Exclusive License Agreement - Shuffle Master Inc., Progressive Games Inc. and Mikohn Gaming Corp.
EXCLUSIVE LICENSE AGREEMENT
THIS AGREEMENT is entered into as of the 28th day of December, 1999
(the "Effective Date"), by and between SHUFFLE MASTER, INC., a Minnesota
corporation ("LICENSOR") and PROGRESSIVE GAMES, INC., a Delaware corporation and
MIKOHN GAMING CORPORATION, a Nevada corporation (collectively "LICENSEE").
W I T N E S S E T H:
WHEREAS, LICENSEE desires a license of certain trademarks, copyrights
and related intellectual property concerning the live casino table card game
known as Bahama Bonus owned or held by LICENSOR; and
WHEREAS, LICENSOR desires to grant such license on the terms and
conditions set forth herein.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and conditions
set forth below and other good and valuable consideration, the receipt and
sufficiency of which all parties acknowledge, it is agreed as follows:
1 DEFINITIONS.
For the purposes of this Agreement, the terms set forth below shall be
defined as follows:
1.1 "Affiliate" shall mean a parent, subsidiary or other entity owned
or controlled by LICENSOR or LICENSEE as the case may be.
1.2
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1.3 "Game" shall mean a live casino table card game.
1.4
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1.5
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1.6 "LIRB License Agreement" shall mean that certain Non-Exclusive
License Agreement of even date hereof by and between Progressive Games, Inc., as
Licensor, and Shuffle Master, Inc., as Licensee, which is attached as Exhibit 4
to that certain Settlement Agreement of even date hereof by and between
Progressive Games, Inc., Mikohn Gaming Corporation and Shuffle Master, Inc.
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1.7 "Notice of Dispute" shall have the meaning ascribed in Section
12.2.1.
1.8 "Notice to Arbitrate" shall have the meaning ascribed in Section
12.2.2.
1.9 "Offer" shall mean promote, market, lease, sell or otherwise make
available for use.
1.10 "Other Intellectual Property" shall mean all intellectual property
of LICENSOR of every nature and kind except the Intellectual Property.
1.11 "Person" shall mean an individual, corporation, partnership or
other entity.
1.12 "Product Line" shall have the meaning ascribed in Section 9 below.
1.13 "Royalty" shall have the meaning ascribed in Section 4 below.
1.14 "Territory" shall mean the entire world except for the state of
Nevada.
2 LICENSE GRANT.
Subject to the terms, conditions and limitations herein, LICENSOR
hereby grants LICENSEE an exclusive license to make, have made, install,
service, license, offer to lease and lease the Licensed Product in the
Territory.
3 LIMITATIONS.
3.1
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3.2
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3.3
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3.4
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3.5 The license granted in this Agreement creates no license, express
or implied, to any Other Intellectual Property.
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4
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5 WARRANTY; ENFORCEMENT.
5.1 LICENSOR warrants as follows:
5.1.1 LICENSOR is a corporation duly organized and existing
under the laws of Minnesota.
5.1.2 LICENSOR has the corporate power and authority to
execute, deliver and perform this Agreement. Such execution, delivery and
performance have been duly authorized by all necessary action on the part of
LICENSOR, do not and will not require the approval of the shareholders of
LICENSOR and do not and will not contravene the Certificate of Incorporation or
By-Laws of LICENSOR.
5.1.3 The execution, delivery and performance of this
Agreement by LICENSOR will not result in any violation by LICENSOR of any law,
rule or regulation applicable to LICENSOR. LICENSOR is not a party to, or
subject to or bound by, any agreement, judgment, injunction or decree of any
court or governmental authority which may restrict or interfere with the
performance of this Agreement. This Agreement is a valid and binding obligation
of LICENSOR enforceable in accordance with its terms.
5.1.4 LICENSOR has no knowledge of any present condition or
contingency which LICENSOR can reasonably expect may adversely affect its
ability to perform its obligations under this Agreement.
5.2
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6 TERM AND TERMINATION.
6.1
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6.2
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6.2.1
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6.2.2
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6.2.3
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6.3
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6.4
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6.5
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6.6 All remedies provided in this Agreement are cumulative and not
exclusive and may be exercised in conjunction with any other remedies a party
may have in law or equity.
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8 INDEMNITY BY LICENSEE.
8.1 Subject to the provisions of Sections 5.2, LICENSEE shall
indemnify, defend, and hold harmless LICENSOR, its officers, directors,
employees and agents, from and against any and all claims, suits, losses
damages, costs, fees, and expenses (including attorneys' fees) resulting from or
arising out of the use of the Intellectual Property by LICENSEE, its customers,
agents, or employees, or the negligence or misconduct of LICENSEE in performance
of its obligations under this Agreement.
8.2 LICENSEE's obligations, set forth in this Section, shall survive
the termination of this Agreement.
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9.1
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9.2
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10 RELATIONSHIP OF PARTIES.
The relationship between LICENSOR and LICENSEE is that of independent
contractors. Neither party, nor its agents and employees, shall under any
circumstances be deemed an agent or representative of the other and neither
shall have authority to act for and/or bind the other in any way, or represent
that it is in any way responsible for acts of the other. This Agreement does not
establish a joint venture, agency or partnership between the parties.
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11 CONFIDENTIALITY.
The terms of this Agreement and all negotiaitons concerning this
Agreement are confidential and shall not be disclosed to any other person or
entity not a party to this Agreement unless required by law or regulatory
authority.
12 GENERAL PROVISIONS.
12.1 Notice. Any notice, request, demand, or other communication that
is required or permitted under this Agreement shall be deemed properly given if
it is deposited in the U.S. mail, certified, return receipt requested, postage
prepaid, properly addressed as follows:
12.1.1 If to LICENSOR:
Shuffle Master, Inc.
1106 Palms Airport Drive
Las Vegas, Nevada 89119
Attention: President
With a copy to:
Shuffle Master, Inc.
1106 Palms Airport Drive
Las Vegas, Nevada 89119
Attention: General Counsel
12.1.2 If to LICENSEE:
Mikohn Gaming Corporation
1045 Palms Airport Drive
Las Vegas, Nevada 89119
Attention: President
With a copy to:
Mikohn Gaming Corporation
1045 Palms Airport Drive
Las Vegas, Nevada 89119
Attention: General Counsel
12.2 Dispute Resolution. Any disputes that may arise under or
concerning this
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Agreement, including but not limited to any dispute concerning the
enforceability or interpretation of any provision herein, shall be resolved as
follows:
12.2.1 If a dispute arises under this Agreement, any party may
give written notice to the other that it desires to meet in person to attempt to
resolve the dispute ("Notice of Dispute"). Within thirty (30) days after service
of a Notice of Dispute, appropriate representatives of the parties shall meet in
person and attempt in good faith to resolve the dispute.
12.2.2 If the parties fail to reach a resolution of a dispute
within thirty (30) days after service of the Notice of Dispute, either party may
request arbitration. Such request shall be in writing, served on the other party
in accordance with the provisions of Section 12.1 and shall designate an
arbitrator ("Notice to Arbitrate").
12.2.3 The Notice to Arbitrate must set forth verbatim all of
the provisions of this Section 12.2 or it shall not be deemed effective.
12.2.4 Within ten (10) days after receipt of the Notice to
Arbitrate, the receiving party shall designate a second arbitrator. If a second
arbitrator is not timely designated, the dispute shall be submitted to the first
arbitrator for resolution. Within 10 days after the appointment of the second
arbitrator, the two arbitrators shall select a third arbitrator. If the two
arbitrators cannot agree on a third arbitrator, either party may commence
proceedings before the American Arbitration Association to appoint the third
arbitrator. Upon the appointment of the third arbitrator, the arbitration panel
shall be deemed duly constituted.
12.2.5 Once a panel of arbitrators is constituted, the panel
shall be required to render a final decision resolving the dispute within 60
days.
12.2.6 The arbitration panel shall be required to award the
prevailing party its costs and attorneys fees.
12.3 Governing Law. This Agreement shall be governed by the and
construed in accordance with the substantive law of the state of Nevada, without
giving effect to any conflicts or choice of laws principles that otherwise might
be applicable.
12.4 Forum Designation. Any action brought by either party against the
other party for claims arising out of this Agreement shall be brought in a court
of competent jurisdiction in the State of Nevada.
12.5 Divisibility. If any provision of this Agreement is found to be
prohibited by law and invalid, or for any other reason if any provision is held
to be unenforceable, in whole or in part, such provision shall be ineffective to
the extent of the prohibition or unenforceability without invalidating or having
any other adverse effect upon any other provision of this Agreement.
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12.6 Entire Agreement. This Agreement, including the documents and the
instruments referred to herein and attached hereto, constitutes the entire
agreement between the parties relating to its subject matter and supersedes all
prior or contemporaneous negotiations or agreements, whether oral or written,
relating to the subject matter hereof. No extension, modification or amendment
of this Agreement shall be binding upon a party unless such extension,
modification or amendment is set forth in a written instrument, which is
executed and delivered on behalf of such party.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, including the Exhibits attached hereto and incorporated herein by
reference, as of the date first written above.
SHUFFLE MASTER, INC. MIKOHN GAMING CORPORATION
By: /s/ Mark L. Yoseloff By: /s/ Charles H. McCrea, Jr.
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Its: Exec. V. Pres. Its: Ex. V.P. & Secretary
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PROGRESSIVE GAMES, INC.
By: /s/ Charles H. McCrea, Jr.
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Its: Ex. V.P. & Secretary
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