EXHIBIT 10
AGREEMENT WITH
XXXXX XXXXXXX TELEVISION, INC.
AGREEMENT
This Agreement is made and entered into as of this 8th day of October
2003, by and between Xxxxx Xxxxxxx Television, Inc. ("SST"), a California
Corporation of 0000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx Xxxxx, XX 00000 on the
one hand and Win Win, Inc. ("WWI"), a Nevada Corporation of 0000 Xxxxxxxxxx Xxxx
Xx., Xxx Xxxxx, XX 00000, on the other hand.
This Agreement is made with reference to the following facts:
RECITALS
A. WHEREAS, SST is in the business of creating, developing and producing
game shows including but not limited to television game shows associated or
affiliated with state lotteries;
B. WHEREAS, WWI is in the international gaming business, including but not
limited to the business of conducting government/state sponsored lotteries and
has developed certain contacts and opportunities to initiate and conduct, on an
ongoing basis, lotteries in certain provinces in China and other countries.
C. WHEREAS, the parties are desirous of having SST create, develop and
produce a presentation pilot of a lottery game television show for presentation
to various parties and/or governmental agencies associated with lotteries in
China and other Asian countries.
NOW THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Subject to WWI providing the funding for the production thereof, as
more particularly set forth below, and payment to SST of it's fee,
as more particularly set forth below, SST will develop and produce a
10 to 15 minute presentation pilot ("Pilot") for presentation to and
review by various parties associated with government sponsored
lotteries in China and other Asian countries; including but not
limited to various regulatory agencies governing same. The Pilot
will be developed by SST in consultation with WWI or its
representative for use solely for the purpose of obtaining
regulatory approval from the appropriate governmental agencies and
approval from the appropriate business partners and financiers of
the production and broadcast of a weekly lottery television game
show based on the Pilot (the "Show") in selected provinces in China
and in other countries outside North America.
2. Prior to commencement of production of the Pilot, SST will prepare
and present to WWI a proposed budget ("Pilot Budget") for same;
which WWI shall approve or disapprove in its reasonable discretion
within five (5) days thereafter. Once the Pilot Budget is approved,
WWI shall place the funds set forth therein as required for the
production of the Pilot in a segregated production account from
which SST may disburse funds substantially in accordance with the
Pilot Budget.
3. SST will deliver the Pilot to WWI within thirty (30) days of
placement of the amounts set forth in the approved Pilot Budget in
the aforesaid segregated account and upon payment to SST of a fee of
$5,000.
4. Upon receipt of the Pilot from SST, WWI shall have an exclusive
twelve (12) months option ("Option"), exercisable by WWI in writing
to require SST to produce a minimum of 26 episodes and a maximum of
52 episodes of the Show or a National Show (as hereinafter defined)
substantially similar in style and format to the Pilot and pursuant
to the following terms and conditions:
a) SST will develop and produce the Show and/or the National Show
in conjunction with WWI or its representatives, subject to a
mutually approved budget ("Budget") and production and
delivery schedule ("Production Schedule") as set forth below
and the provision of funding thereof by WWI.
b) In connection with the foregoing, SST shall prepare a proposed
Budget for the production of the Show and/or National Show and
submit same for approval by WWI in its reasonable discretion;
and
c) In addition to the amounts set forth in the Budget for the
Show, in respect to each episode of the Show, WWI will pay SST
a license fee of $10,000 per Episode ("License Fee") payable
as follows;
i. $5,000 upon commencement of production of each
episode of the Show; and
ii. At the sole exclusive option of SST, either:
(A) $5,000 upon delivery of each episode or;
(B) $5,000 in common stock at Market Price in
WWI, upon delivery of each episode;
provided, however, that WWI shall have the
right to reject this request and pay such
$5,000 in cash if the Market Price on the
date of said delivery is less than $1.00 per
share.
(C) The election to receive the second half of
the license fee in cash or in common stock,
as set forth above shall be made by SST and
communicated to WWI no later than 15 days
prior to the scheduled delivery of each
episode.
d) Notwithstanding the provisions of Paragraph 4(c) above, if WWI
is able to sell the show on a national basis in China
("National Show"); i.e. whereby SST will produce one show,
certain segments of which may be customized for individual
Provinces within China, the License Fee payable to SST for
each Episode of any said National Show shall be $20,000 per
each episode thereof in lieu of the $10,000.00 per episode
referred to in Paragraph 4(c) above. Said $20,000 license fee
shall include the licensed rights to each customized version
of each Episode thereof (but not the additional production
costs thereof as set forth in the Budget) and shall be payable
as follows:
i. Ten Thousand Dollars ($10,000) upon commencement of
production of each such episode of the National Show;
and
ii. At the sole exclusive option of SST, either;
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(A) Ten Thousand Dollars ($10,000) upon delivery
of each said episode (including the
customized versions thereof); or common
stock in WWI having a value at Market Price
as of the date each said delivery of $10,000
upon delivery of each said episode;
provided, however, that WWI shall have the
right to reject this request and pay such
$10,000 in cash if the Market Price as of
said date is less than $1.00 per share.
(B) The election by SST to receive the second
half of the license fee in cash or in common
stock, as set forth above shall be made by
SST and communicated to WWI no later than 15
days prior to the scheduled delivery of each
episode.
e) The Show will be produced by taping 1 to 5 episodes per day.
f) WWI shall, no later than fifteen (15) days prior to
commencement of taping of each thirteen (13) episodes place
the funds required under the Budget for the production and
delivery of the first episode in a segregated production
account for disbursal by SST in accordance with the Budget.
WWI will place additional funds required to produce each
successive episode upon notification that the prior episode
has been completed. It is contemplated that production of the
Show will take place pursuant to a schedule providing for the
taping of approximately thirteen (13) shows over a one (1)
week period every TBD weeks;
5. Should WWI obtain governmental approval for the production and
broadcast and/or distribution of a lottery game Show in other
provinces in China or in other countries in Asia within one (1) year
after delivery to WWI of the Pilot, SST shall have the exclusive
option to produce said shows in said other markets pursuant to the
same terms and conditions as set forth above.
6. SST shall issue a license to WWI, its affiliates and/or assignees of
the right to broadcast the Show and/or the National Show an
unlimited number of times in China and other Asian countries, as
appropriate. SST shall be the exclusive owner of the worldwide
copyright in and to the Pilot, the Show and the National Show (and
each episode thereof) as well as the exclusive owner of any and all
intellectual property embodied therein. The parties acknowledge that
the style and format, the Pilot, the Show and the National Show
represent valuable proprietary assets of SST which shall remain
SST's exclusive property. However, should SST be unable to elect not
to produce the Show or the National Show for WWI, WWI may produce
the Show or the National Show or engage others to produce the Show
or the National Show utilizing the same or similar style and format
as the Pilot so long as WWI pays SST the License Fee set forth above
in respect to each episode so produced by WWI or a third party on
WWI's behalf. Without limiting the foregoing, SST shall be the sole
owner in perpetuity throughout the universe exclusively of any and
all right including without limitation (copyright and trademark) in
and to the Pilot, the Show, the National Show, the format, style and
title thereof, the shooting scripts, preliminary versions of
scripts, and any outtakes produced pursuant hereto. After the Show
is produced and broadcast in China, if WWI is required by the
Chinese lottery or broadcaster with whom it contracts in China,
despite WWI's best efforts to retain SST as the producer of the
Show, to utilize a different and local producer of a lottery show
and, pursuant thereto, WWI is involved in the production of a
lottery, television show in China, WWI may proceed therewith so long
as WWI pays SST a fee of $2,500 per episode of such other lottery
show so produced. However, for avoidance of doubt, if said other
lottery television show so produced is substantially similar to the
style and format of the Show, the license fees set forth above in
paragraphs 4 c) and d) shall apply thereto in lieu of the aforesaid
$2,500.00 per episode fee.
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7. In respect to all creative decisions relating to the Show and/or the
National Show, such as (without limitation) selection of the host,
writers, other creative personnel, and the content hereof, same
shall be subject to the mutual approval of SST and WWI. All
approvals shall be exercised in a timely manner with respect to the
key elements of the Pilot, the Show and/or The National Show. In
respect to approvals required hereunder, WWI shall designate an
authorized representative who shall make reasonable good faith
efforts to respond to SST's requests for approvals within five (5)
business days, or, if necessary for the purposes of urgent
production decisions, within a shorter time.
8. Editing and Narration. WWI shall have the right to edit the Pilot,
the Show and/or the National Show for purposes of, including but not
limited to, rescheduling, formatting, inserting commercials and to
comply with WWI's or governmental standards and practices, provided
however that WWI shall not have the right to edit the Pilot or Show
so as to remove SST's credits. Without limiting the foregoing, WWI
shall have the right to re-narrate the Pilot, the Show and/or the
National Show including without limitation, dubbing in all
languages; which shall be done, if at all, at WWI's sole cost and
expense.
9. SST shall deliver to WWI the materials set forth in the attached
Schedule A on or before the delivery date set forth in the attached
Schedule A on or before the delivery date set forth in the mutually
agreed Production Schedule.
10. SST warrants and represents that, subject to third party agreements,
it has the right to enter into this agreement, to grant all rights
granted herein, and to perform all of SST's obligations hereunder,
and that the exercise by WWI of it's rights hereunder, including
without limitation, the exhibition, promotion, publicity and
advertising use of the Pilot the Show and/or the National Show or
any party thereof as granted herein shall not violate the rights of
any third party.
11. In connection with the foregoing, SST shall indemnify WWI and hold
WWI harmless from and against any claims, damages, liabilities,
costs and expenses excluding consequential damages and lost profits,
including but not limited to reasonable outside counsel fees
("Liabilities"), relating to the Pilot, the Show or the National
Show or arising from the exhibition, broadcast or other distribution
or exploitation of the Pilot, the Show or the National Show in the
territory in respect to which it is licensed by SST to WWI and
arising out of any breach of any material warranty or representation
made by SST herein, and any promotional use of the Pilot or Show or
the National Show or any elements thereof in any manner and in any
media herein licensed to WWI by SST (but not as a direct endorsement
of any product or beyond the scope of the license set forth herein),
including without limitation, clips, photographs and music (except
that WWI will not use specific elements which SST notifies WWI in
writing are not available for promotion of the Pilot and/or the Show
and/or the national Show).
12. WWI shall indemnify SST and hold SST harmless from and against any
and all liabilities relating to:
a. material furnished by WWI to SST in respect to the promotion
and/or production of the Pilot and/or the Show and/or the
National Show;
b. any material additions or alterations made to the Pilot or the
Show or the National Show by WWI or it's representatives;
and/or
c. any additions made by WWI to any promotional materials
furnished by SST to WWI. The foregoing indemnification and
hold harmless shall include but not be
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limited to reasonable outside counsel fees relating to the
defense of any claims or causes of action asserted against SST
in respect to which the foregoing indemnification and hold
harmless applies.
13. SST shall not be liable for delays in delivery caused by WWI, or
acts of force majeure (i.e. if the production of the Pilot and/or
the Show and/or the National Show is prevented or cancelled because
of act of God, inevitable accident, fire, earthquake, lock-out,
strike, or other labor disputes, riot, or civil commotion, epidemic,
act of public enemy, enactment, rule, order or act of government or
government instrumentality [whether Federal provincial, local or
foreign], failure of technical facilities, failure or delay of
transportation facilities or other cause of a similar or different
nature not reasonably within SST's control). SST shall not be
obligated to deliver such Pilot or episode of the Show or the
national Show and WWI shall not be obligated to make any payment to
SST in connection therewith for so long as any such force majeure
shall continue. In addition, if delivery of the Pilot or any episode
of the Show or the National Show is prevented or delayed for thirty
(30) days or more, WWI shall have the right to prospectively cancel
its order of episodes of the Show and/or the National Show if
production thereof has not been completed and shall further have the
right to have the funds in the segregated production account
remaining after payment of all accounts payable in respect to the
production as of said date (including but not limited to payment of
cancellation or early termination penalties and/or assessments and a
reasonable reserve for claims based thereon) and not expended or
irrevocably committed prior to such event of force majeure and
notice of cancellation by WWI refunded to WWI.
12. Should any part or provision of this Agreement, for any reason, be
declared invalid, void or unenforceable, the remaining portions and
provisions shall continue in full force and effect.
13. Failure of any party hereto, in any one or more instances, to
enforce any of the rights arising in favor of said party in
connection with this Agreement, or to insist upon the strict
performance of this Agreement's terms, conditions or covenants,
shall not be construed as a waiver or a relinquishment of any such
rights for future breach or enforcement thereof.
14. Except as set forth herein above, this Agreement shall inure to the
benefit of and be binding upon the parties hereto, their heirs,
representatives, successors and assigns.
15. All notices required by this Agreement shall be in writing and shall
be served personally or mailed by certified mail, return receipt
requested, to the address of the parties hereinafter specified, or
to such other addresses the parties may indicate in the future by
written notice in accordance herewith. A copy of all notices to
Xxxxx Xxxxxxx Television, Inc. shall be sent via certified mail and
facsimile to Xxxxxx X. Xxxx, Esq., Xxxxxxxx, Xxxxxxx & Xxxxxxx, 0000
Xxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000,
facsimile number (000) 000-0000.
16. The Recitals as set forth above in paragraph A through C shall be
deemed to be a part of this Agreement and shall be incorporated as
warranties and representations by each party to the other, as
appropriate.
17. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and may not be amended or
modified except in writing.
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18. This Agreement shall be construed in accordance with Laws of
California pertaining to agreements entered into and wholly
performed within said State.
19. This Agreement is not intended to create a partnership, joint
venture or employer/employee relationship between any of the parties
hereto. This Agreement is not intended as an agreement entered into
for the benefit of a third party.
20. This Agreement may be signed in counterparts which, when considered
together, shall be regarded as one completely signed document.
21. The parties hereto agree to execute any writings, instruments or
applications necessary to carry out the intent of this Agreement.
22. Neither party hereto shall be deemed to be in breach or default of
any of its obligations hereunder unless and until the other party
shall have given the alleged breaching or defaulting party specific
written notice by certified or registered mail, return receipt
requested, of the nature of such breach and the alleged breaching
party shall have failed to cure the breach or default within thirty
(30) days after receipt of said written notice. In the event that
the alleged breach or default is not cured as described herein, the
other party may terminate this agreement by written notice to the
breaching party, which must be sent within thirty (30) days from the
expiration of said thirty (30) day period.
23. Except as otherwise provided in this contract all rights and
remedies herein or otherwise shall be cumulative and none of them
shall be in limitation of any other right or remedy.
24. In the event any action, suit, proceeding or arbitration arising
from or based upon this contract is brought by either party hereto
to enforce or interpret the terms hereof the Judge, Magistrate or
Arbitrator adjudicating said dispute may, in its discretion, award
the prevailing party, in addition to any other relief granted, its
reasonable attorney's fees in connection with the prosecution of
said action, suit, proceeding or arbitration in addition to the cost
of such action, suit, proceeding or arbitration, but may not award
punitive or consequential damages.
25. Governing Law; Consent to Jurisdiction. (a) The interpretation and
construction of this Agreement, and all matters relating hereto,
shall be governed by the laws of the State of California applicable
to contracts made and to be performed entirely within the State of
California.
(b) Any proceeding, action, litigation or claim (a "Proceeding") arising
out of or relating to this Agreement or any of the transactions contemplated
herein may be brought in the courts of the State of California, County of Los
Angeles, or, if it has or can acquire jurisdiction, in the United States
District Court for the Central District of California, and each of the parties
irrevocably submits to the exclusive jurisdiction of each such court in any such
Proceeding, waives any objection it may now or hereafter have to venue or to
convenience of forum, agrees that all claims in respect of the Proceeding shall
be heard and determined only in any such court and agrees not to bring any
Proceeding arising out of or relating to this Agreement or any of the
transactions contemplated herein in any other court. The parties agree that
either or both of them may file a copy of this paragraph with any court as
written evidence of the knowing, voluntary and bargained agreement between the
parties irrevocably to waive any objections to venue or to convenience of forum.
Each party hereto hereby consents to process being served in any such action or
proceeding by the mailing of a copy thereof to the address set forth opposite
its name below and agrees that such service upon receipt shall constitute good
and sufficient service of process or notice thereof. Nothing in this paragraph
shall affect or eliminate any right to serve process in any other manner
permitted by law.
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26. As used herein, the masculine, feminine, or neuter gender, and the
singular or plural number shall each be deemed to include the others
whenever the context so indicates.
27. Each party warrants to the other that it is free to enter into this
Agreement and not subject to any conflicting obligation or
disability which will or might prevent or interfere with the
execution or performance of this Agreement by said party.
28. This Agreement shall be construed without regard to the identity of
the person who drafted the various provisions hereof. Each and every
provision of this Agreement shall be construed as though the parties
participated equally in the drafting of the same. Consequently, the
parties acknowledge and agree that any rule of construction that a
document is to be construed against the drafting party shall not be
applicable to this Agreement.
29. Each party hereto agrees to indemnify the other and hold the other
harmless from and against any and all damages or liability attorneys
fees and court costs occasioned by said other party's breach of any
warranty representation or agreement contained herein.
30. Notwithstanding any other provision contained herein, SST agrees
that for a twelve (12) month period commencing on the date hereof,
it will refrain from any negotiations, discussions or entering into
any agreements with parties providing, wishing to provide or
contemplating the provision of a lottery television show to or for
or in all markets outside North America which WWI intends to pursue.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the
date and year first indicated above. "SST"
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Xxxxx Xxxxxxx, President,
Xxxxx Xxxxxxx Television, Inc.
Its: President
"WWI"
By: /s/ Xxxxxxx Xxxxxx
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Its: WinWin, Inc.