LICENCE GRANT AND ASSET PURCHASE AGREEMENT
LICENCE GRANT AND ASSET
PURCHASE AGREEMENT
THIS AGREEMENT made as of the
22nd
day of August, 2008 (the "Effective Date")
BETWEEN:
FIRESWIRL TECHNOLOGIES
INC.
a
corporation with an office at ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
("FTI")
-
and -
FIRESWIRL SYSTEMS
INC.
a
corporation with an office at ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
(the "Vendor")
-
and –
a
corporation with an office at Suite 2320 Harbour Centre, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
(the "Purchaser")
WHEREAS:
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A.
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The Vendor is
the owner of certain technology used for the purpose of providing various
online casino games and multi-player poker games and the servers that
currently host such technology, as described in Schedule A hereto (the
"Technology");
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B.
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The Vendor is
a wholly owned subsidiary of FTI;
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C.
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The Vendor
wishes to licence the Technology and to the
Purchaser;
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D.
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Upon the
satisfaction of certain conditions precedent, the Vendor wishes to sell,
and the Purchaser and the Purchaser wishes to purchase, the Technology and
the servers that currently host the Technology;
and
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E.
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Concurrent to
such sale of the Technology, the Purchaser shall grant to the Vendor a
perpetual licence to commercially exploit the
Technology.
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NOW THEREFORE THIS AGREEMENT
WITNESSES that in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties covenant and agree as
follows:
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1.
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INTERPRETATION
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1.1 Defined
Terms. Unless otherwise defined in this Agreement, the
following terms have the following meanings:
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(a)
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"Asset Purchase &
Licence-Back Agreement" means the Asset Purchase & Licence-Back
Agreement attached as Schedule B
hereto;
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(b)
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"Confidential Information"
means trade secrets and other information not generally known to
the public that is owned by Purchaser or Vendor or by any entity
affiliated, associated or related to Purchaser or Vendor, or by any of
their respective suppliers, customers, or other business partners.
Confidential Information includes, without limitation, the Technology, any
enhancements, and all source code and related documentation, financial
information, legal, corporate, marketing, research, technical,
manufacturing, personnel, customer and supplier information and any other
information, in whatever form or media, specifically identified as
confidential by a party, or the nature of which is such that it would
generally be considered confidential in the industry in which that party
operates, or which that party is obligated to treat as confidential
property;
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(c)
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"Full Payment Date"
means the date upon which the aggregate total amount of Revenue
Sharing Payments received by the Vendor from the Purchaser equals
$1,100,000;
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(d)
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"Gamboozle" means
Gamboozle Media Inc., a wholly-owned subsidiary of the Purchaser
incorporated under the laws of the Province of British
Columbia;
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(e)
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"IMI Shares" means the
1,500,000 Common shares without par value (at a deemed price of $0.25 per
share equaling $375,000) in the capital of the Purchaser to be issued and
registered in the name of the Vendor as partial satisfaction of the
Purchase Price pursuant to the terms of Section 2.2 (a) of the Asset
Purchase & Licence-Back
Agreement;
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(f)
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"Initial Revenue Sharing
Term" means the period of time commencing on the Effective Date and
ending upon the earlier of:
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(a)
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eighteen (18)
months after the Effective Date; or
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(b)
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the Listing
Date Date;
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(g)
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"Licence Term" means
period of time beginning on the Effective Date and ending on the earlier
of:
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(a)
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Thirty-six
(36) months after the Effective Date;
or
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(b)
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the Full
Payment Date;
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(h)
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"Listing Date" means any
date, within the eighteen (18) month period following the Effective Date,
upon which the shares in the capital of the Purchaser are listed on a
Canadian stock exchange;
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(i)
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"Person" means and
includes any individual, corporation, partnership, firm, joint venture,
syndicate, association, trust, government, governmental agency or board or
commission or authority, and any other form of entity or
organization;
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(j)
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"Pooling Agreement"
means the Pooling Agreement between the Vendor and the Purchaser
with respect to the shares in the capital of the Purchaser, attached as
Schedule C hereto;
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(k)
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"Purchaser Sublicencee"
means any Person to whom the Purchaser, directly or indirectly,
grants a sub-licence with respect to the
Technology;
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(l)
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"Servers" means the
physical servers and hardware servers that currently host the Technology
specifically: Game Server 1: HP Proliant Server S/N: MX271603KH, Game
Server 2: HP Proliant Server S/N: MX271201KJ and Database
Server: Intel 2U Server S/N:
SR2500ALLXNA;
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(m)
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"Subsequent Revenue Sharing
Term" means the period of time commencing on the first day
following the Initial Revenue Sharing Term and ending on the earlier
of:
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(a)
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the expiry of
the Licence Term; or
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(b)
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the Full
Payment Date;
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(n)
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"Subsidiary" means a
corporation, company or other
entity:
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(a)
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more than
fifty percent (50%) of whose outstanding shares or securities
(representing the right to vote for the election of directors or other
managing authority) are, now or hereafter, owned or controlled, directly
or indirectly, by a party hereto, but such corporation, company or other
entity shall be deemed to be a Subsidiary only so long as such ownership
or control exists; or
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(b)
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which does
not have outstanding shares or securities, as may be the case in a
partnership, joint venture or unincorporated association, but more than
fifty percent (50%) of whose ownership interest representing the right to
make the decisions for such corporation, company or other entity is, now
or hereafter, owned or controlled, directly or indirectly, by a party
hereto, but such corporation, company or other entity shall be deemed to
be a Subsidiary only so long as such ownership or control
exists.
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(o)
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"Technology" has the
meaning ascribed to it in the
recitals;
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(p)
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"Technology Licence" has
the meaning ascribed to it in
Section 2.1;
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(q)
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"Technology Revenues"
means the gross revenues of the Purchaser and its Subsidiaries and any
Purchaser Sublicencee which are derived, directly or indirectly, from the
exploitation of the Technology by the Purchaser and/or its Subsidiaries
and/or any Purchaser Sublicencee;
and
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(r)
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"Territory" means
worldwide.
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1.2 Interpretation of Certain
Terms. In this Agreement, unless the context otherwise
requires, words importing the singular include the plural and vice-versa, words
importing gender include all genders and the word "including" is not limiting
(whether or not non-limiting language is used with reference
thereto).
1.3 Sections and
Headings. The division of this Agreement into sections,
subsections and paragraphs and the insertion of headings are for reference
purposes only and shall not affect the interpretation of this
Agreement. Unless otherwise indicated, any reference herein to a
particular section, subsection, paragraph or Schedule refers to the section,
subsection, paragraph of or Schedule to this Agreement.
1.4 Currency. Unless
otherwise stated, all amounts referred to in this Agreement are stated and
payable in Canadian dollars.
1.5 Governing Law and Attornment.
This Agreement shall be governed by and construed in accordance with the laws of
the Province of British Columbia and the federal laws of Canada applicable
therein. Each party irrevocably consents to the non-exclusive
jurisdiction and venue of the courts located at Vancouver, British Columbia with
respect to any claim, action or proceeding arising out of or in connection with
this Agreement or the transactions contemplated hereby.
1.6 Schedules. The
following schedules are attached to this Agreement and form an integral part
hereof:
Schedule A –
Technology
Schedule B – Asset
Purchase and Licence-Back Agreement
Schedule C –
Pooling Agreement
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2.
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TECHNOLOGY
LICENCE
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2.1 Grant of Licence. Subject to
the terms and conditions of this Agreement, the Vendor hereby grants to the
Purchaser, during the Licence Term, a non-exclusive licence within the Territory
to:
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(a)
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Commercially
exploit the Technology in any manner including but not limited
to using the Technology to conduct
business;
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(b)
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Grant a
sub-license of the Technology to
Gamboozle;
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(c)
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Grant
sub-licences of the Technology to others as may be required by the Vendor
to commercially exploit or otherwise use the Technology, subject to the
prior written consent of the Vendor with respect to each such sub-licence
not to be unreasonably withheld;
and
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(d)
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Use the
source code for the Technology to further improve, modify and enhance the
Technology
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(the "Technology
Licence").
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3.
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PAYMENTS
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3.1 Revenue Sharing Payments. The
Purchaser shall pay the Vendor, within thirty (30) days following the receipt of
any Technology Revenues by the Purchaser and/or its Subsidiaries and/or any
Purchaser Sublicencee, the following amounts (the "Revenue Sharing
Payments"):
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(a)
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ten percent
(10%) of the Technology Revenues generated during the Initial Revenue
Sharing Term; and
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(b)
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twenty
percent (20%) of the Technology Revenue generated during the Subsequent
Revenue Sharing Term.
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3.2 The maximum
aggregate total amount of the Revenue Sharing Payments shall not
exceed:
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(a)
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$725,000
during the Initial Revenue Sharing Term;
and
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(b)
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$1,100,000
during the Subsequent Revenue Sharing
Term.
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4.
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SALE
OF THE TECHNOLOGY
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4.1 Conditional Purchase and
Sale. The Vendor, FTI and the Purchaser hereby covenant and
agree to, execute and deliver the Asset Purchase and Licence-Back Agreement and
the Pooling Agreement, within five (5) days following the earlier
of:
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(a)
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the Listing
Date; or
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(b)
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the Full
Payment Date.
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5.
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REPRESENTATIONS
AND WARRANTIES AND COVENANTS OF
VENDOR
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The Vendor
represents and warrants to the Purchaser as follows, with the intent that the
Purchaser shall rely on these representations and warranties in entering into
this Agreement and in concluding the purchase and sale contemplated by this
Agreement.
5.1 Capacity to
Licence. The Vendor is a corporation duly incorporated,
validly existing and in good standing under the laws of the Province of British
Columbia and has the power and capacity to perform this Agreement and owns such
rights, titles and interests in the Technology as are necessary to grant the
rights under this Agreement.
5.2 Ilegal Use. The Vendor shall
not subject the Technology to illegal usage and shall obtain any required
governmental authorizations, approvals, licences, permits, certificates or
registrations to comply with the laws of any jurisdiction(s) that are applicable
to Vendor's business operations relating to the Technology.
5.3 No Warranty. The
Technology is provided under this Agreement on an "As Is" basis, without
warranty of any kind. The Vendor hereby disclaims all warranties and conditions,
either express or implied, including but not limited to implied warranties or
conditions of merchantability, merchantable quality, fitness for a particular
purpose, durability, title and any other implied warranty or condition arising
by statute or custom or usage of trade. The Purchaser acknowledges that the
Vendor is not liable, for among other things, if the Technology does
not meet the requirements of Purchaser or if it does not operate free of errors,
uninterrupted or if the Technology does not function, for whatever reason, in
Purchaser's environment.
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6.
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REPRESENTATIONS,
WARRANTIES AND COVENANTS OF
PURCHASER
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The Purchaser
represents and warrants to the Vendor as follows, with the intent that the
Vendor shall rely on these representations and warranties in entering into this
Agreement, and in concluding the purchase and sale contemplated by this
Agreement.
6.1 Status of
Purchaser. The Purchaser is a corporation duly incorporated,
validly existing and in good standing under the laws of the Province of British
Columbia and, has the power and capacity to enter into this Agreement and carry
out its terms.
6.2 Corporate Authority. The
execution and delivery of this Agreement and the completion of the transactions
contemplated by this Agreement have been duly and validly authorized by all
necessary corporate action on the part of the Purchaser, and this Agreement
constitutes a legal, valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms except as limited by laws of
general application affecting the rights of creditors.
6.3 Sale Shall Not Cause
Default. Neither the execution and delivery of this Agreement
nor the completion of the purchase and sale contemplated by this Agreement shall
violate any of the terms and provisions of the constating documents of the
Purchaser, or any order, decree, statute, by-law, regulation, covenant or
restriction applicable to the Purchaser.
6.4 Ilegal Use. The Purshaser
shall not subject the Technology to illegal usage and shall obtain any required
governmental authorizations, approvals, licences, permits, certificates or
registrations to comply with the laws of any jurisdiction(s) that are applicable
to the Purchaser's business operations relating to the Technology.
6.5 Sub-Licencing. The
Purchaser shall not sub-licence the Technology (except to Gamboozle) and shall
ensure that Gamboozle does not sub-licence the Technology, without the prior
written consent of the Vendor for each and every sub-licence the Purchaser
and/or Gamboozle wish to grant. The Purchaser shall also ensure that
any such sub-licencing of the Technology by the Purchaser or Gamboozle will be
subject to terms no less materially protective of the Vendor's rights relating
to the Technology established in this Agreement.
6.6 Indemnity. The Purchaser shall
defend, indemnify, and forever hold harmless Vendor from any claims, damages,
losses, costs or expenses (including without limitation lawyer's fees) incurred
by Vendor in connection with all claims, suits, judgments and causes of action
for (i) any misrepresentation, breach or non-fulfillment of covenant on the part
of the Purchaser under this Agreement; (ii) any injury, death or property damage
arising from Purchaser's negligence or misconduct in connection with Purchaser's
use, operation or sub-licensing of the Technology or any portion thereof or
(iii) claims made by third parties against Vendor arising from or related to
Purchaser's use, operation or sub-licensing of the Technology or any portion
thereof. No remedy herein conferred upon Vendor is intended to be, nor shall it
be construed to be, exclusive of any other remedy provided herein or as allowed
by law or in equity, but all such remedies shall be cumulative.
6.7 No Hold Period. The
Purchaser shall make best efforts, including the addition of any necessary
prospectus language, to ensure that 300,000 of the IMI Shares are not subject to
any statutory or regulatory hold period requirements.
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7.
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SURVIVAL
OF REPRESENTATIONS, WARRANTIES AND
COVENANTS
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7.1 Vendor's Representations, Warranties
and Covenants. All representations, warranties, covenants and
agreements made by the Vendor in this Agreement or under this Agreement shall,
unless otherwise expressly stated, survive Closing and any investigation at any
time made by or on behalf of the Purchaser and shall continue in full force and
effect for the benefit of the Purchaser.
7.2 Purchaser's Representations,
Warranties and Covenants. All representations, warranties,
covenants and agreements made by the Purchaser in this Agreement or under this
Agreement shall, unless otherwise expressly stated, survive Closing and any
investigation at any time made by or on behalf of the Vendor, and shall continue
in full force and effect for the benefit of the Vendor.
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8.
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CONFIDENTIALITY
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8.1 Acknowledgement of Significance.
Each party acknowledges that in connection with this Agreement, Purchaser
may disclose to Vendor or allow Vendor access to and Vendor may disclose to
Purchaser or allow Purchaser access to Confidential Information. Each
party further acknowledges that this information is of significant value to the
disclosing party.
8.2 No Rights Acquired. Vendor and
Purchaser each acknowledge and agree that they shall not acquire any right,
title or interest in or to any Confidential Information disclosed to it by the
other party pursuant to this Agreement.
8.3 Covenant of Non-disclosure.
During the term of this Agreement and thereafter, each party shall
maintain in strict confidence all Confidential Information disclosed to it by
the other party, or to which it obtains access as a result of this Agreement.
Notwithstanding the foregoing, to the extent the receiving party can establish
it is required by law to disclose any Confidential Information provided to it by
the other party, it shall be permitted to do so, provided that notice of the
requirement to disclose is first delivered to the disclosing party so that the
disclosing party may contest this potential disclosure.
8.4 Exceptions. The non-disclosure
obligations under this Agreement shall not apply to Confidential Information
which the receiving party can establish:
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(a)
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Is or becomes
readily available to the public other than through a breach of this
Agreement;
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(b)
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Is disclosed,
lawfully and not in breach of any contractual or other legal obligation,
to it by a third party; or
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(c)
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Through
written records, was known to it or developed by it, prior to the date of
first disclosure of the Confidential Information under this
Agreement.
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9.
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DELIVERY,
NO ADDITIONAL SERVICES &
CO-OPERATION
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9.1 Vendor Deliveries. Vendor
shall deliver to Purchaser, within 10 business days of the date of the Agreement
(the "Delivery
Date"):
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(a)
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Copy of the
compiled/executable code
the Technology;
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(b)
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Copy of the
source code of the Technology;
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(c)
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Other
technical information relating to the
Technology;
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(d)
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Copies of
user manuals and any other documentation relating to the use and operation
of the Technology; and
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(e)
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The
Servers.
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9.2 No Strict Enforement of Delivery
Date. The Vendor shall use commercially reasonable efforts to meet the
Delivery Date, but does not represent or warrant that this Delivery Date will be
met. Notwithstanding any other provision in this Agreement, under no
circumstances shall Vendor be liable for any delay in delivery of any component
of the Assets.
9.3 No Additional
Services. The Purchaser agrees that
there are to be no training, maintenance, programming or any other services to
be provided under this Agreement by Vendor in relation to the Technology and/or
the Technology Licence, including, without limitation, any services in relation
to any errors, malfunctions, bugs or defects which may arise during the term of
this Agreement, except where these services are rendered through any further
written agreement between the parties and, in that case, at a fee to be agreed
upon at the time the further written agreement may be entered into.
9.4 Further Co-operation. Vendor
and Purchaser covenant with each other to co-operate in all reasonable ways in a
prompt and timely fashion in the prosecution of any infringement suit by the
Vendor or Purchaser and in any defence of any action, suit or proceeding
instituted for the impeachment of or for a declaration of infringement of the
Technology. All costs and expenses incurred in investigating, resisting,
litigating and settling such a complaint, including payment of any award of
damages and/or costs to any third party, shall be borne by the party incurring
the expense or cost.
9.5 Improvements to Technology.
Any improvements, modifications, or changes to the source code of the
Technology made by either the Vendor or Purchaser during the Licence Term will
remain the individual and sole exclusive property of the party that makes such
improvements, modifications or other changes.
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10.
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TERM
AND TERMINATION
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10.1 Breach and
Bankruptcy. The Notwithstanding any other provision in this
Agreement, any party hereto may terminate this Agreement effective immediately
upon delivery of notice of termination to the other if:
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(a)
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any party
commits a material breach of this Agreement or consistently fails to
properly perform and observe any of its obligations under this Agreement,
and fails to rectify the situation within 30 calendar days after another
party delivering notice of the breach or consistent failure to perform to
the other; or
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(b)
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any party
becomes insolvent, or a receiver or receiver-manager is appointed for any
part of the property of another party, or another party makes an
assignment, proposal or arrangement for the benefit of its creditors or
another party files an assignment in bankruptcy, or any proceedings under
any bankruptcy or insolvency laws are commenced against another party and
any of the same is not dismissed within 30 calendar days following
commencement thereof.
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10.2 The Vendor may
terminate this Agreement if the Vendor is prevented from licensing or providing
any portion of the Technology by any law, regulation, requirement or ruling
issued in any form whatsoever by a judicial or other governmental body, or if a
notice from a government agency or department indicates the Vendor is not
permitted to license or provide any portion of the Technology. Nothing herein
shall be construed to require the Vendor to seek a waiver of any law, rule,
regulation or restriction, or seek judicial review or appeal of any court order.
The Vendor shall have no liability to the Purchaser or its Affiliates or any
Purchaser Sublicencee arising from or related to the termination of this
Agreement as set out herein.
10.3 Upon termination or
expiration of this Agreement, each party shall immediately deliver up to the
other party, at each party's own expense and risk, all Confidential Information
provided to it by the other party and all copies thereof, and all other
materials, documents, information, contracts, equipment and property in each
such party's possession, charge, control or custody which are owned by or
related in any way to the business affairs of the other party.
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11.
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GENERAL
PROVISIONS
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11.1 Entire
Agreement. This Agreement and the Schedules attached hereto
constitute the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes any previous or contemporaneous oral or
written agreement, negotiation, representation or understanding among the
parties regarding such subject matter.
11.2 Waiver and
Consent. No consent or waiver, express or implied, by any
party to or of any breach or default by another party of any or all of its
obligations under this Agreement shall be effective unless it is in writing, nor
shall it eliminate or modify the need for a specific consent or waiver in any
other or subsequent instance.
11.3 Amendments. This
Agreement may not be amended except by written agreement among all the
parties.
11.4 Assignment. No
party to this Agreement may assign any of its rights or obligations under this
Agreement without the prior written consent of the other parties hereto except
that the Purchaser may sub-licence the Technology to Gamboozle in accordance
with the terms of this Agreement.
11.5 Binding
Effect. This Agreement shall enure to the benefit of and be
binding upon the parties and their respective successors and permitted
assigns.
11.6 Time of
Essence. Time shall be of the essence of this
Agreement.
11.7 Further
Assurances. The Vendor, FTI and the Purchaser hereby each
convenant and agree to act in good faith with respect to the satisfaction of its
obligations under this Agreement including the parties’ obligations pursuant to
Section 4.1 above, and, at the reasonable request of another party, shall,
at its own expense, take such actions and do such things and, as the case may
be, execute and deliver or furnish such additional agreements, documents and
instruments as may, from time to time, be necessary or reasonably desirable to
better effectuate the transactions contemplated by this Agreement, the Asset
Purchase & Licence-Back Agreement and the Pooling Agreement.
11.8 Notices. Every
notice, request, demand or communication required or permitted to be given under
this Agreement shall be in writing and delivered by hand or facsimile
transmission to the party which it is to be given as follows:
To the Vendor or
FTI:
Fireswirl
Technologies Inc.
▇▇▇▇▇ ▇▇▇, ▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
With a copy
to:
Sangra Moller
LLP
Barristers &
Solicitors
#1000 – ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇
Tel: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
To the Purchaser
at:
Suite 2320 Harbour
Centre
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇
Tel: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
With a copy
to:
▇▇▇▇▇▇▇▇▇▇ O'▇▇▇▇▇▇
▇▇▇▇▇ LLP
▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇
Tel: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
or to such other
address or facsimile number as is specified by a party by notice to the other
party given in accordance with this subsection. Any such notice, demand, request
or direction shall be deemed to have been given and received if delivered, on
the next business day after the day of delivery, and if sent by facsimile
transmission, on the first business day after the day of
transmittal.
11.9 Announcements. The
parties shall consult with each other before issuing any press release or making
any other public announcement with respect to this Agreement or the transactions
contemplated hereby and, except as required by any applicable law or regulatory
requirement, neither the Vendor nor the Purchaser shall issue any such press
release or make any such public announcement without the prior written consent
of the other, which consent shall not be unreasonably withheld or
delayed.
11.10 Performance on
Holidays. If any action is required to be taken pursuant to
this Agreement on or by a specified date which is not a business day, then such
action shall be valid if taken on or by the next succeeding business
day.
11.11 Counterparts. This
Agreement may be executed in counterparts and by facsimile or other electronic
means, each of which shall constitute an original and all of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF the parties
hereto have duly executed this Agreement as of the day and year first written
above.
|
FIRESWIRL
TECHNOLOGIES INC.
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and CEO
|
|
|
FIRESWIRL
SYSTEMS INC.
By: /s/
▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President and CEO
|
|
|
By: /s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President
|
Schedule
A
Technology
|
A.
|
Online
Casino Suite Games Software,
including:
|
|
1.
|
Slots
|
|
2.
|
Video
Poker
|
|
3.
|
Blackjack
|
|
4.
|
Baccarat
|
|
5.
|
Sicbo
|
|
6.
|
Roulette
|
|
7.
|
Red
Dog
|
|
8.
|
Craps
|
|
B.
|
Online
Multiplayer Poker Games Software,
including:
|
|
1.
|
Texas Hold'em
Ring Games
|
|
2.
|
Texas Hold'em
Sit n' Go Tournament Games
|
|
3.
|
Texas Hold'em
Multi-Table Tournament Games
|
|
4.
|
Texas Hold'em
'Flash' Based Game Client
|
|
5.
|
Omaha Hi/Lo
Games
|
|
6.
|
7-Card Stud
Game
|
|
7.
|
General C++
Based Game Client
|
|
C.
|
Chipsnchat
|
|
1.
|
"Chipsnchat"
membership database at its current
state
|
|
2.
|
URL
▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
3.
|
Any existing
Integrations into social networks ▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇.▇▇▇ and
▇▇▇▇▇.▇▇▇
|
|
D.
|
All manuals,
publications, technical documentation, user documentation and other
related materials pertaining to the
Technology
|
|
E.
|
All source
code and user guides associated with the
Technology.
|
SCHEDULE
B
ASSET PURCHASE &
LICENCE-BACK AGREEMENT
THIS AGREEMENT made as of the
____ day of ____________, 20___ (the “Effective Date”).
BETWEEN:
FIRESWIRL TECHNOLOGIES
INC.
a
corporation with an office at ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
("FTI")
-
and -
FIRESWIRL SYSTEMS
INC.
a
corporation with an office at ▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
(the "Vendor")
-
and –
a
corporation with an office at Suite 2320 Harbour Centre, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇
(the "Purchaser")
WHEREAS:
|
F.
|
The Vendor is
the owner of certain technology used for the purpose of providing various
online casino games and multi-player poker games as described in Schedule
A hereto (the "Technology");
|
|
G.
|
The Vendor is
a wholly owned subsidiary of FTI;
|
|
H.
|
The Vendor,
the Purchaser and FTI are parties to a Licence Grant & Asset Purchase
Agreement dated August ____, 2008 (the “Licence
Agreement”);
|
|
I.
|
Pursuant to
the terms of the Licence Agreement, upon the satisfaction of certain
conditions precedent, the parties agreed to enter into this Agreement
whereby the Vendor will sell, and the Purchaser will purchase the
Technology and the servers that currently host the Technology;
and
|
|
J.
|
Concurrent to
the sale of the Technology from the Vendor to the Purchaser, the Purchaser
shall grant to the Vendor a perpetual licence to commercially exploit the
Technology.
|
NOW THEREFORE THIS AGREEMENT
WITNESSES that in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties covenant and agree as
follows:
|
12.
|
INTERPRETATION
|
12.1 Defined
Terms. Unless otherwise defined in this Agreement, the
following terms have the following meanings:
|
(a)
|
"Assets" has the meaning
ascribed to it in
subsection 2.1;
|
|
(b)
|
"Closing" or "Time of Closing" means
the execution and delivery of this Agreement by the parties hereto and the
completion of the purchase and sale of the Assets in accordance with the
terms and provisions of this
Agreement;
|
|
(c)
|
"Competing Sale Revenues"
means revenues generated at any time during the 36 month period following
the date of this Agreement by, the Vendor and/or FTI and/or any Subsidiary
of FTI and/or any Vendor Sublicencee by the commercial exploitation of the
Technology in a manner that directly competes with the business currently
being conducted by the Purchaser;
|
|
(d)
|
"Confidential Information"
means trade secrets and other information not generally known to
the public that is owned by Purchaser or Vendor or by any entity
affiliated, associated or related to Purchaser or Vendor, or by any of
their respective suppliers, customers, or other business partners.
Confidential Information includes, without limitation, the Technology, any
enhancements, and all source code and related documentation, financial
information, legal, corporate, marketing, research, technical,
manufacturing, personnel, customer and supplier information and any other
information, in whatever form or media, specifically identified as
confidential by a party, or the nature of which is such that it would
generally be considered confidential in the industry in which that party
operates, or which that party is obligated to treat as confidential
property;
|
|
(e)
|
"Gamboozle" means
Gamboozle Media Inc., a wholly-owned subsidiary of the Purchaser
incorporated under the laws of the Province of British
Columbia;
|
|
(f)
|
"Licence
Agreement" has the meanin ascribed to it in the
recitals;
|
|
(g)
|
"IMI Shares" means
1,500,000 Common shares without par value (at a deemed price of $0.25 per
share equaling $375,000) in the capital of the
Purchaser;
|
|
(h)
|
"Person" means and
includes any individual, corporation, partnership, firm, joint venture,
syndicate, association, trust, government, governmental agency or board or
commission or authority, and any other form of entity or
organization;
|
|
(i)
|
"Purchase Price" has the
meaning ascribed to it in Section
2.2;
|
|
(j)
|
"Purchaser Sublicencee"
means any Person to whom the Purchaser, directly or indirectly,
grants a sub-licence to use the
Technology;
|
|
(k)
|
"Revenue Sharing Amount"
has the meaning ascribed to it in Section
4.1;
|
|
(l)
|
"Servers" means the
physical servers and hardware servers that currently host the Technology
specifically: Game Server 1: HP Proliant Server S/N: MX271603KH, Game
Server 2: HP Proliant Server S/N: MX271201KJ and Database
Server: Intel 2U Server S/N:
SR2500ALLXNA;
|
|
(m)
|
"Subsidiary" means a
corporation, company or other
entity:
|
|
(a)
|
more than
fifty percent (50%) of whose outstanding shares or securities
(representing the right to vote for the election of directors or other
managing authority) are, now or hereafter, owned or controlled, directly
or indirectly, by a party hereto, but such corporation, company or other
entity shall be deemed to be a Subsidiary only so long as such ownership
or control exists; or
|
|
(b)
|
which does
not have outstanding shares or securities, as may be the case in a
partnership, joint venture or unincorporated association, but more than
fifty percent (50%) of whose ownership interest representing the right to
make the decisions for such corporation, company or other entity is, now
or hereafter, owned or controlled, directly or indirectly, by a party
hereto, but such corporation, company or other entity shall be deemed to
be a Subsidiary only so long as such ownership or control
exists.
|
|
(n)
|
"Technology" has the
meaning ascribed to it in the
recitals;
|
|
(o)
|
"Technology Revenues"
means the gross revenues of the Purchaser and its Subsidiaries and any
Purchaser Sublicencee which are derived, directly or indirectly, from the
exploitation of the Technology by the Purchaser and/or its Subsidiaries
and/or any Purchaser Sublicencee;
|
|
(p)
|
"Territory" means
worldwide; and
|
|
(q)
|
"Vendor Sublicencee"
means any Person to whom the Vendor, directly or indirectly, grants a
sub-licence to use the Technology.
|
12.2 Interpretation of Certain
Terms. In this Agreement, unless the context otherwise
requires, words importing the singular include the plural and vice-versa, words
importing gender include all genders and the word "including" is not limiting
(whether or not non-limiting language is used with reference
thereto).
12.3 Sections and
Headings. The division of this Agreement into sections,
subsections and paragraphs and the insertion of headings are for reference
purposes only and shall not affect the interpretation of this
Agreement. Unless otherwise indicated, any reference herein to a
particular section, subsection, paragraph or Schedule refers to the section,
subsection, paragraph of or Schedule to this Agreement.
12.4 Currency. Unless
otherwise stated, all amounts referred to in this Agreement are stated and
payable in Canadian dollars.
12.5 Governing Law and Attornment.
This Agreement shall be governed by and construed in accordance with the laws of
the Province of British Columbia and the federal laws of Canada applicable
therein. Each party irrevocably consents to the non-exclusive
jurisdiction and venue of the courts located at Vancouver, British Columbia with
respect to any claim, action or proceeding arising out of or in connection with
this Agreement or the transactions contemplated hereby.
12.6 Schedules. The
following schedules are attached to this Agreement and form an integral part
hereof:
Schedule A –
Technology
|
13.
|
PURCHASE
AND SALE
|
13.1 Purchase and Sale of
Assets. On the terms and subject to the conditions hereof, the
Vendor agrees to sell, transfer and assign to the Purchaser or Gamboozle, and
the Purchaser agrees to purchase and accept from the Vendor, all of the right,
title and interest of the Vendor in and to:
|
(a)
|
the
Technology; and
|
|
(b)
|
the
Servers;
|
(together, the "Assets").
13.2 Purchase Price. The
price payable by the Purchaser to the Vendor for the Assets (the "Purchase Price") shall be paid
as follows:
|
(a)
|
The Purchaser
shall:
|
|
(a)
|
issue and
register the IMI Shares in the name of the Vendor effective as of the Time
of Closing; and
|
|
(b)
|
pay the
Vendor the Revenue Sharing Payments owing up to the time to time, pursuant
to the terms set out in Section 4 of this Agreement;
and
|
|
(c)
|
grant the
Technology License to the Vendor pursuant to the terms set out in Section
3 of this
Agreement;
|
or,
alternatively,
|
(b)
|
The Purchaser
shall:
|
|
(a)
|
pay the
Vendor, pursuant to the terms of the Licence Agreement, Revenue Sharing
Payments in the aggregate total amount of $1,100,000;
and
|
|
(b)
|
grant the
Technology License to the Vendor pursuant to the terms set out in Section
3 of this Agreement.
|
2.3 Greater
Certainty. For greater certainty, the Purchaser shall satisfy
the Purchase Price for the Assets by completing payment of the Purchase Price
pursuant to the terms of 2.2 (a) OR 2.2 (b).
2.4. Unassignable
Assets. If any of the Assets, or interest therein, is not
transferable or assignable by the Vendor to the Purchaser without the consent of
a third party and such consent is not obtained on or prior to the Time of
Closing, then the Vendor shall hold the same in trust for the Purchaser and
shall convey, assign and transfer such Assets, or such interest therein, as the
Purchaser may from time to time direct and shall execute and deliver such
further documents, transfers, assignments, assurances and instruments and do
such further acts and things as the Purchaser may reasonably request from time
to time to convey, assign and transfer such Assets, or such interest therein, to
the Purchaser.
|
14.
|
TECHNOLOGY
LICENCE
|
14.1 Grant of Licence. Subject to
the terms and conditions of this Agreement, the Purchaser hereby grants to the
Vendor a non-exclusive and perpetual licence within the Territory
to:
|
(a)
|
Commercially
exploit the Technology in any manner including but not limited
to using the Technology to conduct
business;
|
|
(b)
|
Grant
sub-licenses to others as may be required by the Vendor to commercially
exploit or otherwise use the Technology;
and
|
|
(c)
|
Use the
source code for the Technology to further improve, modify and enhance the
Technology (the "Technology
License").
|
14.2 Perpetual Term. For greater
certainty, the Technology License granted to the Vendor shall eternally remain
valid in notwithstanding any future circumstances or events including but not
limited to (i) the sale of the Technology by the Purchaser or (ii) the
winding-up, insolvency or bankruptcy of the Purchaser.
|
15.
|
REVENUE
SHARING
|
15.1 Revenue Sharing Agreement. The
Purchaser shall pay the Vendor (the "Revenue Sharing Payments"),
ten percent (10%) of the Technology Revenues, within thirty (30) days following
the receipt of any Technology Revenues by the Purchaser and/or its Subsidiaries
and/or any Purchaser Sublicencee, as the case may be. In any event,
the maximum aggregate total amount of the Revenue Sharing Payments, including
the amounts of any Revenue Sharing Payments made under the Licence Agreement,
shall be $725,000 (the "Revenue
Sharing Amount").
15.2 Limitation of Liability Not
Applicable. The limitation on the Purchaser's liability set
out in Section 8.3 of this Agreement shall not apply to any breach of the
Vendor's obligations, pursuant to Section 4.1 above, to pay the Revenue Sharing
Payments up to the Revenue Sharing Amount.
|
16.
|
REPRESENTATIONS
AND WARRANTIES OF VENDOR
|
The Vendor
represents and warrants to the Purchaser as follows, with the intent that the
Purchaser shall rely on these representations and warranties in entering into
this Agreement and in concluding the purchase and sale contemplated by this
Agreement.
16.1 Capacity to
Sell. The Vendor is a corporation duly incorporated, validly
existing and in good standing under the laws of the Province of British Columbia
and has the power and capacity to own and dispose of the Assets and to enter
into this Agreement and carry out its terms to the fullest extent.
16.2 Authority to Sell. The
execution and delivery of this Agreement and the completion of the transactions
contemplated by this Agreement have been duly and validly authorized by all
necessary corporate action on the part of the Vendor and, if required, approval
for such transaction has been received by the Vendor from the TSX Venture
Exchange, and this Agreement constitutes a legal, valid and binding obligation
of the Vendor enforceable against the Vendor in accordance with its terms except
as may be limited by laws of general application affecting the rights of
creditors.
16.3 Sale Shall Not Cause Default.
Neither the execution and delivery of this Agreement nor the completion
of the purchase and sale contemplated by this Agreement shall:
|
(a)
|
violate any
of the terms and provisions of the constating documents of the Vendor, or
any order, decree, statute, by-law, regulation, covenant or restriction
applicable to the Vendor or any of the
Assets;
|
|
(b)
|
give any
person the right to terminate or cancel any of the Assets;
or
|
|
(c)
|
result in any
fees, duties, taxes, assessments or other amounts relating to any of the
Assets becoming due or payable.
|
16.4 Assets. The Vendor
is the legal and beneficial owner of the Assets and has good marketable title to
the Assets and such Assets shall be transferred to the Purchaser free and clear
of any mortgages, liens, charges, pledges, restrictions, security interests,
encumbrances and other claims.
16.5 Litigation. There
is no litigation or administrative or governmental proceeding or enquiry
pending, or to the best knowledge of the Vendor, threatened against or relating
to the Vendor, or any of the Assets that, if determined adversely, would
prohibit the Vendor from performing its obligations under this Agreement, nor
does the Vendor know of any reasonable basis for any such action, proceeding or
inquiry.
16.6 Ilegal Use. The Vendor shall
not subject the Technology to illegal usage and shall obtain any required
governmental authorizations, approvals, licences, permits, certificates or
registrations to comply with the laws of any jurisdiction(s) that are applicable
to Vendor's business operations relating to the Technology.
16.7 Sub-Licencing. The Vendor
shall ensure that any sub-licensing of the Technology to customers or business
partners or trading partners of the Purchaser, will be subject to terms no less
materially protective of Vendor's rights relating to the Technology established
in this Agreement.
|
17.
|
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
|
The Purchaser
represents and warrants to the Vendor as follows, with the intent that the
Vendor shall rely on these representations and warranties in entering into this
Agreement, and in concluding the purchase and sale contemplated by this
Agreement.
17.1 Status of
Purchaser. The Purchaser is a corporation duly incorporated,
validly existing and in good standing under the laws of the Province of British
Columbia and, has the power and capacity to enter into this Agreement and carry
out its terms.
17.2 Authority to Purchase. The
execution and delivery of this Agreement and the completion of the transactions
contemplated by this Agreement have been duly and validly authorized by all
necessary corporate action on the part of the Purchaser, and this Agreement
constitutes a legal, valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms except as limited by laws of
general application affecting the rights of creditors.
17.3 Sale Shall Not Cause
Default. Neither the execution and delivery of this Agreement
nor the completion of the purchase and sale contemplated by this Agreement shall
violate any of the terms and provisions of the constating documents of the
Purchaser, or any order, decree, statute, by-law, regulation, covenant or
restriction applicable to the Purchaser.
17.4 IMI Shares. At the Time of
Closing the issued and outstanding shares in the capital of the Purchaser
consists solely of 14,812,157 Common shares not including the IMI Shares to
be issued pursuant to this Agreement. There are no options
outstanding or other securities outstanding, including securities convertible
into Common shares of the Purchaser.
17.5 Validity IMI
Shares. The
IMI Shares to be issued to the Vendor pursuant to this Agreement have been, duly
created and, when issued, delivered and paid for in full, will be validity
issued as fully paid Common shares of the Purchaser, and will not have been
issued in violation of or subject to any pre-emptive rights of contractual
rights to purchase securities issued by the Purchaser.
17.6 Ilegal Use. The Purshaser
shall not subject the Technology to illegal usage and shall obtain any required
governmental authorizations, approvals, licences, permits, certificates or
registrations to comply with the laws of any jurisdiction(s) that are applicable
to the Purchaser's business operations relating to the Technology.
17.7 Subsequent Sale of the
Technology. In any subsequent sale of the Technology by the Purchaser,
the Purchaser shall give notice to the subsequent purchaser of the Technology
Licence granted to the Vendor and make it a condition of any sale future sale of
the Technology that all subsequent purchasers respect and maintain the perpetual
Technology Licence granted to the Vendor pursuant to this
Agreement.
|
18.
|
COVENANTS
OF VENDOR AND FTI
|
18.1 Non-Competition Payments.
During the 36 month period following the date of this Agreement, the
Vendor shall pay the Purchaser an amount equal to ten percent (10%) of any
Competing Sale Revenues (a "Competing Sale Payment"),
within thirty (30) days following the receipt of such Competing Sale Revenues by
the Vendor or FTI or any Subsidiary of FTI or any Vendor Sublicencee, as the
case may be. In any event, the maximum aggregate amount of all Competing
Sale Payments made to the Purchaser shall not exceed $375,000.
18.2 Indemnity. The
Vendor and FTI shall, jointly and severally, indemnity and hold harmless the
Purchaser from any claims, damages, losses, costs or expenses (including without
limitation lawyer's fees) incurred by the Purchaser in connection with all
claims, suits, judgments and causes of action for (i) any misrepresentation,
breach or non-fulfillment of covenant on the part of the Vendor or FTI under
this Agreement; (ii) any injury, death or property damage arising from the
Vendor's negligence or misconduct in connection with Vendor's use, operation or
sub-licensing of the Technology or any portion thereof or (iii) claims made by
third parties against the Purchaser arising from or related to Vendor's use,
operation or sub-licensing of the Technology or any portion thereof. No remedy
herein conferred upon Purchaser is intended to be, nor shall it be construed to
be, exclusive of any other remedy provided herein or as allowed by law or in
equity, but all such remedies shall be cumulative.
18.3 No Warranty. The
Technology is provided under this Agreement on an "As Is" basis, without
warranty of any kind except for the express warranties set forth herein. The
Vendor disclaims all other warranties and conditions, either express or implied,
including but not limited to implied warranties or conditions of
merchantability, merchantable quality, fitness for a particular purpose,
durability, title and any other implied warranty or condition arising by statute
or custom or usage of trade. The Purchaser acknowledges that the Vendor is not
liable, for among other things, if the Technology does not meet the
requirements of Purchaser or if it does not operate free of errors,
uninterrupted or if the Technology does not function, for whatever reason, in
Purchaser's environment.
18.4 Limitation of Liability.
Except as otherwise expressly provided in this Agreement, the Vendor and
FTI's liability for claims, costs, losses, damages of any kind or any other
cause, including liability for any fundamental breach of this Agreement for
patent or copyright infringement and regardless of the form of action, shall not
exceed $50,000. In no event will Vendor or FTI be liable for special, indirect,
incidental or consequential damages which Purchaser may incur or experience on
account of entering into or relying upon this Agreement or by the use of or
possession of the Technology, even if the Vendor has been advised of the
possibility of such damages.
|
19.
|
COVENANTS
OF PURCHASER
|
19.1 Payment. The
Purchaser shall pay the Purchase Price to the Vendor on the terms and in the
manner set out in Section 2.2 of this Agreement.
19.2 Indemnity. The Purchaser shall
defend, indemnify, and forever hold harmless Vendor from any claims, damages,
losses, costs or expenses (including without limitation lawyer's fees) incurred
by Vendor in connection with all claims, suits, judgments and causes of action
for (i) any misrepresentation, breach or non-fulfillment of covenant on the part
of the Purchaser under this Agreement; (ii) any injury, death or property damage
arising from Purchaser's negligence or misconduct in connection with Purchaser's
use, operation or sub-licensing of the Technology or any portion thereof or
(iii) claims made by third parties against Vendor arising from or related to
Purchaser's use, operation or sub-licensing of the Technology or any portion
thereof. No remedy herein conferred upon Vendor is intended to be, nor shall it
be construed to be, exclusive of any other remedy provided herein or as allowed
by law or in equity, but all such remedies shall be cumulative.
19.3 Limitation of Liability.
Except as otherwise expressly provided in this Agreement, the Purchaser's
liability for claims, costs, losses, damages of any kind or any other cause,
including liability for any fundamental breach of this Agreement for patent or
copyright infringement and regardless of the form of action, shall not exceed
$50,000. In no event will the Purchaser be liable for special, indirect,
incidental or consequential damages which the Vendor may incur or experience on
account of entering into or relying upon this Agreement or by the use of or
possession of the Technology, even if the Purchaser has been advised of the
possibility of such damages.
19.4 No Hold Period. The
Purchaser shall make best efforts, including the addition of any necessary
prospectus language, to ensure that 300,000 of the IMI Shares, to be issued to
the Vendor pursuant to Section 2.2 (a), are not subject to any statutory or
regulatory hold period requirements.
|
20.
|
SURVIVAL
OF REPRESENTATIONS, WARRANTIES AND
COVENANTS
|
20.1 Vendor's Representations, Warranties
and Covenants. All representations, warranties, covenants and
agreements made by the Vendor in this Agreement or under this Agreement shall,
unless otherwise expressly stated, survive Closing and any investigation at any
time made by or on behalf of the Purchaser and shall continue in full force and
effect for the benefit of the Purchaser.
20.2 Purchaser's Representations,
Warranties and Covenants. All representations, warranties,
covenants and agreements made by the Purchaser in this Agreement or under this
Agreement shall, unless otherwise expressly stated, survive Closing and any
investigation at any time made by or on behalf of the Vendor, and shall continue
in full force and effect for the benefit of the Vendor.
|
21.
|
CONFIDENTIALITY
|
21.1 Acknowledgement of Significance.
Each party acknowledges that in connection with this Agreement, Purchaser
may disclose to Vendor or allow Vendor access to and Vendor may disclose to
Purchaser or allow Purchaser access to Confidential Information. Each
party further acknowledges that this information is of significant value to the
disclosing party.
21.2 No Rights Acquired. Vendor and
Purchaser each acknowledge and agree that they shall not acquire any right,
title or interest in or to any Confidential Information disclosed to it by the
other party pursuant to this Agreement.
21.3 Covenant of Non-disclosure.
During the term of this Agreement and thereafter, each party shall
maintain in strict confidence all Confidential Information disclosed to it by
the other party, or to which it obtains access as a result of this Agreement.
Notwithstanding the foregoing, to the extent the receiving party can establish
it is required by law to disclose any Confidential Information provided to it by
the other party, it shall be permitted to do so, provided that notice of the
requirement to disclose is first delivered to the disclosing party so that the
disclosing party may contest this potential disclosure.
21.4 Exceptions. The non-disclosure
obligations under this Agreement shall not apply to Confidential Information
which the receiving party can establish:
|
(a)
|
Is or becomes
readily available to the public other than through a breach of this
Agreement;
|
|
(b)
|
Is disclosed,
lawfully and not in breach of any contractual or other legal obligation,
to it by a third party; or
|
|
(c)
|
Through
written records, was known to it or developed by it, prior to the date of
first disclosure of the Confidential Information under this
Agreement.
|
|
22.
|
DELIVERY,
NO ADDITIONAL SERVICES &
CO-OPERATION
|
22.1 Vendor Deliveries. Vendor
shall deliver to Purchaser, within 10 business days of the date of the Agreement
(the "Delivery
Date"):
|
(a)
|
Copy of the
compiled/executable code
the Technology;
|
|
(b)
|
Copy of the
source code of the Technology
|
|
(c)
|
Other
technical information relating to the
Technology;
|
|
(d)
|
Copies of
user manuals and any other documentation relating to the use and operation
of the Technology; and
|
|
(e)
|
The
Servers.
|
22.2 No Strict Enforement of Delivery
Date. The Vendor shall use commercially reasonable efforts to meet the
Delivery Date, but does not represent or warrant that this Delivery Date will be
met. Notwithstanding any other provision in this Agreement, under no
circumstances shall Vendor be liable for any delay in delivery of any component
of the Assets.
22.3 No Additional Services.
Purchaser agrees that there are to be no training, maintenance,
programming or any other services to be provided under this Agreement by Vendor
in relation to the Technology, including, without limitation, any services in
relation to any errors, malfunctions, bugs or defects which may arise during the
term of this Agreement, except where these services are rendered through any
further written agreement between the parties and, in that case, at a fee to be
agreed upon at the time the further written agreement may be entered
into.
22.4 Further Co-operation. Vendor
and Purchaser covenant with each other to co-operate in all reasonable ways in a
prompt and timely fashion in the prosecution of any infringement suit by the
Vendor or Purchaser and in any defence of any action, suit or proceeding
instituted for the impeachment of or for a declaration of infringement of the
Technology. All costs and expenses incurred in investigating, resisting,
litigating and settling such a complaint, including payment of any award of
damages and/or costs to any third party, shall be borne by the party incurring
the expense or cost.
22.5 Improvements to Technology.
Any improvements, modifications, or changes to the source code of the
Technology made by either the Vendor or Purchaser following the completion of
the sale of the Technology pursuant to this Agreement will remain the individual
and sole exclusive property of the party that makes such improvements,
modifications or other changes.
|
23.
|
GENERAL
PROVISIONS
|
23.1 Entire
Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes any previous or contemporaneous oral or written agreement,
negotiation, representation or understanding among the parties regarding such
subject matter.
23.2 Waiver and
Consent. No consent or waiver, express or implied, by any
party to or of any breach or default by another party of any or all of its
obligations under this Agreement shall be effective unless it is in writing, nor
shall it eliminate or modify the need for a specific consent or waiver in any
other or subsequent instance.
23.3 Amendments. This
Agreement may not be amended except by written agreement among all the
parties.
23.4 Assignment. No
party to this Agreement may assign any of its rights or obligations under this
Agreement without the prior written consent of the other parties hereto except
that the Purchaser may assign the Technology to Gamboozle.
23.5 Binding
Effect. This Agreement shall enure to the benefit of and be
binding upon the parties and their respective successors and permitted
assigns.
23.6 Time of
Essence. Time shall be of the essence of this
Agreement.
23.7 Further
Assurances. Prior to, on and following the Time of Closing,
each of the parties agrees that it shall act in good faith with respect to the
satisfaction of its obligations under this Agreement, and, at the reasonable
request of another party, shall, at its own expense, take such actions and do
such things and, as the case may be, execute and deliver or furnish such
additional agreements, documents and instruments as may, from time to time, be
necessary or reasonably desirable to better effectuate the transactions
contemplated by this Agreement.
23.8 Notices. Every
notice, request, demand or communication required or permitted to be given under
this Agreement shall be in writing and delivered by hand or facsimile
transmission to the party which it is to be given as follows:
To the Vendor or
FTI:
Fireswirl
Technologies Inc.
▇▇▇▇▇ ▇▇▇, ▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
▇▇, ▇▇▇ ▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
With a copy
to:
Sangra Moller
LLP
Barristers &
Solicitors
#1000 – ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇
Tel: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
To the Purchaser
at:
Suite 2320 Harbour
Centre
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇
Tel: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
With a copy
to:
▇▇▇▇▇▇▇▇▇▇ O'▇▇▇▇▇▇
▇▇▇▇▇ LLP
▇▇▇▇ - ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇
▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇
Tel: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
or to such other
address or facsimile number as is specified by a party by notice to the other
party given in accordance with this subsection. Any such notice, demand, request
or direction shall be deemed to have been given and received if delivered, on
the next business day after the day of delivery, and if sent by facsimile
transmission, on the first business day after the day of
transmittal.
23.9 Announcements. The
parties shall consult with each other before issuing any press release or making
any other public announcement with respect to this Agreement or the transactions
contemplated hereby and, except as required by any applicable law or regulatory
requirement, neither the Vendor nor the Purchaser shall issue any such press
release or make any such public announcement without the prior written consent
of the other, which consent shall not be unreasonably withheld or
delayed.
23.10 Performance on
Holidays. If any action is required to be taken pursuant to
this Agreement on or by a specified date which is not a business day, then such
action shall be valid if taken on or by the next succeeding business
day.
23.11 Counterparts. This
Agreement may be executed in counterparts and by facsimile, each of which shall
constitute an original and all of which taken together shall constitute one and
the same instrument.
IN WITNESS WHEREOF the parties
hereto have duly executed this Agreement as of the day and year first written
above.
|
FIRESWIRL
TECHNOLOGIES INC.
By:
Name:
Title:
|
|
|
FIRESWIRL
SYSTEMS INC.
By:
Name:
Title:
|
|
|
By:
Name:
Title:
|
Schedule
A
Technology
|
F.
|
Online
Casino Suite Games Software,
including:
|
|
9.
|
Slots
|
|
10.
|
Video
Poker
|
|
11.
|
Blackjack
|
|
12.
|
Baccarat
|
|
13.
|
Sicbo
|
|
14.
|
Roulette
|
|
15.
|
Red
Dog
|
|
16.
|
Craps
|
|
G.
|
Online
Multiplayer Poker Games Software,
including:
|
|
8.
|
Texas Hold'em
Ring Games
|
|
9.
|
Texas Hold'em
Sit n' Go Tournament Games
|
|
10.
|
Texas Hold'em
Multi-Table Tournament Games
|
|
11.
|
Texas Hold'em
'Flash' Based Game Client
|
|
12.
|
Omaha Hi/Lo
Games
|
|
13.
|
7-Card Stud
Game
|
|
14.
|
General C++
Based Game Client
|
|
H.
|
Chipsnchat
|
|
1.
|
"Chipsnchat"
membership database at its current
state
|
|
2.
|
URL
▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
|
3.
|
Any existing
Integrations into social networks ▇▇▇▇▇▇▇▇.▇▇▇, ▇▇▇▇▇▇▇.▇▇▇ and
▇▇▇▇▇.▇▇▇
|
|
I.
|
All manuals,
publications, technical documentation, user documentation and other
related materials pertaining to the
Technology
|
|
J.
|
All source
code and user guides associated with the
Technology.
|
SCHEDULE
C
POOLING
AGREEMENT
(see
attached)