PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT, dated this 25th day of June, 1996 (this
"Agreement"), by and among each of the MMG Parties, each of the Xxxxx Parties
and the Venture (as these and certain other capitalized terms used herein are
defined in Article I hereof),
W I T N E S S E T H:
WHEREAS, on June 28, 1995, TVG and AGNI entered into the Joint Venture
Agreement for the purpose of forming the AGNJV to own and operate the TV
MegaBingo Business, the AGN Xxxxxxx Xxxx Bingo Business, the AGN On-Line
Services and the AGN Web Site and to conduct other activities related thereto;
WHEREAS, in connection with the Joint Venture Agreement, (i) MMG issued
to Xxxxx a warrant (the "Initial Warrant") to purchase 175,000 shares of MMG's
Common Stock, $.01 par value, at an exercise price of $2.50 per share, and (ii)
Xxxxx, AGNI, MMG and TVG entered into the Technology Transfer Agreement,
pursuant to which MMG and TVG sold to Xxxxx a one-third interest in the TV
MegaBingo Business Intellectual Property in consideration of the delivery to MMG
of the Xxxxx IP Purchase Note;
WHEREAS, in connection with the Joint Venture Agreement, Xxxxx, AGNI,
MMG and TVG entered into the Side Letter Agreement as later amended by the
Amendment to Side Letter Agreement, pursuant to which (i) MMG sold 100,000
shares of its Common Stock to Xxxxx at $2.75 per share in consideration of the
delivery to MMG of the Xxxxx Stock Purchase Note, (ii) the terms of the Initial
Warrant were amended to reduce the exercise price to $2.25 per share, and (iii)
Xxxxx agreed to (and did) exercise the Initial Warrant (as so amended) and MMG
issued to Xxxxx (A) the Replacement Warrant, and (B) the 175,000 shares of the
Company's Common Stock issuable upon exercise of the Initial Warrant (such
175,000 shares of Common Stock together with the 100,000 shares of Common Stock
referred to in clause (i) of this WHEREAS paragraph, being herein collectively
called the "MMG Shares");
WHEREAS, subject to the terms of the Joint Venture Agreement, (i) AGNI
agreed to provide financing to the Venture which AGNI discontinued doing in
December 1995, (ii) since December 1995, MMG has advanced $336,000 to the
Venture which is evidenced by the Venture Note;
WHEREAS, pursuant to the December Agreement, MMG accepted the Xxxxx XX
Note as the final payment due by Xxxxx pursuant to Section 1.5 of the Joint
Venture Agreement;
WHEREAS, the parties hereto desire to terminate any and all interests
of Xxxxx and AGNI in the Venture and, in connection therewith, Newco (or its
Permitted Designee) has agreed to purchase all of AGNI's right, title and
interest in the AGNI Venture Interest, and AGNI has agreed to sell its AGNI
Venture Interest to Newco (or its Permitted Designee), upon the terms and
subject to the conditions hereinafter set forth; and
WHEREAS, MMG (or its Permitted Designee) desires to purchase all of the
MMG Shares from Xxxxx and Xxxxx desires to sell all the MMG Shares to MMG (or
its Permitted Designee), upon the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
1.1 For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
"Accounts" shall mean all accounts and other rights of AGNI to receive
payments or distributions from the Venture.
"Additional Products" shall mean as such term is defined in the Joint
Venture Agreement.
"Affiliate" shall have the meaning prescribed by Rule 12b-2 of the
regulations promulgated pursuant to the Securities Exchange Act of 1934, as
amended.
"AGN Xxxxxxx Xxxx Bingo Business" shall mean as such term is defined in
the Joint Venture Agreement.
"AGNI" shall mean American Gaming Network, Inc., a Delaware corporation
wholly owned by CVS.
"AGNJV" or the "Venture" shall mean American Gaming Network, JV, a
joint venture formed pursuant to the general partnership laws of the State of
New York comprised of TVG and AGNI, as Venturers.
"AGN On-Line Services" shall mean as such term is defined in the Joint
Venture Agreement.
"AGN Web Site" shall mean as such term is defined in the Joint Venture
Agreement.
"AGNI Venture Interest" shall mean all right, title and interest owned
by AGNI in or related to the Venture, including without limitation, all Contract
Rights, all Accounts and all Intellectual Property.
"Amendment to Side Letter Agreement" shall mean the Letter Agreement,
dated September 26, 1995, by and among Xxxxx, AGNI, MMG and TVG that amends the
Side Letter Agreement.
"Business Day" shall mean any day other than Saturday, Sunday, Federal
holiday or day on which the banks in New York are required or permitted by law
to be closed.
"Claim" shall mean any demand, claim, action or cause of action based
on any Loss.
"Closing" shall mean the closing referred to in Section 4.01 of this
Agreement.
"Commercial Efforts" shall mean such efforts as shall not require the
performing party (i) to do any act that is unreasonable under the circumstances,
(ii) to make any capital contribution not expressly contemplated hereunder,
(iii) to amend or waive any rights under this Agreement, or (iv) to incur or
expend any funds other than reasonable out-of-pocket expenses incurred in
satisfying its obligation hereunder, including the fees, expenses and
disbursements of accountants, counsel and other professionals.
"Contract Rights" shall mean all right, title and interest of the Xxxxx
Parties in and to all contracts, arrangements and agreements relating to the
Venture Business, including without limitation the Joint Venture Agreement, the
Technology Transfer Agreement, the Side Letter Agreement and the December
Agreement; provided that, "Contract Rights" shall not include (i) the rights of
Xxxxx under the Replacement Warrants, (ii) the rights of Xxxxx under the
Registration Rights Agreement, (iii) the rights of Xxxxx, CVS and AGNI under and
pursuant to this Agreement, and (iv) the rights of Xxxxx under each of the
Xxxxxx Guaranty, the MMG Guaranty and the Venture Guaranty (each of the rights
referred to in the foregoing clauses (i) through (iv) being herein called the
"Retained Contract Rights").
"CVS" shall mean Cable Video Store, Inc., a Delaware corporation wholly
owned by Xxxxx.
"December Agreement" shall mean the Letter Agreement, dated December
11, 1995, by and among MMG, TVG, AGNI and Xxxxx.
"GPPV-Developed Products" shall mean as such term is defined in the
Joint Venture Agreement.
"Xxxxx" shall mean Xxxxx Pay-Per-View Inc., a Delaware corporation.
"Xxxxx IP Purchase Note" shall mean the promissory note of Xxxxx in the
principal amount of $500,000.00 payable to MMG and/or TVG, and issued pursuant
to the Technology Transfer Agreement.
"Xxxxx XX Note" shall mean the promissory note of Xxxxx payable to MMG
in the principal amount of $75,000.00 and delivered by Xxxxx pursuant to the
December Agreement.
"Xxxxx Parties" shall mean, individually and collectively as the
context requires Xxxxx, AGNI and CVS.
"Xxxxx Stock Purchase Note" shall mean the promissory note of Xxxxx
payable to MMG in the original principal amount of $275,000.00 of which
$75,000.00 principal amount has been paid as of the date of this Agreement.
"Xxxxxx Guaranty" shall mean the Guaranty (Xxxxxx) of Xxxxxx Xxxxxx, to
be dated the Closing Date, in substantially the form attached hereto as Exhibit
E.
"Intellectual Property" shall mean:
(i) all of the intellectual property acquired by any Xxxxx Party from
MMG or TVG pursuant to the LOI, the Joint Venture Agreement and the Technology
Transfer Agreement, including without limitation, all property and assets listed
in paragraphs 1 and 2 of Schedule C to the Joint Venture Agreement, in each case
to the extent the same has not been effectively transferred and contributed by
the Xxxxx Parties to the Venture: and
(ii) all right, title and interest of AGNI in and to the name "American
Gaming Network, Inc.", and any and all derivations thereof (including all trade
names, trade name licenses and applications, if any, related thereto).
"Joint Venture Agreement" shall mean the Joint Venture Agreement, dated
June __, 1995, by and among AGNI and TVG.
"Lien" shall mean any mortgage, pledge, security interest, lien,
charge, encumbrance, equity, claim, option, tenancy, right or restriction on
transfer of any nature whatsoever.
"LOI" shall mean the letter of understanding dated March 15, 1995,
between Xxxxx and MMG.
"Loss" shall mean any loss, damage, liability, cost, assessment and
expense including, without limitation, any interest, fine, court cost and
reasonable investigation cost, penalty and attorneys' and expert witnesses'
fees, disbursements and expenses, after taking into account any insurance
proceeds actually received by or paid on behalf of any party incurring a Loss
which are not required to be remitted by such party to the other party pursuant
to the terms hereof.
"MMG" shall mean Multimedia Games, Inc., a Texas corporation.
"MMG Guaranty" shall mean the Guaranty (MMG) of MMG, to be dated the
Closing Date, in substantially the form attached hereto as Exhibit F.
"MMG Retained Contract Rights" shall mean (i) the rights of MMG under
the Replacement Warrants, (ii) the rights of MMG under the Registration Rights
Agreement, (iii) the rights of the MMG Parties under and pursuant to this
Agreement, (iv) the rights of Xxxxxx Xxxxxx under the Xxxxxx Guaranty, (v) the
rights of MMG under the MMG Guaranty, and (vi) the rights of AGNJV under the
Venture Guaranty.
"MMG Parties" shall mean, individually and collectively as the context
requires, MMG, TVG and Newco.
"Newco" shall mean AGN Venturer L.L.C., a Delaware limited liability
company wholly owned by TVG.
"Off-Reservation Bingo Play" shall mean as such term is defined in the
Joint Venture Agreement.
"Person" shall mean an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization, a governmental entity or
any other entity.
"Products" shall mean as such term is defined in the Joint Venture
Agreement.
"Registration Rights Agreement" shall mean in this Agreement and for
purposes of Section 9 of the Replacement Warrant, the Registration Rights
Agreement between MMG and Xxxxx in substantially the form attached hereto as
Exhibit C.
"Replacement Warrant" shall mean the Warrant Certificate (No. W-43),
dated July 31, 1995, issued by MMG to Xxxxx evidencing the right of Xxxxx to
purchase 175,000 shares of MMG's Common Stock at a purchase price of $3.50 per
share.
"Side Letter Agreement" shall mean the Letter Agreement, dated June 28,
1995, by and among Xxxxx, AGNI, MMG and TVG.
"Technology Transfer Agreement" shall mean the agreement so captioned
by and among Xxxxx, AGNI, MMG and TVG entered into simultaneously with the Joint
Venture Agreement.
"TVG" shall mean TV Games Inc., a Texas corporation wholly owned by
MMG.
"TV MegaBingo Business" shall mean as such term is defined in the Joint
Venture Agreement.
"TV MegaBingo Business Intellectual Property" shall mean as such term
is defined in the technology Transfer Agreement.
"Venture Business" shall mean all business and activities conducted or
contemplated to be conducted by the Venturers pursuant to the Joint Venture
Agreement, including without limitation owning and operating the TV MegaBingo
Business, the AGN Xxxxxxx Xxxx Bingo Business, the AGN On-Line Services, and the
AGN Web Site.
"Venture Guaranty" shall mean the Guaranty (Venture) of AGNJV, to be
dated the Closing Date, in substantially the form attached hereto as Exhibit F.
"Venture Note" shall mean the promissory note of the Venture to MMG in
the principal amount of $336,000 which evidences all advances to the Venture
made by MMG and TVG since December 1, 1995, to the Closing Date.
1.2 Plurals; Etc. As used herein, the plural form of any noun shall
include the singular and the singular shall include the plural, unless the
context otherwise requires. Each of the masculine, neuter and feminine forms of
any pronoun shall include all such forms unless the context otherwise requires.
ARTICLE II
PURCHASE AND SALE OF AGNI VENTURE INTEREST
2.1 Purchase and Sale. Upon the terms and subject to the conditions of
this Agreement, at the Closing Newco (which for purposes of this Article II
shall include its Permitted Designee) will purchase the AGNI Venture Interest
from AGNI and AGNI will sell all of its right, title and interest in the AGNI
Venture Interest to Newco, free and clear of all Liens.
2.2 Purchase Price. In consideration of Xxxxx'x and AGNI's
performance of this Agreement and the sale of the AGNI Venture Interest, at
the Closing:
(a) Newco will deliver to AGNI the promissory note of Newco in
the principal amount of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) in
substantially the form attached hereto as Exhibit A (the "Newco A Note"); and
(b) Newco will deliver to AGNI the promissory note of Newco in
the principal amount of FOUR HUNDRED THOUSAND DOLLARS ($400,000.00) in
substantially the form attached hereto as Exhibit B (the "Newco B Note").
ARTICLE III
PURCHASE AND SALE OF MMG SHARES
3.1 Purchase and Sale. Upon the terms and subject to the conditions of
this Agreement, at the Closing MMG (which for purposes of this Article III shall
include its Permitted Designee) will purchase the MMG Shares from Xxxxx and
Xxxxx will sell all right, title and interest in the MMG Shares to MMG, free and
clear of a 11 Liens.
3.2 Purchase Price. In consideration of the sale of the MMG
Shares, at the Closing:
(a) MMG will deliver to Xxxxx the Xxxxx Stock Purchase Note
marked "canceled" and thereupon the Xxxxx Stock Purchase Note shall be of no
further force or effect and Xxxxx shall have no obligation or liability
thereunder including, without limitation, any obligation to pay principal or
accrued interest thereon; and
(b) MMG will deliver to Xxxxx the Xxxxx IP Purchase Note and
the Xxxxx XX Note, each marked "canceled" and thereupon each of the Xxxxx IP
Purchase Note and the Xxxxx XX Note shall be of no further force or effect and
Xxxxx shall have no obligation or liability thereunder including, without
limitation, any obligation to pay principal or accrued interest thereon.
(c) Notwithstanding the foregoing, MMG may, at its sole
option, direct Xxxxx to sell the MMG Shares to a Permitted Designee for such
consideration (whether in cash or property, or both) as MMG may direct. In such
event:
(i) Xxxxx agrees to sell the MMG Shares to such
Permitted Designee for such consideration and to deliver such
consideration to MMG in the same form and amount as received
by Xxxxx, without recourse to Xxxxx and without any
representation or warranty of Xxxxx other than as to Xxxxx'x
own actions; and
(ii) MMG agrees to accept such consideration in the
form delivered by Xxxxx and, in consideration thereof, to
deliver to Xxxxx each of the Xxxxx Stock Purchase Note, the
Xxxxx IP Purchase Note and the Xxxxx XX Note, each marked
"canceled" and thereupon each of the Xxxxx Stock Purchase
Note, the Xxxxx IP Purchase Note and the Xxxxx XX Note shall
be of no further force or effect and Xxxxx shall have no
obligation or liability thereunder including, without
limitation, any obligation to pay principal or accrued
interest thereon.
ARTICLE IV
CLOSING
4.1 Closing. Subject to Section 9.01 hereof, the Closing of the sale
and purchase of the AGNI Venture Interest and the MMG Shares hereunder shall
take place at 10:00 A.M., on the second business day following the receipt by
the Xxxxx Parties of the consent referred to in Section 8.2(d) hereof, or at
such other date and time as the parties hereto may mutually agree. The Closing
shall be conducted by the mutual exchange of documents and instruments delivered
at the respective offices of the parties by overnight courier.
4.2 Deliveries at Closing.
(a) At the Closing, MMG or Newco (or their respective
Permitted Designees), as appropriate, shall deliver or cause to be delivered the
following:
(i) the Newco A Note to AGNI;
(ii) the Newco B Note to AGNI;
(iii) the Xxxxx IP Note marked "canceled" to Xxxxx;
(iv) the Xxxxx Stock Purchase Note marked "canceled"
to Xxxxx;
(v) the Xxxxx XX Note marked "canceled" to Xxxxx;
(vi) the Registration Rights Agreement to Xxxxx;
(vii) the MMG Guaranty to Xxxxx;
(viii) the Xxxxxx Guaranty to Xxxxx;
(ix) the Venture Guaranty to Xxxxx; and
(x) such other documents and instruments as
reasonably may be requested by Xxxxx not less than five
Business Days prior to the Closing.
(b) At the Closing, Xxxxx or AGNI, as appropriate,
shall deliver or cause to be delivered the following:
(i) a certificate or certificates evidencing the
MMG Shares to MMG (or its Permitted Designee);
(ii) in the event Section 3.02(c) of this Agreement
is applicable, such consideration as was received by Xxxxx
from such Permitted Designee;
(iii) an assignment of the AGNI Venture Interest, in
substantially the form attached hereto as Exhibit D, to Newco
(or its Permitted Designee);
(iv) evidence of the satisfaction of the condition
set forth in Section 8.2(d); and
(v) such other documents and instruments as
reasonably may be requested by MMG not less than five Business
Days prior to the Closing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF XXXXX PARTIES
Each Xxxxx Party hereby represents and warrants, jointly and severally,
to each MMG Party and the Venture as follows:
5.1 Organization; Qualification; Authority. Each Xxxxx Party is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and each has the power and authority to make, execute,
deliver and perform this Agreement and to incur and perform the obligations
provided for herein, all of which have been duly authorized by all necessary and
proper corporate action, including shareholder action. Neither the execution,
delivery and performance of this Agreement by any Xxxxx Party nor the
consummation by any Xxxxx Party of the transactions contemplated hereby conflict
with or will result in any breach or default of any provision of the Certificate
of Incorporation or Bylaws of any Xxxxx Party. This Agreement has been duly and
validly executed and delivered by the duly authorized officers of each Xxxxx
Party and constitutes the valid, legally binding and enforceable obligations of
each Xxxxx Party in accordance with the terms of this Agreement.
5.2 Consents and Approvals; No Violation. Neither the execution,
delivery and performance of this Agreement by any Xxxxx Party (a) requires any
consent, approval, authorization or permit of, or filing with or notification
to, any Person including any governmental or regulatory authority; (b)
constitutes a breach or will result in a default under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, agreement or other instrument or obligation of any kind to which any
Xxxxx Party is a party or by which any Xxxxx Party may be bound; or (c) violates
any order, writ, injunction, judgment, decree, law, statute, rule, regulation or
governmental permit or license applicable to any Xxxxx Party, the Venture or the
Venture Business .
5.3 Title, Etc. AGNI is the sole owner of the AGNI Venture Interest and
has good and valid title thereto, free and clear of all Liens. Xxxxx is the sole
owner of the MMG Shares and has good and valid title thereto, free and clear of
all Liens.
5.4 Venture Property. Each Xxxxx Party has validly and effectively
transferred and contributed to the Venture all property, rights and assets
acquired by any Xxxxx Party from MMG and TVG pursuant to the LOI, the Joint
Venture Agreement and the Technology Transfer Agreement, in each case in such
form and in such condition as was received by such Xxxxx Party. Such transfer
and contribution was (and is) made by such Xxxxx Party free and clear of any
Liens created or permitted by any Xxxxx Party but without recourse (except as to
such Xxxxx Party's own actions) and without any representation or warranty as to
title or fitness for use. No Xxxxx Party has or claims any interest in any such
property, rights or assets. The representation and warranty of each Xxxxx Party
made in this Section 5.4 includes, but is not limited to, all right, title and
interest of any Xxxxx Party in and to the following property, rights and assets:
(a) All Products and Additional Products.
(b) All of the property and assets listed in paragraphs
1 and 2 of Schedule C to the Joint Venture Agreement.
(c) All intellectual property created by MMG or TVG for any
Xxxxx Party as work made for hire and any modifications, developments or
enhancements thereto.
(d) All ownership and proprietary rights to Off-Reservation
Bingo Play and any modifications, developments, or enhancements thereto,
including Proxy Play software, telephone order entry software, TV Bingo game
shows, subcontracts for proxy service and TV Bingo market research.
(e) All ownership and proprietary rights to the TV MegaBingo
Business, the AGN Xxxxxxx Xxxx Bingo Business, the AGN Web Site and the AGN
On-Line Services, and any modification, developments or enhancements thereto.
(f) All ownership and proprietary rights to TV MegaBingo
Business Intellectual Property and any modifications, developments or
enhancements thereto.
Notwithstanding the foregoing, the MMG Parties and the Venture
acknowledge and agree that the Xxxxx Parties have no further obligation to
transfer or contribute to the Venture any GPPV-Developed Products.
5.5 Legal Proceedings Etc. There is no claim, action, proceeding or
investigation pending or, to the knowledge of any Xxxxx Party, threatened
against or relating to or involving any Xxxxx Party or AGNJV with respect to the
Venture, the Venture Business, the AGNI Venture Interest or the MMG Shares
before any court or governmental or regulatory authority or body or which
questions or challenges the validity of this Agreement or any action taken or to
be taken pursuant to this Agreement or in connection with the transactions
contemplated hereby. No Xxxxx Party or AGNJV is subject to any outstanding
order, writ, judgment, injunction or decree of any court or governmental or
regulatory authority or body.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF MMG PARTIES
Each MMG Party, jointly and severally, represents and warrants to each
Xxxxx Party as follows:
6.1 Organization; Qualification; Authority. Each MMG Party is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation and each has the power and authority to make,
execute, deliver and perform this Agreement and to incur and perform the
obligations provided for herein, all of which have been duly authorized by all
necessary and proper corporate action, including shareholder action. Neither the
execution, delivery and performance of this Agreement by any MMG Party nor the
consummation by them of the transactions contemplated hereby conflict with or
will result in any breach or default of any provision of the Certificate of
Incorporation or Bylaws of any MMG Party. This Agreement has been duly and
validly executed and delivered by the duly authorized officers of each MMG Party
and constitutes the valid, legally binding and enforceable obligations of each
of them in accordance with the terms of this Agreement.
6.2 Consents and Approvals; No Violation. Neither the execution,
delivery and performance of this Agreement by any MMG Party (a) requires any
consent, approval, authorization or permit of, or filing with or notification
to, any Person including any governmental or regulatory authority; (b)
constitutes a breach or will result in a default under any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, agreement or other instrument or obligation of any kind to which MMG
Party is a party or by which any of them may be bound; or (c) violates any
order, writ, injunction, judgment, decree, law, statute, rule, regulation or
governmental permit or license applicable to any Xxxxx Party.
6.3 Legal Proceedings, Etc. There is no claim, action, proceeding or
investigation pending or, to the knowledge of the MMG Parties, threatened
against or relating to the MMG Parties before any court or governmental or
regulatory authority or body or against or involving any MMG Party which
questions or challenges the validity of this Agreement or any action taken or to
be taken by the MMG Parties pursuant to this Agreement or in connection with the
transactions contemplated hereby.
ARTICLE VII
COVENANTS OF THE PARTIES
7.1 Expenses. All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby will be paid by the party
incurring such costs and expenses, whether or not the transactions contemplated
hereby are consummated.
7.2 Further Assurances. Subject to the terms and conditions of this
Agreement, each of the parties hereto will use its Commercial Efforts to take,
or cause to be taken, all action, and to do, or cause to be done, all things
necessary under applicable laws and regulations to consummate the transactions
contemplated by this Agreement. On and from time to time after the Closing Date,
without further consideration, each Xxxxx Party will, at its own expense,
execute and deliver such documents to the MMG Parties as the MMG Parties may
reasonably request in order to consummate the transactions contemplated by the
Agreement. On and from time to time after the Closing Date, without further
consideration, each MMG Party will, at its own expense, execute and deliver such
documents to the Xxxxx Parties as the Xxxxx Parties may reasonably request in
order to consummate the transactions contemplated by this Agreement.
7.3 Filing.
(a) The MMG Parties promptly will make, or cause to be made,
all such filings and submissions under laws and regulations applicable to the
MMG Parties, if any, as may be required of the MMG Parties for the consummation
of the transactions contemplated hereby. The Xxxxx Parties promptly will make,
or cause to be made, all such filings and submissions under laws and regulations
applicable to the Xxxxx Parties, as may be required of the Xxxxx Parties, for
consummation of the transactions contemplated hereby. The parties hereto will
coordinate and cooperate with one another in exchanging such information and
reasonable assistance as may be requested in connection with all of the
foregoing.
(b) To the extent that the approval, consent or permission of
any governmental entity or other Person is necessary or desirable for the MMG
Parties to obtain in connection with the conduct of the Venture Business after
the Closing, including the issuance of such new permits as may be required for
the MMG Parties to conduct the Venture Business, the Xxxxx Parties shall, at the
MMG Parties' request and expense, reasonably cooperate with the MMG Parties in
obtaining all such approvals, consents or permissions .
7.4 Transfer Taxes. The Xxxxx Parties shall pay the cost of any
conveyance, deed, transfer, excise, stamp, sales, use, recording or similar
taxes or fees, arising out of the sale, transfer, conveyance or assignment of
the AGNI Venture Interest and the MMG Shares as contemplated hereby. The
covenants contained in this Section 7.4 shall survive the Closing Date until
fully discharged.
7.5 Public Announcements. Neither the Xxxxx Parties nor the MMG Parties
shall issue any press release or make any other public disclosure or
announcement concerning the transactions contemplated by this Agreement without
the prior written consent of the other parties hereto as to both the timing and
content of such press release or public disclosure, which consent shall not be
unreasonably withheld; provided that any party may make such disclosure as in
the opinion of counsel to such party is required by applicable law.
7.6 Confidentiality; Absence of Covenant Not To Compete.
(a) The Xxxxx Parties shall hold and shall cause each of their
Affiliates to hold in strict confidence (unless compelled to disclose by
judicial or administrative process or in making any filings with governmental
entities with respect to the transactions contemplated hereby or, in the written
reasonable opinion of its counsel, by other requirements of law) all documents
and information concerning any MMG Party, AGNJV or the Venture Business obtained
or furnished to or acquired or developed by it in connection with the Venture
Business and the transactions contemplated by the Joint Venture Agreement
(except to the extent that such information can be shown to have been (i)
previously known by the party to which it was furnished, (ii) in the public
domain through no fault of such party, or (iii) later lawfully acquired by the
party to which it was furnished from other sources not bound by a
confidentiality obligation with respect to such information), and no Xxxxx Party
will use, release or disclose such information to any other Person, except its
auditors and attorneys who need to know such information in the ordinary course
of their representation of the Xxxxx Parties.
(b) The MMG Parties shall hold and shall cause each of their
Affiliates to hold in strict confidence (unless compelled to disclose by
judicial or administrative process or in making any filings with governmental
entities with respect to the transactions contemplated hereby or, in the written
reasonable opinion of its counsel, by other requirements of law) all documents
and information concerning any Xxxxx Party obtained or furnished to or acquired
or developed by it in connection with the Venture Business and the transactions
contemplated by the Joint Venture Agreement (except to the extent that such
information can be shown to have been (i) previously known by the party to which
it was furnished, (ii) in the public domain through no fault of such party, or
(iii) later lawfully acquired by the party to which it was furnished from other
sources not bound by a confidentiality obligation with respect to such
information), and no MMG Party will use, release or disclose such information to
any other Person, except its auditors and attorneys who need to know such
information in the ordinary course of their representation of the MMG Parties.
(c) The Xxxxx Parties acknowledge and agree that, because of
the nature and subject matter of the provisions of Section 7.06(a), it would be
impractical and extremely difficult to determine actual damages in the event of
the breach of any such provisions. Accordingly, if any Xxxxx Party or any
Affiliate of any Xxxxx Party commits a breach, or threatens to commit a breach,
of any matter set forth in Section 7.06(a), MMG shall have the right to have the
provisions of Section 7.06(a) specifically enforced by any court having equity
jurisdiction, it being further acknowledged and agreed by the Xxxxx Parties that
any such breach or threatened breach will cause irreparable injury to MMG and
that an injunction may be issued against the breaching Xxxxx Party to stop or
prevent such breach or threatened breach. If any such action shall be
instituted, the breaching Xxxxx Party agrees to waive, and does hereby waive to
the fullest extent permitted by law, the defense that MMG has an adequate remedy
at law and agrees to interpose no opposition, legal or otherwise, as to the
propriety of pursuing specific performance as a remedy and agrees not to request
any bonding for the issuance of the relief sought.
(d) The MMG Parties acknowledge and agree that, because of the
nature and subject matter of the provisions of Section 7.06(b), it would be
impractical and extremely difficult to determine actual damages in the event of
the breach of any such provisions. Accordingly, if any MMG Party or any
Affiliate of any MMG Party commits a breach, or threatens to commit a breach, of
any matter set forth in Section 7.06(b), Xxxxx shall have the right to have the
provisions of Section 7.06(b) specifically enforced by any court having equity
jurisdiction, it being further acknowledged and agreed by the MMG Parties that
any such breach or threatened breach will cause irreparable injury to Xxxxx and
that an injunction may be issued against the breaching MMG Party to stop or
prevent such breach or threatened breach. If any such action shall be
instituted, the breaching MMG Party agrees to waive, and does hereby waive to
the fullest extent permitted by law, the defense that Xxxxx has an adequate
remedy at law and agrees to interpose no opposition, legal or otherwise, as to
the propriety of pursuing specific performance as a remedy and agrees not to
request any bonding for the issuance of the relief sought.
(e) Anything to the contrary contained in this Agreement, the
LOI or the Joint Venture Agreement (or in any other agreement between the
parties whether or not related thereto) notwithstanding, each of the Xxxxx
Parties and each of the MMG Parties and each of their respective Affiliates
shall be free to engage in any business whatsoever including, but not limited
to, a business that competes, directly or indirectly, with the Venture Business
or any other business or activity currently conducted, proposed to be conducted
or hereafter conducted by any such person.
7.7 Releases.
(a) In consideration of the promises and payments of the MMG
Parties made in this Agreement, and provided that the Closing shall have
occurred, each of the Xxxxx Parties, for and on behalf of their respective
Affiliates, officers, subsidiaries and affiliated companies, successors and
assigns, hereby release and forever discharge each of the MMG Parties and its
subsidiaries and affiliated companies (including AGNJV), successors and assigns,
and the officers, directors, shareholders, employees and agents of each of the
MMG Parties, and its and their respective officers, directors, shareholders,
employees and agents, including, in each case, any of the foregoing in their
individual as well as corporate capacities, of and from all liabilities,
obligations, manner of actions, causes of action, suits, debts, sums of money,
accounts, damages, judgments, executions, claims, counterclaims and demands
whatsoever, whether in law, equity or otherwise, known or unknown, that relate
to the period of time on and prior to the Closing Date including, but not
limited to, any claims arising under or with respect to the Joint Venture
Agreement and the other agreements and transactions entered into in connection
therewith; provided that the foregoing release does not release any right of the
Xxxxx Parties under this Agreement or with respect to any of the other Retained
Contract Rights.
(b) In consideration of the promises and payments of the Xxxxx
Parties made in this Agreement, and provided that the Closing shall have
occurred, each of the MMG Parties and the Venture, for and on behalf of their
respective affiliates, officers, subsidiaries and affiliated companies,
successors and assigns, hereby release and forever discharge each of the Xxxxx
Parties and its subsidiaries and affiliated companies, successors and assigns,
and the officers, directors, shareholders, employees and agents of each of the
Xxxxx Parties, and its and their respective officers, directors, shareholders,
employees and agents, including, in each case, any of the foregoing in their
individual as well as corporate capacities, of and from all liabilities,
obligations, manner of actions, causes of action, suits, debts, sums of money,
accounts, damages, judgments, executions, claims, counterclaims and demands
whatsoever, whether in law, equity or otherwise, known or unknown, that relate
to the period of time on and prior to the Closing Date including, but not
limited to, any claims arising under or with respect to the Joint Venture
Agreement and the other agreements and transactions entered into in connection
therewith; provided that the foregoing release does not release any right of the
MMG Parties under this Agreement or with respect to any of the other MMG
Retained Contract Rights.
ARTICLE VIII
CLOSING CONDITIONS
8.1 Conditions to Each Party's Obligations. The respective obligations
of the parties to consummate the transactions contemplated by this Agreement
shall be subject to each of the following conditions:
(a) No party shall be subject to any order, judgment, decree
or injunction of a court of competent jurisdiction or governmental body, agency
or official nor any applicable law or regulation or executive order which
prevents consummation of the transactions contemplated hereby.
(b) All filings required by applicable law shall have been
made and all consents thereunder with respect to the transactions contemplated
by this Agreement shall have been obtained.
8.2 Conditions to the Obligations of Xxxxx Parties. The obligation of
the Xxxxx Parties to consummate the transaction contemplated hereby shall be
further subject to the fulfillment on or prior to the Closing Date of each of
the following conditions:
(a) Each MMG Party shall have performed and complied in all
material respects with the agreements contained in this Agreement required to be
performed and complied with by it at or prior to the Closing Date.
(b) The representations and warranties of the MMG Parties set
forth in this Agreement shall be true and correct in all material respects as of
the date made and as of the Closing Date as though made at and as of the Closing
Date (except as otherwise contemplated by this Agreement).
(c) The Xxxxx Parties shall have received a certificate, dated
the Closing Date, certifying to the fulfillment of the conditions set forth in
paragraphs (a) and (b) of this Section 8.2 and signed on behalf of the MMG
Parties by an authorized officer of the MMG Parties.
(d) The Xxxxx Parties shall have received the consent of
Midlantic Bank, N.A., Xxxxx'x senior secured lender, to the transactions
contemplated by this Agreement.
8.3 Conditions to the Obligations of the MMG Parties. The obligation of
the MMG Parties to consummate the transactions contemplated hereby shall be
further subject to the fulfillment on or prior to the Closing Date of each of
the following conditions:
(a) Each Xxxxx Party shall have performed and complied in all
material respects with the agreements contained in this Agreement required to be
performed and complied with by it at or prior to the Closing Date.
(b) The representations and warranties of the Xxxxx Parties
set forth in this Agreement shall be true and correct in all material respects
as of the date made and as of the Closing Date as though made at and as of the
Closing Date (except as otherwise contemplated by this Agreement).
(c) The MMG Parties shall have received a certificate, dated
the Closing Date, signed by an authorized officer of Xxxxx Parties certifying to
the fulfillment of the conditions set forth in paragraphs (a) and (b) of this
Section 8.3.
ARTICLE IX
TERMINATION
9.1 Termination. This Agreement may be terminated at any time
prior to the Closing Date:
(a) By mutual written consent of MMG and Xxxxx.
(b) By written notice by either MMG or Xxxxx to the other
party if the Closing shall not have occurred on or before 5:00 p.m., local time
in Tulsa, Oklahoma, on July 10, 1996, unless such failure to occur is due to the
failure of the party seeking to terminate this Agreement to perform in all
material respects each of its obligations under this Agreement required to be
performed by it or its affiliate at or before the Closing Date.
(c) By the MMG Parties if there has been a material violation
or breach by any of the Xxxxx Parties of any agreement, representation or
warranty contained in this Agreement which has rendered the satisfaction of any
condition to the obligations of the MMG Parties specified in Section 8.3
impossible and such violation or breach has not been waived by the MMG Parties
or cured by the Xxxxx Parties within 15 days after written notice to the Xxxxx
Parties of such violation or breach.
(d) By the Xxxxx Parties if there has been a material
violation or breach by any of the MMG Parties of any agreement, representation
or warranty contained in this Agreement which has rendered the satisfaction of
any condition to the obligations of the Xxxxx Parties specified in Section 8.2
impossible and such violation or breach has not been waived by the Xxxxx Parties
or cured by the MMG Parties within 15 days after written notice to the MMG
Parties of such violation or breach.
9.2 Procedure and Effect of Termination.
(a) In the event of termination of this Agreement pursuant to
Section 9.1, this Agreement shall terminate, and in each case the transactions
contemplated hereby shall be abandoned, without further action by any of the
parties hereto, and there shall be no liability on the part of the parties,
except as set forth in Section 7.1, which Section shall survive the termination
of this Agreement and except that the foregoing shall not relieve any party from
liability for damages actually incurred as a result of breach by it of this
Agreement.
(b) If this Agreement is terminated as provided in Section
9.1, all filings, applications and other submissions made pursuant to this
Agreement shall, to the extent practicable, be withdrawn from the agency or
other person to which they were made.
ARTICLE X
SURVIVAL AND INDEMNIFICATION
10.1 Survival. The representations, warranties, covenants and
agreements of the parties hereto shall survive the execution and delivery hereof
and the delivery of all of the documents executed in connection herewith and
shall continue in full force and effect after the date hereof and after the
Closing Date for a period of one (1) year after the Closing Date, except that
(i) the representation and warranty of the Xxxxx Parties and the MMG Parties
contained in Section 5.1 and Section 6.1, respectively, shall survive without
limitation or until the expiration of any applicable statute of limitations, and
(ii) any covenants or agreements contained herein or made pursuant hereto which
by their terms are to be performed after the Closing Date shall survive until
fully discharged. The date until which the representations, warranties,
covenants and agreements of the parties hereto survive, as set forth herein, is
known as the "Expiration Date". From and after the Expiration Date, no party
shall be under any liability whatsoever with respect to any such representation
or warranty or any obligation or liability based upon such representation or
warranty, except for breaches as to which a party shall have given notice
(specifying, with reasonable particularity, facts establishing such breach) to
the other party or parties prior to the applicable Expiration Date. The
respective representations and warranties contained herein or in any
certificates delivered pursuant to this Agreement prior to or at the Closing
shall not be deemed waived or otherwise affected by any investigation made by
any party hereto.
10.2 Indemnification. Subject to the limitation set forth in
Section 10.1:
(a) Each Xxxxx Party, jointly and severally, hereby agrees to
indemnify, defend and hold harmless each MMG Party and any subsidiary or
Affiliate of any MMG Party, and any officer, director, stockholder, employee,
representative or agent of any thereof and their respective successors and
assigns from and against all Losses and Claims based upon, arising out of or
resulting from, any breach of any representation or warranty of such Xxxxx Party
that survives the Closing as provided in Section 10.1 and any covenant or
agreement of such Xxxxx Party contained in this Agreement.
(b) Each MMG Party, jointly and severally, hereby agrees to
indemnify, defend and hold harmless each Xxxxx Party and any subsidiary or
Affiliate of any Xxxxx Party, and any officer, director, stockholder, employee,
representative or agent of any thereof and their respective successors and
assigns, from and against all Losses and Claims based upon, arising out of or
resulting from, any breach of any representation or warranty of such MMG Party
that survives the Closing as provided in Section 10.1 and any covenant or
agreement of such MMG Party contained in this Agreement.
10.3 Notice of Claim. If any party hereto has suffered or incurred any
Loss or Expense or a third-party claim, whether pursuant to an administrative
proceeding, action at law, suit in equity, or otherwise ("Third-Party Claim") is
instituted which, if decided adversely to a party, would result in such party
suffering or incurring any Loss, such party shall give prompt written notice to
the party against which a claim for indemnification may be made pursuant to this
Agreement ("indemnifying party"), setting forth: (a) the facts or events, in
reasonable detail which indicate that such party has suffered or incurred such
Loss, (b) the Section or Sections of this Agreement (in addition to this Article
X) under which such party has suffered or incurred such Loss and Expense, (c)
the amount of such Loss and Expense (estimated, if necessary) or, in the case of
a Third-Party Claim, such party's then good faith estimate of the reasonably
foreseeable estimated amount of its claim for indemnification for such Loss and
Expense, and (d) the method of computation of the amount of such Loss and
Expense, any of which information shall be promptly amended by such party when
its knowledge of the facts or events and any resulting liability so warrant. No
party shall be liable for indemnification pursuant to Section 10.2 unless notice
of claim for such indemnification has been given in accordance with this Section
10.3 and on or prior to the applicable Expiration Date.
10.4 Defense of Third-Party Claim. The indemnifying party shall have
the right to conduct and control, at its expense and through counsel of its own
choosing, the defense of any Third-Party Claim, action or suit, but the
indemnified party may, at its election, participate in the defense of such
claim, action or suit at its sole cost and expense; provided that if (a) the
indemnifying party shall fail to defend any such claim, action or suit, (b) the
indemnifying party and indemnified party mutually agree or (c) the named parties
to such claim, action or suit (including any impeded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them, then the indemnified party may defend, through counsel
of its own choosing, such claim, action or suit and settle such claim, action or
suit, and recover from the indemnifying party the amount of any settlement to
which the indemnifying party consents or of any resulting judgment and the costs
and expenses of such defense, provided that the indemnified party shall not
compromise or settle any third-party claim, action or suit without the prior
written consent of the indemnifying party, which consent will not be
unreasonably withheld, continued or delayed.
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1 Amendment and Modification. This Agreement may be amended,
modified or supplemented only by a subsequent written agreement of the Xxxxx
Parties and the MMG Parties.
11.2 Waiver of Compliance. Except as otherwise provided in this
Agreement, any failure of any of the parties to comply with any obligation,
covenant, agreement or condition herein may be waived by the party entitled to
the benefits thereof only by a written instrument signed by the party granting
such waiver, but such waiver or failure to insist upon strict compliance with
such obligation, covenant, agreement or condition shall not operate as a waiver
of, or estoppel with respect to, any subsequent or other failure.
11.3 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or by facsimile or
three days after mailed by registered or certified mail (return receipt
requested), postage prepaid, to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice; provided,
however, that notices of a change of address shall be effective only upon
receipt thereof):
(a) if to The Xxxxx Parties to:
Xxxxx Pay-Per-View Inc.
000 Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
and by telecopy to: (000) 000-0000
(b) if to The MMG Parties, to:
Multimedia Games, Inc.
0000 Xx. Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
and by telecopy to: (000) 000-0000
with a copy to:
Hall, Estill, Hardwick, Gable, Golden & Xxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
and by telecopy to: (000) 000-0000
11.4 Assignment. This Agreement may not be assigned, in whole or in
part, by the parties hereto without the prior written consent of the parties;
provided that MMG or Newco, as the case may be, may assign its right to purchase
the MMG Shares or the AGNI Venture Interest to a person and in a manner that
does not involve a public offering (a "Permitted Designee")
11.5 Governing Law. This Agreement shall be governed by the laws
of the State of Oklahoma, without reference to principles of conflicts of law
which require that the substantive laws of another jurisdiction apply.
11.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.7 Interpretation. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement.
11.8 Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall be construed in all respects as if such
invalid or unenforceable provision were omitted. All provisions of this
Agreement shall be enforced to the full extent permitted by law.
11.9 No Third-Party Beneficiaries. Nothing contained in this Agreement,
expressed or implied, is intended or shall be construed to confer upon or give
to any Person other than the parties hereto and their successors or permitted
assigns, any rights or remedies under or by reason of this Agreement.
11.10 Entire Agreement. This Agreement, including the documents,
schedules, certificates and instruments referred to herein, is the entire
agreement and understanding of the parties hereto in respect of the transactions
contemplated by this Agreement. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein or therein. This Agreement supersedes
all prior agreements and understandings between the parties with respect to the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
MULTIMEDIA GAMES, INC.
By: /s/ Xxxx Xxxxxx
TV GAMES, INC.
By: /s/ Xxxx Xxxxxx
AGN VENTURER L.L.C.
By: /s/ Xxxx Xxxxxx
AMERICAN GAMING NETWORK, INC.
By: /s/ J. Xxxxx Xxxxxxx
CABLE VIDEO STORE, INC.
By: /s/ J. Xxxxx Xxxxxxx
XXXXX PAY-PER-VIEW INC.
By: /s/ J. Xxxxx Xxxxxxx
AMERICAN GAMING NETWORK, J.V.
By: /s/ Xxxxx Xxxxxxxxxx
Exhibits
A - Newco A Note
B - Newco B Note
C - Registration Rights Agreement
D - Assignment of AGNI Venture Interest
E - Xxxxxx Guaranty
F - MMG Guaranty
G - Venture Guaranty
