SECOND AMENDMENT TO AGREEMENT
This
Second Amendment to Agreement (this “Amendment”) is made
and entered into to be effective as of August 15, 2008, by and among Las Vegas
Gaming, Inc., a Nevada corporation (the “Company”), and IGT, a Nevada
corporation (“IGT”).
WHEREAS,
the Company and IGT are party to the Agreement dated July 17, 2008 (the “Original Agreement”),
as amended by the First Amendment to Agreement dated August 15, 2008
(together with the Original Agreement, the “Agreement”), pursuant
to which IGT advanced $1,500,000 to the Company; and
WHEREAS,
the Company and IGT desire to further amend the Agreement.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
and agreements contained herein, the parties hereto agree as
follows:
1. Defined
Terms. All capitalized terms in this Amendment not otherwise
defined herein have the meaning ascribed to such terms in the
Agreement. Unless otherwise specified, all section references in this
Amendment refer to sections of the Agreement.
2. Amendments. The
Company and IGT agree to amend the Agreement as follows:
a. Finalization of
Terms. Section 2 of the
Agreement is hereby amended by deleting such Section as it currently appears in
the Agreement in its entirety and replacing such Section in its entirety with
the following:
“Section
2. Finalization of
Terms. (i) In the event that IGT and the Company do not
execute definitive agreements concerning the Settlement by August 29, 2008, then
on October 30, 2008 (a) the Company will issue to IGT 750,000 shares of its
common stock, par value $.001 per share, such shares to be duly authorized and
validly issued and evidenced by a duly and validly executed share certificate
delivered to IGT on such date, and (b) IGT will have the rights set forth
below. If at any time after August 29, 2008, the Company determines
to take any action to license or otherwise dispose of any interest in any or all
patents owned or controlled by the Company that have one or more claims covering
the Company’s PlayerVision-related hardware, firmware, or software (“PVT”) based on the Company’s
currently existing technology and patent pool, the Company will first undertake
good faith negotiations to enter into an exclusive license with IGT on
commercially reasonable terms. The Company may not license any third
party or otherwise dispose of any interest in the PlayerVision technology and
their PVT patent, other than to end users and operators, until such good faith
negotiations have been concluded. Any license purportedly granted or disposition
made in conflict with these obligations shall be void. If such good
faith negotiations with IGT do not result in the grant to IGT of such an
exclusive license within a commercially reasonable
time,
such automatic right to enter into an exclusive license shall
expire. However, IGT shall then further have a first right of
refusal, exercisable for a commercially reasonable period after written notice
to IGT with respect to any licensing or disposition of any interest in PVT to
any third party by Company, to license on the same or better terms (for IGT) as
those being offered by Company to the third party, and the Company may not
abrogate IGT’s first right of refusal rights by licensing or disposing any such
interest to third parties prior to IGT exercising its first right of refusal
rights. (ii) The Company will have the option of returning to IGT $1,525,000 in
cash by wire transfer of immediately available funds, such funds to be received
by IGT no later than October 29, 2008, in which event the provisions of the
above Section 2(i) shall be entirely null and void and have no force or effect,
with no rights or obligations flowing therefrom.”
b. Exclusivity. The
Agreement is hereby amended by adding the following new Section 11:
“Section
11. Exclusivity. “Except
as provided below with respect to the Xxxxxx Media, LLC transaction, the Company
hereby covenants and agrees that prior to August 29, 2008 (a) it will not, and
will not permit any of its Affiliates (as defined below) to, initiate, solicit
or encourage (including by way of furnishing information or assistance), or take
any other action to facilitate, any inquiries or the making of any proposal
relating to, or that may reasonably be expected to lead to, any Competing
Transaction (as defined below), or enter into discussions or negotiate with any
Person (as defined below) in furtherance of such inquiries or to obtain a
Competing Transaction, or endorse or agree to endorse any Competing Transaction,
or authorize or permit any of the directors, managers, officers or employees of
the Company or any investment banker, financial advisor, attorney, accountant or
other representative retained by any member of the Company or any Affiliate of
any member of the Company to take any such action; and (b) the Company will
promptly notify IGT of all relevant terms of any such inquiries and proposals
received by any member of the Company, any Affiliate of any member of the
Company or any such director, manager, officer, employee, investment banker,
financial advisor, attorney, accountant or other representative relating to any
of such matters, and if such inquiry or proposal is in writing, the Company will
promptly deliver or cause to be delivered to IGT a copy of such inquiry or
proposal. For the purposes of this Agreement, “Affiliates” is used as
defined in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended. For purposes of this Agreement, “Competing Transaction” means
any of the following (other than the transactions contemplated by this
Agreement, as amended) involving the Company: (i) any merger, consolidation,
share exchange, business combination or similar transaction; (ii) any sale,
lease, exchange, mortgage, pledge, transfer or other disposition of the assets,
other than sales of finished goods inventory in the ordinary course of business;
or (iii) any offer for any of the equity capital of the Company.” For the
purposes of this Agreement, “Person” means an individual,
corporation, partnership, association, joint stock company, limited liability
company, joint venture, trust, Governmental Entity, unincorporated organization
or other legal entity. Notwithstanding the foregoing, the Company may
enter into a transaction with, and issue up to 750,000 shares of common stock
to, Xxxxxx Media, LLC or its affiliate.”
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3. Continuation of the
Agreement. Except as otherwise expressly set forth herein, all
other terms and conditions of the Agreement remain in full force and effect
without modification.
4. Governing Law;
Jurisdiction. THIS AMENDMENT WILL BE GOVERNED BY AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEVADA WITHOUT
REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD RESULT IN THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION.
5. Counterparts. This
Amendment may be executed in any number of counterparts, each of which will be
deemed to be an original, but all of which, when taken together, will constitute
one and the same instrument.
6. Invalidity. In
the event that any one or more of the provisions contained in this Amendment or
in any other instrument referred to herein is, for any reason, held to be
invalid, illegal or unenforceable in any respect, then to the maximum extent
permitted by law, such invalidity, illegality or unenforceability will not
affect any other provision of this Amendment or any other such
instrument.
7. Interpretation. The
headings contained in this Amendment are for ease of reference only and shall
not affect the meaning or interpretation of this Amendment.
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REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and
delivered as of the date first above written.
LAS VEGAS
GAMING, INC.
By: /s/ Xxxxx X.
Xxxxxxx
Name:
Xxxxx X.
Xxxxxxx
Title:
Chief Financial
Officer
IGT
By: /s/ Xxxx
Xxxxxxxxx
Name:
Xxxx
Xxxxxxxxx
Title:
Exec. Dir. Corp.
Strategy
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