this agreement is
void.
“Change of
Control” means the occurrence of any of the following
events:
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a
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LVGI
becomes aware of the acquisition by any “person” or group (within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), or any
successor provision), including any group acting for the purpose of
acquiring, holding or disposing of securities (within the meaning of Rule
13d-5(b)(1) under the Exchange Act) in a single transaction or in a
related series of transactions, by way of merger, consolidation or other
business combination or purchase of “beneficial ownership” (within the
meaning of Rule 13d-3 under the Exchange Act, or any successor provision)
of 20% or more of the total voting power of the Voting Stock of
LVGI;
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b
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(i) there
shall be consummated any share exchange, consolidation or merger of LVGI
pursuant to which LVGI’s common stock would be converted into cash,
securities or other property, other than pursuant to a share exchange,
consolidation or merger of LVGI in which the holders of LVGI’s common
stock immediately prior to the share exchange, consolidation or merger
have, directly or indirectly, at least a majority of the total voting
power of the voting stock of the continuing or surviving corporation
immediately after the share exchange, consolidation or merger, or
(ii) LVGI sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of the assets of LVGI and its
Restricted Subsidiaries to another Person and any “person” (as defined in
clause (a) above) is or becomes the “beneficial owner” (as defined in
clause (a) above), directly or indirectly, of 20% or more of the
total voting power of the voting stock of the transferee entity in such
disposition of assets;
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c
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during
any period of two consecutive years, individuals who at the beginning of
such period constituted the Board of Directors (together with any new
directors whose election by such Board of Directors or whose nomination
for election by the stockholders of LVGI was approved by a vote of a
majority of the directors of LVGI then still in office who were either
directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors then in
office;
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d
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the
adoption of a plan relating to the liquidation or dissolution of LVGI;
or
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e
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the
occurrence of any other event that would constitute a change in control of
LVGI within the meaning of Item 5.01 (or successor item) of Forms 8-K (or
successor form) under the Exchange
Act.
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13.10 No
Partnership. This LASA forms a contractual arrangement only
and does not constitute the parties as a partnership or affiliated
party.
13.11 Business
Day. Should the terms of this LASA require the performance of
any obligation or the fulfillment of any condition on a day other than a
business day, such obligation or fulfillment may be delayed until midnight on
the next day that is a business day for the party to perform.
13.12 Counterparts. This
LASA may be executed in any number of counterparts, by means of facsimile or
portable document format (pdf), which shall individually and collectively
constitute one agreement.
13.13 Publicity. Neither
Party shall issue any press release or make any other public announcement with
respect to this LASA or the transactions contemplated hereby without obtaining
the prior written approval of the other Party (which will not be unreasonably
withheld or delayed). Where disclosure of information regarding this
LASA or the transactions contemplated hereby may be required by law or the
regulations of any securities exchange, the Party complying with applicable law
or regulations shall provide sufficient time for the other Party to comment on
those portions of such disclosures that pertain to this LASA before such
disclosures are made.
EXECUTION
Each
party has caused this LASA to be executed by a duly authorized officer and
delivered as of the Effective Date, whereupon it enters into full force and
effect in accordance with its terms.
[Signature
Page Follows]
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IN WITNESS WHEREOF, the
parties have caused this LASA to be executed and delivered as of the date first
above written.
LVGI
By: /s/ ▇▇▇ ▇.
▇▇▇▇▇▇▇
Name: ▇▇▇ ▇.
▇▇▇▇▇▇▇
Title: President &
CEO
IGT
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Title: Exec. VP
– Corporate
Strategy
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